Kennedy, Michael Ray ( 2015 )

/Z Z.H- IS
Cause Number
IN THE COURT OF
MGlHAi
CRIMINAL APPEALS
rn)IDT RECEIVED IN
OF TEXAS COURT OF CRIMINAL APPEALS
MOV 13 2015
Ab&Acosta, Clerk
MICHAEL RAY KENNEDY
(Appellant)
FILED IN
VS. COURT OF CRIMINAL APPEALS
The State of TEXAS
(Appellee) Abel Acosta, Clerk
APPELLANTS PETITION FOR DISCRETIONARY REVIEW
Appeal in Cause Number 67.789-E In The 108th
District Court of Potter County TEXAS.
Michael Ray Kennedy
Appearing Pro-Se
Stevenson Unit TDCJ
1525 FM 766
Cuero,TEXAS 77954
ORAL ARGUMENT
"REQUESTED"
TABLE OF CONTENTS Pages
STATEMENT OF THE CASE ._2
PROCEDURAL HISTORY ._2
STATEMENT REGAURDING ORAL ARGUMENT .III
LIST OF AUTHORITYS .IV.V.VI.
QUESTION OF REVIEW': .2,3.
QUESTIONS FOR REVIEW NUMBER ONE . 3
Was the court of appeals correct over ruling motion for the
rehearing,when there was constutional error,restraints or Interest of
justice requireing appellate court to hear new issues on(Due Process)
violations.
Reasons for Review -i
* * * «-?
QUESTIONS FOR REVIEW NUMBER TWO ... 5
Was Trial Attorney ineffective for not filing motion to qualify
expert and to conduct gatekeeper hearing and failing to file motion for
ballistics testing.failing to file motion to suppress evidence.
Failure to Investigate. >># 5
QUESTION FOR REVIEW NUMBER THREE 10
Was appeal attorney ineffective for raising only one ground in brief,
Failing to allege harm in brief that officer was not qualified to testify
as expert.Was appeal attorney ineffective for not raising sufficent evide
nce,claim as well as whether circumstantial evidence was legally sufficie
nt, to establish guilt and failing to investigate a text message not
registered to appellant. ... 10
I.
Question for Review four (Continued) -45
Was the Seventh Court of Appeas Correct in Denying both due
process and equal protection of law to impeach two witnesses with
^Jdence of prior crime of moral turpitude as permitted by rule
609(a) Tx.R.of evidence Attempting to preserve error in amened
motion for new trial.
REASON F0 REVIEW IS
Question for Review Number Five (5
Was
was court of €r±tainalr.Appealsctfi;:err©Endenying:motion to appoin t
counsel.Was the court of appeals seventh district Amarillo,Tex„
c
as
m error dismissing motion for forensic analysis and testing and
motion for appointment
app of counsel..
Reason for Review «5
PRAYER . 18
CERTIFICATE OF SERVICE
APPENDEX
AFFIDAVIT OF GLENDA PEMBERTON EXHIBITS
REPORTER RECORDS VS OPINION OF COURT
MOTION FOR FORENSIC TESTING
•__864 S.W.2d 50 (Tex.Crim.App.1993) 3
Smith V.Robbins 528 U.S. 259 (2000) ~~3
Evitts V. Lucey 469.U.S. 387 105 S.CT 830,831 L.Ed 2d 821 (1985) _3
Wiggings V.Smith 539 U.S. 510 (2003) 3,9
ExParte White 160 S.W.3d 46,53 (Tex.Crim.App.2004) 4,7
Vaughn V State 931 S.W.2d 564,566(Tex.Crim.App.1996) 4
Russean V.State 171 S.W.3d 871,881(Tex.Crim.App.2005) _4
Powell V.Alabama 287 U.S. 45,53. S.CT 55,77 L.ED 158 (1932) 4,6
Estate of Rogers V.Comm's 320 U.S. 410,413(1943) Frankurter Jr. _5
In Rochelle V.State 791 S.W.2d 121 (TEX.CRIM.APP.1990) 5,12,15
ExParte McPherson 32 S.W.3d 860,861(Tex.Crim.App.2000) 5,9
McMann V.Richardson 397 U.S. 759,771 n.14 90 S.CT 1441,1449
25 L.ED 2d 763 (1970) 6
United States V. Morrison 449 U.S.361,364. 101 S.CT 665,667.66 f
L.ED 2d 564 (1981) 6
Cuyler V.Sullivan 446 U.S. 335,343.100 S.CT 1708,1715.64 L.ED
2d 333 (1980) 6
Anders V. California 386 U.S.738,743. 87 S.CT.1396,1399.18
L.ED 2d 493 (1967) 6
Strickland V.Washington 466 U.S.668.104 S.CT 2052.80 L.ED
2d 694 (1984) 6,8
Hernandez V.State 726 S.W.2d 53,57(Tex.Crim.App.1986) _6
United States V.Cronic at 659.n.26.104 S.Ct at 2047 N.26 6
Kelly V. 824 S.W.2d 568 (TEx.Crim.App.1992) 7,8
Robinson 923 S.W.2d at 557 ~
Maritime Overseas Corp 971 S.W.2d at 409 7
Austin V.Kerr McGee Refining Corp 25.S.W.3d 280,285 (Tex.App.
Texarkana 2000) 7
Crutcher V.State 481 S.W.2d.ll3 (Tex.Crim.App.1972) _8
Tovar V.State 221 S.W.3d 185,190-91(Tex.App.Houston 1st Dist 2006;
NO Pet) 8
Hartman V.State 946 S.W.2d. 60 (Tex.Crim.App.1997) _8
Daubert V.Merrell Dow Pharm,Inc 509. U.S. 597,594.113 S.CT 2786
125 L.ED 2d 469(1993) 8
Kumbo Tire Co V. Carmichael 526 U.S. 137 (1999) 8
IV.
McBride V.State 838 S.W.2d 248 at 251 9,17
Sims V.Livesay 970 F.2d 1575 (CA.1992) 9
Evitts V.Lucey 469 U.S.387.105 S.CT 830.83 L.ED 2d 821(1985) 10
Lofton V.Whitley 905.F.2d 885.n.p.887 10
Haynes V. State 790 S.W.2d 824,827(Tex.Crim.App.1990) 10
United States V. Cronic Supra at 658.104 S.CT at 2046(Const Violation 10
Reyes V.State 849 S.W.2d 812,815(Tex.Crim.App.1993) 11
Morales V.State 32 S.W.3d 862,867 (Tex.Crim.App.2000) 11
Vas Quez 830 S.W.2d at 951 12
In Stone V.State 17 S.W.3d 348 (Tex.App.Corpus Crristi 2000) 13
Jackson V.Virgina 443 U.S. 307.99 S.CT 2781.61 L.ED 2d 560(1979) 13,14
Dewberry V State 4,S.W.3d 735,740(Tex.Crim.App.1999) 13,14
Ross V.State 133 S.W.3d. 618,620(Tex.Crim.App.2004) 13
Borchardt V.State 367.MD.91.139,140.786.A.2d 631,660(2001) 14
In Black V.State 358 S.W.3d 823,830(Tex.App.Fort Worth 2012) 14
In Campbell V.State 320 S.W.3d 338,344 (Tex.Crim.App.2010) 16
U.S. V. Bass 712.F.Supp.2d.931(D.Neb.2010) 17
Littrell 439 F.3d at 882 17
United States V.Eley 723.F.2d.1522,1526 17
In Zillender V.State 557.S.W.2d 515,517 (Tex.Crim.App.1977) 15
Chambers V.Mississippi 410.U.S.284(1973) 12
Wiggins V.Smith 539 U.S.522.L.ED.2d.471.123.S,CT.2527(2003). 14
Mooney V.State 817.S.W.2d.693,697(Tex.Crim.App.1991). 15
V.
CONSTITUTIONS
Sixth and Fourteenth Amendments U.S. Const. Art. 1 Sec.10 Tx. Constitution:
STATUTES
TEX.R.App.P.2 (b)
TEX.Rule.Evidence 702.
Tex.Rule.Evidence 104(a)and (c)
Tex.Rule.Evidence 401
Tex.Rule.App.P. 33.1(a)
Tex.Rule.Evidence (a)(2) and 103 (c)
VI.
Number
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
MICHAEL RAY KENNEDY (Appellant)
Vs.
The State Of TEXAS ( Appelle)
Appellants Petition for Discretionary Review
Appeal in Cause Number 67.789-E
In The 108th District Court of
Potter County, TEXAS
To The Honorable Judges of the Court of Criminal Appeals;
Comes Now Michael Ray Kennedy. Appellant in the Above Styled
and Numbered Cause and Files this Petition for Discretionary Review
of the Decissions of the Court of Appeals.
Seventh District Which Affirmed his Convicton also Over-Ruling Motion
for Rehearing and Court of Appeals and Seventh District of Appeals
Denied Motion for Forensic Testing. Compelling to Cause, To Exercise
Discreation.
page 1
STATEMENT OF THE CASE
On October 30,2013 the Appellant was Indicted for the Second Degree
Felony Offence of Aggravated Assault with a Deadly Weapon,With (2) Two
Enhancements. A Trial on All Issues was Conducted before a Jury on Sept
2 Through 9/3/2014.
Upon Appellants Plea of Not Guilty, The Jury Found the Appellant Guilty
and then Retired to Delibrate and Returned a Verdict of 29 Years Impri
sonment, with finding of True as to Each Enhancement Paragraph.
On September /29/2014. Appellant Filed A Motion for New Trial The Amend-
-ed Motion was filed on October/8/2014.
PROCEDURAL HISTORY
Appellants Direct Appeal was to the Seventh District of Amarillo
Texas Court of Appeals. On July/16/2015. Affirmed Conviction.
A Motion for Rehearing was Filed Pro-Se on 8/4/2015 OVERRULED, by Seven-
-th Court of Appeals Amarillo on 8/26/2015.
A Couple of Motions for Forensic Testing was filed.
One to the Seventh Court of Appeals and to the Court of Appeals. One
was Denied to Provide Appointment of Counsel, The other was Denied
Appearing Loss of Plenary Power.
Questions for Review
(1. Was the Court of Appeals Correct Overruling Motion for Rehearing
When there was Constitutional Error Restraints or Interest of
Justice Require Appellate Court to hear New Issues [Over Due Process]
Violations.
(2. Was Trial Attorney Ineffective for Not Filing Motin to Qualify
Expert and to Conduct GateKeeper Hearing and failing to file
Motion for Expert for Forensic Tests,Failing to file Motion to
Suppress Evidence,Failure to Investigate.
(3. Was Appeal Attorney Ineffective for Raising Only One Ground in
Brief, Failing to Allge Harm in Brief that Officer was Not Even
Qualified to Testify as an Expert. Was Attorney for Appeal In-
-effective for Not Raising Sufficant Evidence Claim as well as
page 2
Whether Circumstantional Evidence was Legally Sufficent to
Establish Guilt and Failed to Investigate A Text Message Not
Registered to Appellant.
(4. Was The Seventh Court of Appeals Correct in Denying both Due
Process and Equal Protection of Law to Impeach of Two Witness
es with Evidence of Prior Crime of Moral Turpitude as Permit-
-ted by Rule 609(a) Tx.R.of Evidence Attempting to Preserve
Error in Amajjed Motion for New trial.
(5. Was Court of Criminal Appeals in Error Denying Motion to
Appoint Counsel. Was the Court of Appeals Seventh District
Amarillo Texas. In Error Dismissing Motion for Forensic Analy
sis and Testing and Motion for Appointment of Counsel.
QUESTIONS FOR REVIEW: Number One
Was The Court of Appeals Correct Overruling Motion for Rehearing,
When there was Constitutional Error Restraints or Interests of Justice
Require Appellate Court to Hear New Issues. Attorney Failed to Pre
serve [DUE PROCESS] Violations.
REASON FOR REVIEW
Motion for Rehearing is a Helpful Tool for Focussing on an adverse
Determenation. Farrell V.State 864 S.W.2d. 501(Tex.Crim.App.1993).
Appeal Attorney was Ineffective,SEE Smith V.Robbins 528 U.S. 259(2000)
and Trial Attorney also. Citing Evitts V.Lucey 469 U.S. 387.105.S.CT
830.83 L.ED 2d 821 (1985). Being Constructively Denied Assistance of
Counsel on Appeal Because his Attorney Fialed a Brief which did Not
Assert any Arguable Error Therefore Prejiduce Should be Viewed.
It is clear Appeal Attorney did Not Investigate the Record. SEE
Wiggins V.Smith 539 U.S. 510(2003). A Skilled Attorney Should No;
"IF ERROR IS NOT PRESERVED". Then a Motion for New Trial didlh psfcbleg,
i'trj-Ect-.TMi.: in this Case, Not Objecting During Trial About Three Bad
Checks[ Convictions ] Case Law Shows Misdemeanor Convictions, Were
Not Crimes Involving Moral Turpitude.
Even Alleging Counsel was Ineffective for Failure to Object to Preserve
Error of Three Bad Checks. It would have to be Shown that the Trial
Judge would have Committed Error in Overruling Such an Objection.
page 3
See, ExParte White 160.S.W.3d 46,53(Tex.Crim.App.2004). citing Vaughn
V.State 931 S.W.2d 564,566(Tex.Crim.App.1996). In This Case Even If
Trial Counsel would of Objected the ground Raised would Fail Because
Appeal Attorney Read the Cases he Applied Wrong.
Appeal Attorney Blundered in the Appeal Slapping Together a Brief
without Proper Authority,Violates Russean V.State 171 S.W.3d 871,881
(Tex.Crim.App.2005). Due Process Requires that Defendant have Effec
tive Assistance of Counsel on his First Appeal. Powell V.Alabama 287
U.S. 45,53.S.CT. 55,77 L.ED 158 (1932).
Exhibit V^A^, David Martinez wrote He would file Motion for Rehearing
[HE DID NOT]. Appellant was Forced to file Motion Pro-Se.
The One Sole Issue at Appeal was Without Merit. Counsel Does Not have
to Raise all Grounds, However"THERE ARE SOLID GROUNDS" That was in
Error, Counsel should of Raised* If Someone would View the Record,
States Brief 07-14-00353-CR Claims a 38. Alice Monnett Said she seen
a 380.
There was No Test Preformed on the Bullet Retrieved. The state Claims
it was a 38.Cal. the Witness claims it was a 380.Cal. The Officer
Admitts He is No Expert on Ballistics. Prior Inconsistent Statements
was made in Offical Report.
This is Rather Scary "To the Fact" Not Even the Witness is Skilled
to Testify of weapons, She did not say Pistol,She said 380.Another
witness said the weapon was fired in the Air. how and when did the
Car Seat Get Shot ?
Other Troubling Facts, The Main Witness has (4) Four Prohibited
Weapon Charges, That Counsel Never Attacked.
Ripples beleave it or Not; Who Shot the Car? The Defendant Never
Admitted to No Fire arm and There was NO 100% PROOF the Bullet was
fired During this Crime ID Argument.
Why did the Police Not do a [GRS] Test on Defendant?
Why didn't Appeal Attorney, Argue Harm. Wheeler was not Qualified
to Testify as an Expert. Appeal Attorney failed to Allege Harm in
his Brief. (29) Years is Hard to Muster .*(Tx. Rules .App. P. 44. 2(b),"
Because of this Even in this PDR "The Grounds Raised" Appeal Attorney
has made it Truly Difficult to File. For the Failure of Appellant
Being Afforded DUE PROCESS and DUE COURSE OF LAW. This Court Should
Grant Review of the Holding of the Court of Appeals Overruling
Motion for Rehearing.
page 4
QUESTION FOR REVIEW: NUMBER TWO
Was Trial Attorney Ineffective for Not filing Motion to Qualify
Expert and to Conduct GateKeeper Hearing and Failing to File Motion
for Expert for Ballistics Testing. Failing to File Motion to Suppesss
Evidence,Failed to Investigate the Case.
REASON FOR REVIEW: Number Two
"IN LAW, THE RIGHT ANSWER USUALLY DEPENDS ON PUTTING THE RIGHT
QUESTION. Estate of Rogers V.Comm'r 320 U. S.410,413(1943) Frafajrter Jr.)
Appellant would Show Unto this Court that a Number of Witnesses Have
been Identified by the State and Anticipates that at a Least,Two
Witnesses was Rendering Opionions as Experts.
Compelling to Cause the Court of appeal to Exercise Discreation
Tx.R.App.2(b) Where Constitutional Restraints or Interest of Justice
Require Appellate Court to hear New Issues[DUE PROCESS]. SEE:
In Rochelle V.State 791 S.W.2d 121 (Tex.Crim.App.1990). If a Party
Raises a New Ground for the First Time...The Decission of Whether
to consider That New Matter is Left to the Sound Discreation of the
Appellate Court. ID at 124.
All That is Needed to Prevail on a Claim,Trial Counsel was Ineffective
for Failure to file Pre-Trial Motions. Appellant has to Allege Specific
Facts Showing why the Motions were Needed. A Good Case Out of your
District to Support this is; See. ExParte McPherson 32. S.W.3d 860,
861(Tex.Crim.App.2000).
If Trial Attorney would of filed, Motion to Qualify Expert and to
Conduct Gatekeeper Hearing, Would Officer MICHAEL WHEELER Still been
Allowed to Testify to NON-SUPPORTIVE FACTS of the Size of Bullet that
was Siezed or actule time the Shot was Fired.
Normally Police Who work a Case where a Bullet is Found is to Arrest
the Suspect, Then do a [GRS] NONE WAS CONDUCTED.
The Right to the Assistance of Counsel is Granted by the Sixth
and the Fourteenth Amendments to the United States Constitution and
Artical (1) Section (10) of the TEXAS Constitution. This Right to
The Assitance of Counsel has long been Understood, To Include A
page 5
"RIGHT" to the Effective Assistance of Counsel. See.McMann V.Richadson
397 U.S. 759.771.n.14.90 S.CT.1441,1449. 25 L.ED 2d 763(1970). The
Integrity of our Criminal Justice System and the Fairness of the
Adversary Criminal Process is Assured Only if an Accused is Repre
sented by an Effective Attorney See, United States V.Morrison 449
U.S. 361,364.101.S.CT.665,667.66 L.ED.2d 564 (1981).Absent the Eff-
-etive Assistance of Counsel,"A Serious Risk of Injustice Infects
Trial itself. Cuyler V.Sullivan 446 U.S.335,343.100.S.CT.1708,1715
64 L.Ed.2d 333(1980).Thus a Defendant is Constitutionally Entitled
to have Effective Counsel Acting in the Role of an Advocate. See.
Anders V.California 386 U.S.738,743.97 S.CT. 1396,1399.18.L.ED 2d
493(1967).
The Legal Standard the United States Supreme Court in Strickland V.
Waskington 466 U.S.668.104.S.CT. 2052.80.L.Ed 2d 674(1984).Established
the Federal Standard for Determining Whether an Attorney Rendered
Reasonable Effective Assistance of Counsel.
The TEXAS Court of Criminal Appeals in Hernandez V.State 726 S.W.
2d 53,57(tex.Crim.App.1986). Adopted The Strickland Test as the Proper
Test Under State Law to Gauge the Effectiveness of Counsel."Meaningful
Adversaril Testing" Illustration Powell.V. Alabama 287. U.S.45,53
S.CT. 55.77.L.ED. 158(1932). Specific Errors of Counsel Under Mined
the Reliability of The finding of Guilt. United States V.Cronic at
659.n.26.104 S.CT. at 2047.n.26.The Attorney Failed to Challenge the
Prosecuters Case.
Tex.Rule E.702 Provides that If Scientific Technical or other Spec
ialized Knowledge will assist the Trier of Fact to Understand the
Evidence or to Determine a Fact in Issue. A Witness Qualified as an
Expert by Knowledge,Skills,Experience,Training or Education, May
Testify There to in The Form of an Opinion or other Wise. Tex.R.Evid.
702.
It is Clear by Officer Wheelers Own Ommission See RR.V.2 PG 171.U/1-3-
Q. You're Not a Expert in Ballistics are You ?
A. NO SIR.
The Officer was Questioned During Trial,RR V.aPG 158 LN 4-5-6
Q. Officer, did you send that slug to any kind of lab for Analysis?
A. NO I DIDN'T.
Alleging Counsel was Ineffective for failure to Object. Appellant
Must Show, That the Trial Judge would have Committed Error in
page 6
Overruling Such Objection. ExParte White 160 S.W.3d 46,53(tex.Crim.
App.1996).
If Counsel would of Objected to the fact, The Officer is Not Expert
in Ballistics and Objected to the Fact the Officer did not send the
slug to Any kind of Lab. If Objections were made Properly,A Trial
Judge would have Committed Error in Overruling Such Objections.
This Testimony is Very Important Because the Alleged Victim (Witness)
Alice Monnet Said ; She seen a 380.
The Officers Testimony RR V.2 PG 156 LN 6-10 The Court Questions
Officer Wheeler:
A. NOT able to give a Definitive Caliber, No But it is a Small
Caliber Handgun or Small Caliber Round.
Q. Okay, Would that be Consistent with a Round from a 380 ?
A. YES,IT WOULD.
Trial Counsel Failed to Object to Prosecuter Leading the Witness into
the Size of the Bullet, Based on Alice Monnett Saying; She seen a 380.
Prosecuter Pulled Officer Wheeler into Co-Signing a 380. After Clearly
Stating 38. In Reports.
The Threshold Determination or a Trial Court to Make Regaurding the
Odmission of Expert Testimony is Wheather that Testimony will Help
the Trier of Fact Understand the Evidence or Determine a Fact in Issue.
See.Kelly V.State 824 S.W.2d 568(tex.Crim.App.1992).
Before Scientific Evidence May be Admitted under Rule 702 The Proponent
Must Persuade the Trial Court by Clear and Convincing Evidence, That
the Evidence is Reliable and Therefore Relevant.ID at 573.
Scientific Evidence that is Not Based on the Methods and Proce
dures of Science is No More Than a Subjective Belief or Unsupported-i
Speculation. Robinson 923 S.W.2d at 557.
Trial Counsel or Appeal Attorney Failed to Challenge Expert Testimony
that was Admitted by the Trial Court. A Party May Later Complain on
Appeal that the Expert Testimony is LEGALLY INSUFFICENT to Support
the Judgement Because it is Unreliable. See Maritime Overseas Corp
971 S.W.2d at 409. Austin V.Kerr McGee Refining Corp 25. S.W. 3d
280,285(Tex.App.Texarkana 2000). Unreliable Expert Testimony is Not
Evidence.
The state Lead the Officer to say in RR V.2 PG 156
Q. Okay,would that be Consistent with a Round from a 380.
[ The Jury Just Heard Testimony from Alice Monnet, She Seen a 380. ]
page 7
In the States Brief Appellate Number 07-14-00353-CR PG.8 States;
The Front Passenger window was Shattered with Glass inside and a
Spent 38. Bullet was Found in the Driver Headrest. RR 2 i""51-56
170-71 States;[Exhibit 6-18] Due to the Bullet Found in the Seat
Wheeler Believed a Gun Was Involved RRV2-163.
The State Lead Officer Wheeler to Ride along with Alice Monnetts
Story of of a 380 and the State made it's Own Asumption it was a
38.
Inconsistent Statements by Wittness and Prosecuter. See Crutcher V.
State 481 S.W.2d. 113(Tex.Crim.App.1972). Even a Witness,A Few Weeks
before Trial Vasquez Added to Her Statement that after Appellant
Drove off,He Circled Back and Shot the Gun in the Air. RRV2 123,130
With This,Where still at the Point was the Bullet a 380.Cal or a 38.
Cal and When was the Victims Car shot 1
The State or the Officer did not Prove what the Slug Size Was. IN,
Tovar V.State 221 S.W. 3d 185,190-91(Tex.App.Houston 1st Dist 2006
No Pet). A Party who Opens A Door to an Issue Cannot Complain when
the Opposing Party Desires to go into the Details of that Subject.
The Testimony to be Considered Reliable Evidence based on A Scien
tific Theory Must be Valid. (2). The Technique Applying the Theory
Must be Valid (3) The Technique must have been Properly Applied on
the Occasion in Question. Hartman V.State 946 S.W.2d.60(tex.Crim.
App.1997). Citing Kelly 824 S.W.2d at 573. See Also, Daubert V.
Merrell Dow pharmaceuticals,Inc. 509 U.S. 579,594.113 S.CT. 2786.
125 L.ED.2d 469 (1993).
Under TEXAS Rules of Evidence 104 (a)&(c) and Rule 702. All Three
Criteria Must be Proven, to the Trial Court Outside the Presence of
the Jury, Before The Evidence May be Admitted. Kelly 824 S.W.2d at
573 also See, Daubert V.Merrell Dow Pharmaceuticals,Inc 509. U.S.
579(1993) and Kumbo Tire Co V. Carmichael 526 U.S. 137(1999).
Attorney is Ineffective for Not Filing Motion to qualify Testimony
as Expert, and Gatekeeper Hearing as of There Qualifications and
Experience.
There is Reasonable Probility Sufficient to Undermine Confidence in
the Outcome of the Proceedings that, But for Counsels Deficiency,The
Result of the Proceeding would have been Different. Strickland V.
Washington 466 U.S.at 687.
page 8
Trial Attorney is Ineffective for Not Filing Motion for Independent
Examination of the Bullet Found in the Alleged Victims Car, PreTrial
Motion. ExParte McPherson 32 S.W. 3d 860,861 (Tex.Crim.App.2000).
As Provided by Mcbride V.State 838 S.W.2d 248. The Trial Court
would have Allowed Discovery of Evidence that is Material to the
Defence of the Accused and a Defendant "Has a Right to Inspect The
Evidence Indispensable to the States Case Because that Evidence is
Necessarily material to the Defence of the Accused, McBride at 251.
Trial Counsel Failed to Request Independent Examination by An Expert,
Under TEXAS RULES of EVIDENCE 401. The Bullet is Relevant.Testimony
was used Based on a Convicted Felons word of 380. Duty to Retain
Service of Forensic Expert [IS A RIGHT].
c°mpare Sims V.Livesay 970 F.2d 1575 (Ca.1992). Forensic Expert to
Examine a Quilt It's Bullet Holes and it's Powder Burns and the Fatal
Bullet for Traces of Fabric from the Quilt.
In the Case at Hand a Forensic Expert Could Test How Long the Slug was
in the Headrest, What size Gun it was and Rather it was Close Range
firing. There is testimony of shattered Glass as well and Material
would be on the Slug from the Car and Glass.
How come the Defendants Cloaths were Not Tested for Nitrate or GRS
Test Conducted ?
Appellants Counsel was Ineffective in failing to Conduct a Reasonable
Pre-Trial Investigation. See Wiggins V.Smith 539 U.S. 510(2003).
Alice Monnet on the Record has (4) Prohibited Weapon Charges, Counsel
Failed to Investigate the Weapons Siezed off This Wittness,She was
going thru a Split Up with her Husband. Appellant is Innocent of
Shooting the Car. Adequate Testing would have Provided Facts,Further
Investigation would have[Led to a Fact ] That the Bullet in the Car
Came from one of the Weapons in the Police Property Room, Belonging
to the Alleged Victim. Attorney Failed to Investigate any Reports
or Insurance Checks to see If the Car was Damaged before this day
of the Incident. In RR V.3 PG 34 LN lr-2. [0MMISI0N BY THE Attorney]
I Did Not Investigate from the Beginning.. Anything Thru out the
Entire Case.
Attorney Failed to file Suppression Motions of Evidence Siezed in
Violation of Due Process Rights if Counsel would Have Suppressed
Evedence Until Test's Were Conducted as to Suppress Evidence for
page 9
Chain of Custody Violations, Proceedings would have been Different.
The Testimony had a Substantial Injurious Effect on The Jury's Verdict.
Appellants Right under U.S.Constitution,Amendment,IIV and TEXAS,
const.Art I.§ 19 for Failure of Appellant being Afforded [DUE PROCESS]
and [DUE COURSE OF LAW] This Court Should Grant Review of NEW ISSUES
RAISED.
QUESTION FOR REVIEW :Number Three
REAS.ON FOR REVIEW.
See Evitts V. Lucey 469 U.S. 387.105.S.CT.830.83 L.ED.2d 821
(1985) [DUE PROCESS] Requires that the Defendant have Effective
Assistance of Counsel on His First Appeal.
A First Appeal as of Right, Is Not Adjudicated in accord with Due
Process of Law, If the Appellant does Not have the Effective Assis-
-tance of An Attorney,This Result is Hardly Novel.
In Short, the Promise of Dougles [PG.837] That a Criminal Defendant
has a Right to Counsel on Appeal, Like the Promise of Gideon that
A Criminal Defendant has a Right to Counsel at Trial. Would be a
Futile Gesture Unless it Comprehended The right to the Effective
Assistance of Counsel.
Attorney Filed a No Merit Brief, Constitutes Denial of Counsel, See
Lofton V.Whitley 905.F.2d.885.n.PG.887. An Accused is Constitutionally
Entitled to Effective Assistance of Counsel on Appeal Because His
Attorney filed a Brief Which did Not Assert Any Arguable Error and
Therefore Prejudice Should be Presumed.
The Burden of Proving Ineffective Assistance of Counsel Rests on the
Convicted Defendant by a Preponderance of the Evidence. Haynes V.state
790 S.W. 2d 824,827 (Tex.Crim.App.1990). also See United states V.
Cronic Supra at 658.104.S.CT.at 2046(Constitutional Violation).
Appeal Attorney Raised One Ground, Claiming Deprivation of Due Process,
When it Denied the Defense Petition to Allow the Impeachment of Two
Witnesses.
Appeal Attorney did Investigate the Record. Appellant Failed to Pre
serve Error with Respect to the Four Judgements Mentioned in his
Amended Motion for New Trial Besides No Objection During Trial About
the Three (3) Bad Checks. It Is Clear, Trial Attorney Chose a Differ
ent Route Instead The Defense Questioned The Victim About" NEWLY
page 10
Discovered" Misdemeanor Convictions for "Possession of Prohibited
Weapon and substance.
However the Misdemenor Theft was Agreed to be Admissible but Appellant
Failed to Cross Examine or Admitt at Trial.
Raising Ineffective Assistance Rule 33.1 (a) of the TEXAS.Rules of
Appellate Procedure Requires that a Complaint be Presented to The
Trial Court" by a Timly Request, Objection or Motion" as a Prere
quisite to raising the Complaint on Direct Appeal.
This is Not to Say that an Ineffective Assistance Claim May Not be
Raised in the Trial Court or on Direct appeal, It Can. For Example
Such a Claim may be Raised in a Motion for New Trial. Reyes V.State
849 S.W.2d 812.815 (Tex.Crim.App.1993).
Appeal Attorney should of Raised in Motion for New Trial Ineffective
of trial Counsel for a Number of Error's, To Preserve Review Failing
to View the record. Allowed A brief to be Prepaired that Simply Put;
HAD NO MERIT, Not Properly Presented.
[Error's That should of been Raised in First Appeal are];
(1. Harm, Appellant Failed to Allege Harm in his Brief, Tx.Rules.App.
P.44.2 (b) The Error had a Substantial Injurious Effect on Jurys
Verdict. See Morales V.State 32 S.W.3d 862,867(Tex.Crim.App.2000).
A Skilled Attorney will Comb the Record and He did Not. It is
Obvious There was a Conflict of a Bullet 380. or 38. Is a pretty
serious Error and A Witness who states; A Gun was Fired in the
Air.
Compair States Brief PG 28 The Admission of Incriminating Evidence;
The 38. Bullet.
Also Compare; RR V.QPG 158 LN 4-5-6 [Testimony of Officer Wheeler]
Q. Officer, Did you Send that Slug to any kind of Lab for Analysis ?
A. No Sir.
A Witness ALICE MONNETT Said; She seen a 380.
The Court Questions, Officer Wheeler, See RR V.2 PG 156 LN 6-10
A. Not able to give a Definite Caliber. No But it is Small Caliber
Handgun...or Small Caliber Round.
Question where the State Leads the Witness:
Q. Okay, Would that be Consistent with a Round [From a 380.] ?
A. Yes It Would.
page 11
Please Compair.
Officer Testifies That it is Consistent to a 380. Because the state
Just Co-Signed the Witnesses Testimony. Alice Monnett Said She Seen
a 380.
In The states Argument Brief Appellate Number 07-14-00353-CR PG.8
The First Passenger window was Shattered with Glass inside and a
SPENT 38. Bullet was found in the Driver Headrest. RR.V.2 151-56
170-71.
Page.28 The Admission of Incriminating Testimony; The 38.Bullet.
This Raises a Conflict.
The Purpose of Petition for Discretionary Review, Is to Present
Cogent Concise Reasons why this Court should Exercise Discretionary
Jurisdiction Rule 302 (c) In Rochelle V.State 791 S.W.2d.121 (Tex.
Crim.App.1990). If a Party Raises A New Ground for the First Time
The Decission of Whether to Consider That New Matter is Left to the
Sound Discretion of The Appellate Court. ID at 124.
Appellent Attorney Failed to Investigate the Case or Secure a Motion
Pursuant to Chapter 38 Requesting Forensic Analysis and Testing Under
Tre 401 Relevant Evidence.
Scientific Testing Todays time could Show, How Long this Slug was in
the Headrest and what Type of Gun it was Fired from.
(2. Appeal Attorney Failed to Offer Further Proof of Photo's. The trial
Attorney, Legitimately Tried to Present the Facts that would Prove
Testimony Provided is UnTruthfull Being able to see from a Certain
Location. The Judge would Not allow Photos to Come into Evidence
was Appeal Attorneys Ineffective for Failing to Raise A Claim Based
on Denial of the Right to Present a Defence. See Chambers V. Miss-
-issippi 410 U.S. 284(1973). A Competent Appellate Lawyer will Re-
-serch and Present the Facts.
At Punishment RR V.3 PG 15. The State Objected to any further Attempts
to Introduce Photos, Purporting to Any Further Attempts to Introduce
Photo's to be Mrs.Vasquez Home. If Appeal Attorney would of Hired a
Investigator, It would of Proved the Witness Could Not See From the
Angle they Testified too.
(3. Appeal Attorney Failed to File as in Vasquez, The Trial Counsel Never
Requested a Specific Instruction based on a Valid Defense Raised by
the Evidence. Vasquesz 830 S.W.2d at 951.
Page 12
The Court Held, [U]nder the Facts of this case,It would have been
ERROR for the Trial Court to Refuse Such an Instruction and One Been
Requested, Counsels Performance in Not Seeking the Instruction,Was
Clearly Deficient. ID Point Made.
Appeal Attorney had Plenty of Grounds to Raise on Appeal Instead of
ONE MERITLESS GROUND. In Stone V.State 17 S.W.3d 348 (Tex.App.Corpus
Christi 2001). The Court of Appeals REVERSED a Conviction Based on
Ineffective for Elicting Testimony that was Clearly Inadmissible,
Stone 17.S.W.3d at 351.
The Bullet Found was Never tested, NO ONE, 100% Knows how long the
Bullet was in the Car Headrest.and it is a Fact, The Witness Claims;
a 380. The State Leads Officer that its a 380. but in the States own
Argument, Its a 38.
(4. Appeal Attorney Should of Raised Ground, The Officer was Not Qualified
to Testify as Expert on Ballistics and to Raise the Fact Trial Counsel
Failed to Object.
(5. Was Appeal Attorney Ineffective for Not Raising The United States
Supreme Court who Set the Standard for Legally Sufficiency of the
Evidence. In Jackson V.Virgina 443 U.S 307.99.S.CTi 2781.61 L.ED.2d 560
(1979) See Also Dewberry V.State 4.S.W.3d 735,740 (Tex.Crim.App.1999). Ross V.
State 133 S.W.3d 618,620(Tex.Crim.App.2004).
The Inquiry on Review of the Legal Sufficiency of the Evidence to
Support a Criminal Conviction, Is Whether After Viewing the Evidence
in a Light Most Favorable to the Verdict. Any Rational Trier of Fact
could have found the Essential Elements of the Crime Beyond a Reason
able Doubt.
Would a Jury Convict when a Witness Alleges a 380. and the State
Alleges a 38. ? If the Photos Proving a Witness could NOT SEE From
that Distance or Mistaking a Pointing Finger for a Gun ? If the Bullet
hade been tested and the Stage of "Corrosion" Damage Caused by Corrosion
as listed in the Concise Oxford English Dictionary. IE. CORROSION n.
The Process of Corroding or being Corroded.
Would tell The Truth of how long this Bullet was Lodged in the Head
Rest of the Car.
Being the state allowed a Witness to Testify to a 380. It appears from
Alice Monnett Own Criminal History, She is Claiming she is Knowledge-!,
-able of Weapons.
page 13
It is safe to say to this Honorable Court, If The FBI or a Expert
was to test this Bullet and the Corrosion is so Advanced,The Truth
of the case would be, Void. Proving the Appellant did Not Shoot the
Cars Headrest.
Appellant from the Begening Claimed Innocence and he did Not Own or
Fire No Weapon into this Car's Headrest.
Useing Schlups Threshold Showing Innocence would Justify a Review
of the Merits of the Constitutional Claim. Trial and Appeal Attorney
have Breached there Contract when they was Retained to Investigate
and Prepair a Defence and a Brief with Merit. Both Attorneys are in
Straight Violation of the Strickland test and Wiggins V.Smith 539
U.S. 522. L.ED.2d 471.123. S.CT. 2527(2003). If Appeal or Trial
Attorneys had of done there Dutys, There is a Reasonable Probability
that at Least one Juror would have Struck a Different Balance. C.F
Borchardt V.State 367.MP.91.139,140.786 A.2d.631.660(2001).
The Evidence Used to Convict was Circumstantial Evidence Violating
the Supreme Court Standard Under Jackson V.Virgina 443. U.S.307. 99
S.CT.2781.61 L.ED.2d.560(1979) Also Dewberry V.State 4. S.W.3d.735
at 740(Tex.Crim.App.1999). REASONABLE DOUBT.
The Next Issue is a Textphone Listed in Punishment Verdict;RR V.3
PG. 32 LN.13-17. And you Know what the Biggest lie Alice Monnett
Told. After she Finally Admitted a Year Later that she was High
at the Time ? She Said; I Got this TEXT it says 469-1111 it Does'nt
Even Have Michael Kennedys Name on it.
In RR V.3 PG.40 LN.4-8
The Next day she gets a Text from Michael Saying; Well your Cars
Shot up and your tires are Slashed. Come get this Shit or Send you
Old Man to get it. Sounds like a Jilted Lover Tone. Someone who is
Upset with her Because Shes Going back to her old Man.
The Alleged Text Message has to be Regestered to Someone. The states
Witness Claimed she has Received Calls from the 469-1111 Number
Before.
Trial and Appeal Attorney are Ineffective for Not Subpoenaing the
phone records. Appeal Attorney failed to file Innefective of Trial
Counsel for Trial Counsel Not Objecting to Text Message. IN Black
V.State 358 S.W.3d 823,830(Tex.App.Fort Worth. 2012 pet Ref'd). The
Text in Appellants Case was Admitted without investigation or Objection
to the Truth of the Matter.
page 14
Counsels Failed to Investigate the Owner of the Phone Records or
Text Message. SeeMooney V.State 817. S.W.2d.693,697(Tex.Crim.App.
1991).
Thus The Harm in Appeal Attorneys Brief, IS Way Out of Line.
The Court of Appeals Failure to Recognize this Constitutional In
Firmity Merits Review by this Court.
QUESTION FOR REVIEW: NUMBER FOUR
Was the Seventh Court of Appeals Correct in Denying Both Due
Process and Equal Protection of Law to Impeachment of Two Witnesses
with Evidence of Prior Crimes of Moral Turpitude as Permitted by
rule 609(a) Tx.R.of Evidence. Attempting to Preserve Error in Amended
Motion for New Trial.
Reason for Review
Did the Court of Appeals for the SeWenth District Abuse it's
Discretion Based on the Brief Appellant Attorney Filed.
Did the Motion Preserve Error to Impeach the (2) Witnesses. In
Zillender V.State 557. S.W.2d 515,517 (Tex.Crim.App.1977). The Motion
for New Trial, Kind of Preserved Error.
Was Appeal Attorney Inneffective, Applying this Brief. Shoult'nt a
Skilled Attorney Know that a Motion for New Trial Does Not Satisfy
the Offer of Proof Requirement 103(a)(2) Tx.R.of Evidence 103(c).
Is Appeal Attorney Ineffective for Not Explaining that Because he
filed One Ground, That it Makes it Difficult to Raise New Grounds
in .PDR Unless this Honorable Court Allows. In Rochelle V.State 791
S.W.2d.121(Tex.Crim./App.1990). To take Effect, Matter is Left up
to the Sound Discreation of the Appellate Court to Rule on Grounds
1 Thru 5.ID atl24.
Appellant Request Oral Argument Because of Glenda Pemberton Hired
the Attorney who did not Function as an Attorney, Should of*Requested3fl,
this case is Remand&d for Grounds Requested in this PDR.
QUESTION FOR REVIEW:NUMBER FIVE
Was Court of Criminal Appeals in Error Denying Motion to Apponit-
Counsel.
page 15
Was the Court of Appeals Seventh District Amarillo,Tx In Error
Dismissing Motion for Forensic Analysis and Testing and Motion
For appointment of Counsel.
Reason for Review
On September/24/2015 Appellant Filed Motin Pursuant to Chapter 38
Requesting Forensic Analysis and Testing, Useing Texas Rules of
Evidence 401 Relevant Evidence. Code of Criminal Procedure Sec.(a)
(4). Forensic Analysis Means Ballistic or other Expert Examination
or the Test Preformed on Physical Evidence. The Court of Appeals
Simply Denied Motion for Appointment of Counsel Without Viewing the
Merits to The Motion. A Showing of a Conflict Exzist, is all that
needs to be Shown to Seek Relief.
On September/24/2015. A Motion for Forensic Analysis and Testing
and Motion for Appointment of Counsel was Placed in the Legal Mail
box on 9/24/2015. Deemed Filed According to [TEXAS Criminal Appeals]
In Campbell V.State 320 S.W.3d. 338,344(Tex.Crim.App.2010). fTlhe
Pleadings of Pro-Se Inmates Shall be Deemed Filed at the time they
are Delivered to Prison Authorities for Forwarding to the Court
Clerk.
The Courts Opinion and Judgement were Issued in July/16/2015. In
Trial Cause Number 67.789-E and Case Number 07-14-00353-CR.
The Seventh Court of Appeals Claims It's Plenary Power
Over it's Judgement Expired on September/25/2015. The Motion for
testing was in the Legal Mail BoV on September/24/2015.See EXHIBIT
JHJL_- of the Actual Motion States Respectfully Submitted on this
24th Day of September,2015. PG.2
On PG.5 States in Affidavit of Indigency, Excuted on this 24th Day
of September,2015.
Claiming If the Motions was Timly Placed in the Prisons Mail System
They are Denied. Then going Further to State: If your Motion were
placed in the Prison Mail System After the Courts Plenary Power
Expired, They are Dismissed for want of Jurisdiction. Tx.R.App.19.1
(b). Does Not Apply, View EXHIBITOjWv^USeptember/24/2015. Timely
Filed According to Campbell 320.S.W.3d. 338,344.
page 16
The Court of Appeals and Seventh court of Appeals Errored in Denying
the Motion, Pursuant to Chapter 38 and Denying Counsel.
(1. Alice Monnett Claims she Seen a 380. RR.V.3 PG.42 LN. 22-23 Alice
Said that she Knew The Defendant to own a 380. Pistol,That she saw
it the Night Before.
(2. The state Claims Victim had seen appellants 38. the Night of the
Assault. PG.9 in States Brief.
(3. In the officers Testimony RR.V.2 PG.156 LN 6-10
The Court Questions Officer Wheeler.
A. Not Able to Give A Definite Caliber, No but it is a Small Caliber
Handgun, or Small Caliber Round.
Q. Okay,Would that be Consistant with a Round from a 380. ?
A. YES IT WOULD.
PAGE 8. [The State Again Found a Spent 38. Bullet That was found in
the Headrest];
The State Never Proved It's Case. Attorney Failed to Object to the
Outrageous Government Conduct. Prosecuter Vouching for Witness.
Testimony she seen a 380. See U.S. V.Bass 712.F.Supp.2d.931(D.Neb.
2010). In this Case Counsel for the Government, Put her Credibility
at Issue by Vouching for the Government witness. She First Stated;
That the Witness Testified Before this Trial and they Know what the
Truth is. COUNSEL HAD NO OBJECTION. The Prosecuter Wrongfully put
her Personal Reputation Behind the Testimony of it's witness. Littrell
439. F.3d. at 882. SEE Also United States V.Eley 723.F.2d.1522,1526.
The Prosecuter Road with Alice Monnetts Statement of a 380. then
pulled Officer Wheeler into Leading the Jury to Believe the Bullet
Found was a 380. Where the Officer Just testified [Not Able to Give
a definite Caliber.] Beings Alice Monnett Said She Seen a 380. during
Exzamination of Officer Wheeler. Had the Prosecuter Asked; Okay,Would
that be Consistent with a round from a 38. Not a 380.
The Jury would of Found Appellant NOT GUILTY. Instead Based on a bad
Trial Attorney, He Allowed the Government to Get away with Error's
so serious they Caused Harm to Defendant. .
the Officer Admitts he did No Kind of Test and that he is No Expert
in Ballistics.
If the Court Finds that the Motion Pursuant to Chapter 38 Requesting
Forensic Analysis and Testing Should be Preformed. The Complete
Motion is Attached for View. McBride V.State 838 S.W.2d.248 at 251.
page 17
Once there is a Miscarrage of Justice and Testimony that is So Obvi
ously Different. The Fact Remains In Todays Time, A Expert Could
Tell us All, How long the Bullet was in that Headrest to set a
INNOCENT MAN FREE, Who fired No Weapon.
Trial and Appeal Counsel, Did Not Even Check, No Insurance Companys
of report of Damage to this cars Past. NO INVESTIGATION.
Wherefore All Considered Appellant Prays Michael Ray Kennedy,Prays'
That This Honorable Court GRANT his Petition for Discretionary Review.
Respectfully Submitted,
Michael Ray^Kennedy Pro-Se
Stevenson Unit
1525 FM 766
Cuero,Texas 77954
CERTIFICATE OF SERVICE
I Hereby Certify a True Copy of petition for Disretionary
Review has Been Certified, Mailed to Clerk Abel Costa,
Court of Criminal Appeals of TEXAS. P.O.Box 12308 Capitol
Station, Austin,Texas 78711.
On This The ^5 ^ Day of November,2015.
.yflkJtouQ
page 18
APPENDEX (1)
LETTER FROM DAVID MARTINEZ EX.(A)
AFFIDAVIT OF GLENDA PEMBERTON EX.(B)
REPORTER RECORDS V.2-3, EX,• (c)
MOTION FOR FORENSIC TESTING, EX..(D)
MOTION FOR APPOINTMENT OF, EX.•(E)
COUNSEL.
MOTION FOR REHEARING PRO-SE EX..(F)
PAGES OF STATES BRIEF, EX.•(G)
APPENDEX(2)
MEMORANDIUM AND OPINION,
COURT OF APPEALS OVERRULEING,
MOTION FOR REHEARING,AND
MOTION FOR RETESTING,SEVENTH
DISTRICT.
PAGE(19)
E*fcfc7T_lA\
THE LAW OFFICES OF DAVLDMARTINEZ
1663 Broadway, Lubbock, Texas 79401
Phone (806) 744-16v2 / Fax (S06) 744-:i660
Memo
AVs'c-W^\ \16 A. It was parked at that house;* that blue house.
17 I don't know the address.
18 Q. Well, Ms. Vasquez, you do not live on the
19 corner of 13th Street. You live at 4302 Southeast 13th
20 Street.
21 A. Yes.
22 Q. And your driveway -- you cannot see from your
23 driveway to 1205 Bolton, can you?
24 A. You can see to Bolton Street; yes, sir, you
25 can.
^c 130
1 A. I didn't see it up-close, up-front.
2 Q. And where did this person supposedly shoot the
3 pistol?
4 A. After he drove off.
5 Q. In what direction?
6 A. To my left -- or -- I guess to the south -- or
7 going towards the -- 1-40.
8 Q. Going towards 1-40?
9 A. Yes.
10 Q. And that would be going south?
11 A. South.
12 Q. Ma'am, is there a school down 13th Street?
13 A. Humphrey Highland is down at the other end of
14 13th, yes.
15 Q. About two blocks away?
16 A. Yes.
17 Q. There was a lot of traffic; people going to
18 pick up their children?
19 A. I don't remember.
20 Q. You don't remember that?
21 MR. MARTINEZ: I pass the witness.
22 MR. HORN: Brief redirect, Your Honor?
23 THE COURT: Yes.
24 REDIRECT EXAMINATION
25 BY MR. HORN:
ld>n 156
1 Q. Okay. Are bullets of different calibers
2 generally recognizable?
3 A. Yes.
4 Q. Okay. And from your training and experience,
5 are you able to say what size bullet that is?
6 A. Not able to give a definitive caliber, no, but
7 it is a small caliber handgun -- or small caliber round.
8 Q. Okay. Would that be consistent with a round
9 from a .380?
10 A. Yes, it would.
11 Q. All right. Did you take a statement from the
12 victim, Ms. Monnet?
13 A. Yes, I did.
14 Q. And while you were doing this, did Officer
15 Landrum interview the other 911 caller?
16 A. I believe he did, yes, sir.
17 Q. And did that conclude your involvement with the
18 case?
19 A. Once I was done with the witness and Landrum
20 was done with the other lady, I believe, yes, sir, that
21 was fi ni shed .
22 Q. Actually, I forgot to ask you. Did the
23 Defendant's mother come to the scene of the offense
24 while you were conducting an investigation?
25 A. She -- she showed up to try to get some -- some
£*•"•z
1 MR. HORN: We'll pass the witness.
2 CROSS-EXAMINATION
3 BY MR. MARTINEZ:
4 Q. Officer, did you send that slug to any kind of
5 lab for analysis?
6 A. No, I didn't.
7 Q. So what's the significance of the slug in the
8 seat; when did that happen?
9 A. It's -- Ms. Monnet told me that it -- her
10 window was damaged from the subject. And based on the
11 text message that she had received, I figured -- I
12 determined it to be a part of the investigation, a part
13 of the case.
14 Q. Well, did you check out the phone number?
15 A. No, si r, I didn't.
16 Q. Did you get a warrant to find out whose phone
17 number that was?
18 A. No, I didn't.
19 Q. Did you know about Ms. Monnet 's prior criminal
20 history?
21 A. No.
22 Q. Did you know about her criminal history
23 afterwards?
24 A. No.
25 MR. MARTINEZ: Would you put State's
2 A. I was looking for Mr. Kennedy.
3 Q. I beg your pardon?
4 A. I was looking for Mr. Kennedy.
5 Q. Well, you were looking for a gun, too, weren't
6 you?
7 A. No, I was looking for the subject.
8 Q. Well, you didn't believe there had been a gun
9 involved either, did you?
10 A. I'm sorry?
11 Q. You didn't believe there had been a gun
12 involved either, did you?
13 A. I believed that there had been a gun involved
14 due to the round that I found in the seat.
15 Q. And the -- did you ever ask the mother for
16 details, whether she had seen Michael and Ms. Monnet
17 together that day?
J8 A. No, I did not.
19 Q. Why not?
20 A. My main priority was trying to find
21 Mr. Kennedy. He was not at the house. We went back to
22 the original location to continue our investigation with
23 the victim.
24 Q. Do you remember anything about that pickup
25 having tinted windows?
170
1 A. No; it's nowhere to start. We had no
2 information to go on, on her.
3 Q. So Ms. Monnet didn't know who it was.
4 Correct?
5 A. Ri ght; yes, sir.
6 Q. And the Defendant's mom didn't volunteer who it
7 supposedly was?
8 A. Correct.
9 Q. Okay. Now, you told Defense that you have no
10 idea when the damage to the vehicle happened. Does that
11 mean it's equally likely it could have happened the
12 night before?
13 A. It could have happened any time, yes, sir. I
14 wasn't there.
15 Q. Okay. And -- now, you said that a .380 is a
16 small caliber pistol. Right?
17 A. Yes.
18 Q. Okay. Just to clear up -- are you saying that
19 from a distance, like, not standing next to it, but
20 assuming that it's down the street, could a .380 shot
21 never sound like a loud door slamming?
22 A. From a good distance away, it could sound
23 similar to a door.
24 Q. Okay. And looking at this picture again, just
25 to -- now, Defense asked you if you would expect there
171
1 to be glass outside. And, of course, you're not an
2 expert in ballistics, are you?
3 A. No, sir.
4 Q. Okay. But just from your training and
5 experience in investigation, is the glass being inside
6 the vehicle consistent with someone shooting through
7 that window into the car?
8 A. The glass inside the vehicle is a good
9 indication that the damage was done from the outside of
10 the car, inward.
11 Q- Okay. And just from your assessment of this
12 scene, is it your conclusion that the bullet came from
13 this window and not the front of the car?
14 A. Yes, it came -- my belief, it came from the
15 passenger's side front window.
16 Q. Okay.
17 MR. HORN: We'll pass the witness.
18 THE COURT: All right. Anything further,
19 Counsel?
20 You may -- oh.
21 MR. MARTINEZ: Excuse me.
22
23 RECROSS-EXAMINATION
24 BY MR. MARTINEZ
25 Q. You didn't -- you didn't -- I mean, as far as
APPPENDEX
REPORTER RECORDS VOLUME THREE. EX.(C)
PAGES:15,
32
34
40
42
15
1 Your Honor?
2 THE COURT: You may.
3 VOIR DIRE EXAMINATION
4 BY MR. HORN:
5 Q. Once again, Ms. Pemberton, you just testified
6 that you don't know what (sic) Sally Vasquez' house is
7 or looks like, except on what you've been told.
8 Correct?
9 A. No. I have driven by that house; I know what
10 that house looks like.
11 Q. Do you know where she lives if you don't know
12 her by any means other than what you've been told?
13 A. No.
14 MR. HORN: Once again, we object on lack of -t?
o.
personal knowledge, Your Honor. We would also object to
SEVENt,^°lSVclERKEAUON
VIVIAN lw /-|0
APPEAL FROM THE 108th DISTRICT COURT.
Qiij£0[$iJbJ POTTER COUNTY, TEXAS
" TRIAL COURT N0.67,789-E
HONORABLE DOUGLES WOODBURN,PRESIDING.
"MOTION FOR REHEARING" FROM
MEMORAL7.UUM APPEALS COURT:
MEMORANDUM OPINION JULY 16,2015
T TO THE HONORABLE APPEALS COURT:
NOW, COMES MICHAEL RAY KENNEDY APPEARING PRO-SE, FILES THIS
MOTION FOR REHEARING:WITHIN 15 days OF THE DATE APPELLANT '
RECEIVED fSS EEEDnflHDBB SKCDTOI? 7nMMFxSK?.0WQQ WAIT ROOM
RECEIVED THE MEMORANDUM OPINION FROM THE TDCJ MAIL ROOM*
FOR GOOD CAUSE SHOWING THE FOLLOWING:
"REQUEST ORAL ARGUMENT"
CERTIFICATE OF SERVICE.
THIS MOTION FOR REHEARING WAS PLACED IN THE LEGAL MAIL
BOX ON - -2015, SEE CAMBEL V. STATE 320 S.W.3d 338,
,344(TEX.CRIM.APP.2010) PRO-SE deemed filed at time delivered
to prision authorities.
RESPECTFULLY.
TO THE HONORABLE JUDGE OF SAID COURT :
UNDER TEXAS RULES OF APPELLATE PROCEDURE TRAP 1. SCOPE OF RULES:
LOCAL RULES OF APPEALS1.2(c) Parts noncompliance.A court must not dismis
an appeal for noncompliance with a local rule witout giving noncomplying
party notice and a reasonable opportunity to cure the noncompliance.
[APPELLANT ASK THIS COURT TO BE ALLOWED TO CORRECT ANY ERROR IN
THIS MOTION THAT MAY ARISE.
THANK YOU.
- POINT OF ERROR NUMBER ONE.
ATTORNEY DONALD F. SCHOFIELD ATTORNEY FOR APPELLANT FILED A GR,
OUNDLESS BRIEF SEE TRAP RULE,52.111(a) fileing a petition that
is clearly groundless.
HOHONORABLE JAMES T. CAMBELL JUSTICE IS EXZACTLE RIGHT OF THE
SOLE ISSUE OF APPEAL.PREPAIRED BY MR.SCHOFIELD THE IMPEACHMENT EVIDENCE
HE SOUGHT TO INTRODUCE IT WAS INSUFFICIENT TO MEET THE OFFER OF PROOF
requirement of rule evidence 103 (3)(2) nothing is preseved for the appe,
als court to review Tex. R. APP. P. 33.1. also see the dead bang
winner on ineffective appellate counsel see.BOND V. US 1 F.3d 631.(Ca 7,
1993).
Failure of appeallant counsel to raise the ineffectiveness issue on dire,
ct appeal may be-that, appellate counsel were themselves ineffective.
SEE.VELARDE V. UNITED STATES 972 F.2d 826,827 (7th cir 1992)
for instance appellate counsel maybe "constitutionally" deficient in,
[omitting a dead -bang winner even while,Zealously pressing,
other strong (but Unsuccesfull claims).
SEE•PAGE V.[P635] UNITED STATES V. 884 F.2d 800, 302,(7th cir 1989)
TrSHAT DEAD BANG WINNER "COULD BE THE ARGUNMENT THAT TRIAL COUNSEL MADE
errors so serious that his representation fell out side the wide range
of professionally competent, assistance.
STRICKLAND,104 S.CT.at 2066,466U.S 690,Ineffectiveness compounded by
ineffectiveness in this way would leave motion as the only viable means
for a defendant to s£ek relief from the errors of his trial lawyer.
Attorney filed no/merit brief constitutes denial of counsel,
SEE LOFTION V. WHITLEY,905 F. 2d 885(CA 5 1990)p.887 an accused is const,
itutionally entitled to effective assistance of counsel on direct appeal
asj^ rigSEE.EViTTS V. LUCEY 469, US 387 105 S.CT 830,83L.ED 2d 821(1985)
Clofoji contends that he was constructively denied assistance of counsel ,-
"^on appeal because his atttorney filed a brief which did not assert any
arguable error and therefiore prejudce should be presumed
• failure of trial attorney to impeach witness held to support "IAC*
5 SEErus. ex rel mc Call V. o grady 908 F.170(ca 171990)
-'defense counsel did not represent i;lie defendant to the satisfaction of
the sixth amendmant when counsel fails to pursue an impeaching,
Cross-Examination or present additional evidence that would in all
reasonable probability cast a reasonable doubt on the testimony of the
Government main identification witness."Mc 714 F. Supp at 379.
not chooseing to impeach vasquez and failing to be broached at trial.
It is apparent the convictions of vasquez and monnett carried little or
additional impeachment weight TEX.R. EVID 609(a).
The one sole issue at appeal was without merrit.
And shows appeal attorney did not investigate the facts or law to the
case a skilled appeal attorney should;- of known the Law" Motion in limine
Whether granted or denied preserves nothing for appellate review.
SEE.Griggs V. State 213 S.W.3d 923,926 n.l(Tx.Crim App2007)
Facts that appeal attorney has barred for relief,
[A] Iff issue could have been raised on direct appeal,relief will not
cv: be granted on a habeas application,
[exparte Cruzata 220.S.W.3d 518(Tex.Crim App 2007]
APPEAL ATTORNEY SHOULD OF RAISED INEFFECTIVE ASSISATNCE IN THE MOTION
for new trial SEE REYES V. STATE 849 S.W.2d 812,815 (TX CRIM APP 1993)
trial attorney should of impeached the witnesseven though it <£5uld of
[EVEN THOUGH IT WOULD OF HAD KNOW DIFFERENT OUTCOME THAT IS UP/TPjTHE
APPEALS COURT TO DECIDE ATTORNEY DID NOT KNOW HOW THE APPEAL COURT WOULD
RULE SEEU.S. EX REL.McCall V. 0"Grady 908 F.2d 170 (CA 7 1990)
Appellant ask this HONORABLE COURT TO REVERSE THE APPEAL BRIEF APPEAL
ATTORNEY FILED AND ALLOW APPEALLANT TO FILE PR0_SE BRIEF.TO ADDRESS THE
DUE-Process Errors and the Insufficient Evidence and Legally Insufficient
evidence.
SEE.MYERS V. JOHNSON 76 F.3d 1330(CA 5 1996)right to submitt pro-se appe,
llati brief SEE.Mc kaskle 465 US.at 178 104 S.CT at 951.Appellant wrote,
appeal attorney asking him to allow him to amend the brief he filed beca
use it had no merit to it there was mcxgesponce from the attorney.
It is a right to have effective appellant counsel not just mere
appointment of an attorney.the case that controls this is found in,
SEE.EVITTS V. LUCEY 469 US.392.105 S.CT 830 83 L.ED 2d 821(1985)
It is shown by this respectfully.court appeallant attorney could not
had read the record there was on one sole ground raised appeallant ask
this court to reverse the appeal brief filed to be allowed to file i>r§r-.
^\j5) brief on grounds that was objected to and some that-wasent.'both attorenys
were ineffective.
REQUEST EVIDENTARY HEARING
APPELLANT COUNSEL WAS INNEFFECTIVE SEE.SMITH V. ROBBINS, 528 U.S. 259(2000)
Note:The reporter records are not attached or exhibits because TDCJ
does not provide access to a copy machine.IN the states responce
they mention the RR exzist..
PONIT OF ERROR NUMBER TWO,
[DUTY TO INVESTIGATE] •- INVESTIGATE
^'H^~"'~•»'••™-v"u.r.x•iss,'^.;•
the duw1oPi™,MRT?*EH "k S-W^d 713.721,(TEX.CRIM. APP 2006)
the »L
the SIfrequired
aba has S 'S 5afdefense
5een the
andP«vaHing norm for
appeal atorneys the forty years
to thoroughly7
[EXPARTE.nu^loT^I ISS&f&S'iraST-
\; KI?i!ila^!-s? a. ^s^t"iLr eH
entry hole.YES once ^removed it(i)got a photo of the bullit Exhibi? 17
Attorney Approches the wittnessTRR 2 1SS1 tn 1 7 n ni £,^niD^t i/-
know that this is the same bulli^yoTretriived thatla? 2^1*8? ^
scie*ti£iclviilSSdpGf15rLnBMe2ir^it»OUt *"* obJe«^ to testefie on
"ith l^nnP r™"!•-«» r-^s „pn^therlly fammar'
and violates Tex RULE 702 the proponent must persuade the trial coSrtbv
A??
APP, ?qqfa?e ?eTr hearing-SEE.KELLY
1992 ) alsoHartman V. STATE 824Crim
V. State 946 S.W.2d60(tex S.W?2d 568 (TEX CRl£ '
aPP1997)
sofiK^Q^X; ^rel1 Dow Pharmaceuticals. Inc. aPPiyy/^
T^rHfes^HvIDE"
There was no ballistics atomic absorption test conducted violating
CHATOM V. WHITE 858 F.2d 1479.SEE Barbee V. Warden Maryland Penitentiary
331 F. 2d 842(1964)
The round found as listed in Exhibitl4-15-16-17-18.of a bullit
pursuant to artical 11.073 of The Texas Code of Criminal Procedure ,
Appellant requeats that all available evidence be submitted for scientific
testing of the slugg ie. round bullit found.also any material faberic
found on the car seat appellant is innocent of firming a weapon the sluggs
was already there before all of this occured and the proper test will
prove corrosive texture was already there proving the bullit was not fired,
on the day the court used the exhibits and the day the bullit was found
in a head rest of a car.
APPELLANT IS INNOCENT OF FIREING A WEAPON THE SLUGG WAS ALREDY,
THERE BEFORE ALL OF THIS OCCURED AND THE PROPER TEST WILL PROVE CORROSIVE
TEXTURE SHOWING HOWLONG THIS SLUGG WAS THERE IT REALLY DOES NOT MATTER
OF THE SIZE OF CALIBUR AT THIS TIME BECAUSE THE STATE HAS NO WEAPON AND
THE APPEALLANT STATED HE HAD NO WEAPON. THE POINT IS HOW LONG WAS THE
SLUGG IN THE CAR REST,UNDER 11.073 article applies to any relevent
scientific evidence.without this test.
IT WOULD "SHOCK THE CONSCIENCE" BEING CONVICTED ON THE BASIS OF,
EVIDENCE OBTAINED BY MEANS THAT SHOCKS THE CONSCIENCE...
SEE.ROCHIN V. CALIFORNIA,342 U.S 165 (1952).
•The bullit was speculation of the calibur but the main factor is the
testimony lajm the jury to beleave the bullit was fired when the wind,
shield was knocked out of the car the intire testimony was allowed to
be given leeding a false impression that a gun was present and it
was fired.
THE evidence presented was INSUFFICIENT the convistion was obtained result
of evidence that is insufficient to persuade a properly instructed,
reasonable jury of his guilt beyond a reasonable doubt.
SEE.JACKSON V. VIRGINIA 443 U.S. 307 (1997)Appeallant attorney should of
filed this point of error because it will prove appellant did not fire
no weapon.ie the bullit had to alraedy be there.THIS is false evidence
used to convict MILLER V. PATE 386 U.S. 1(1967).
under 11.073 AND HOUSE V. BELL 126 S,CT 2064(2006)testing undermines the
prosecution theory of the case.Rather biolgical evidence or nitrate
gun powder evidence is used to convict it is subject to testing to
prove innocence of fir&ing a weapon.just because a slugg was found does
not mean the defendant fired the weapon see.MATHEWS V. ELDRIDGE 424 US.319,
(1976) 3 , ,. ....
TEX CODE CRIM PROC. ANN ART 11.073 stated that reasonable diligence
sueeest at least some kind of inquiry has been made into the matter at
isiue EX PARTE SLEDGE 391 S.W.3d 791,794,(Tex CRIM APP.2013) The Intention,
behind article 11.073 is to create a legal avenue for innocent defendants
convicted on based on false and discredited forensic testimony,
(citing Exparte Lemke 13 S.w.3d 791,794(tex crim app 2000)
according to the aationalinstitute of justice nitrite residue testing
or corrosion are not visible testing of this bullit will show it was
there for a longer period of time than what the court leed the jury to
beleave, and will show deffendant did not fire a weapon,
Artical 11.073 offers a vehicle for an appellant to ensure
-- insure they received a fair trial as well as a valid conviction
SEE EXPARTE GUUTIERREZ 337 S.W.3d 883,893 (Tx Crim. App 2011)
Trial counsel and appeallant counsel failed to retain services of fi.
forensic expert SEE.SIMS V. LIVESAY 970 F.2d 1575,
APPEALLANT PRAYS A HEARING JBE CONDUCTED UNDER THIS MOTION TO TEST BULLIT
FOUND IT IS A STRONG P^pACE OF THE EVIDENCE THAT WILL PROVE APPEALLANT
Is innocent of fireingv a weapon the bullit is old of nature a test will
prove there was bad lawyering and false testimony the witness who
tes^ejied a gun was fired would not go in there favor because defendant
did not have or fire a weapon.
APPPEALLANTS ATTORNEYS ARE INEFFECTIVE FOR FAILING TO TEST THE BULLIT
THE OUTCOME OF THE CASE WOULD HAVE BEEN DIFFERENT APPELLANT PRAYS FOR TS
TESTING AND RELEIF TO FILE HIS OWN PRO SE BRIEF.
THE FAILUR TO BE ALLOWED TO FILE A BRIEF THAT HAS MERIT WOULD DENIE
THE RIGHT TO REPRESENT HIMSELF EVEN THOUGH APPEALLANT COUNSEL WAS
APPOINTED SEE.FARETTA V. CALIFORNIA 422 U.S.806(1975).
OTHER SERIOUS FACTORS ARE IN THE INDEX CAUSE NUMBER67789-E,
* NOTICE OF POTENTIAL BRADY MATERIAL PG 44.
* SECOND NOTICE OF POTENTIAL BRADY MATERIAL PG,41.
* THIRD NOTICE OF POTENTIAL BRADY MATERIAL PG 51.
[APPEAL ATTORNEY INVESTIAGTED NONE OF THE BRADY MATERIAL]
claims of ineffective assistance of counsel frequently requires,
an evidentiary hearing.WHERE there ia a dispute the client and attorney
over what occured the trial court is requird to make a credibility
determination that can best be made after a live hearing.
SEE.Gallego V. United States 174 F.3d 1196(llth Cir.l999)is,
particularly instructive on the question of judg^ing credibility when
counsel and the client disagree on factual questions.
Both attorneys have violated and hindered the right to preserve
further appeallant grounds a myriad of other rights,
AS justice Sutherland exsplained in Powell V. Alabama 287 U.S.45.53 S.CT
55,77 L.Ed.158 (1932)"right to the effective assistance of counsel
•SEE.McMann V. Richardson 397,U.S.759,771,n.l4,90 S.CT 1441,1449,25L.Ed.
2d 763(1970)
THE INTEGRITY OF OUR CRIMINAL JUSTICE SYSTEM AND THE FAIRNESS OF THE
AND THE FAIRNESS OF THE ADVERSARY CRIMINAL PROCESS IS ASSURED ONLY IF AN
ACCUSED IS REPRESENTED BY AN EFFECTIVE ATTORNEY.SEE UNITED STATES V.
MORRISON 449,U.S.361,364,101 S,CT.665,667,66L.Ed.2d 564(1981)
Absent the effective assistance of counsel "aserious risk of injustice
infects the trial itself.'cuyler v. sullivan 446 U.S 335,343
the bullit and brady material is far more Lpfportant than some bad check
orrscieml form to impeach some wittnes that has aprior conviction, ^
ALSOTHERE IS PROOF THAT THE RIGHT TO PRESENT A DEFENSE VIOLATING .
CHAMBERS V. MISSISSIPPI 410,U.S 284 (1073)the Identification suggestive
the attorneys allowed this to violate SEE.NEIL V. BIGGERS 409 U.S.188,
(1972) Manson V. Brathwaite 432 U.S 98 (1977)
APPELLANT REQUEST THE RIGHT TO HAVE THE BULLIT TESTED TO SEE HOW OLD
THE SLUGG WAS. AND THE RIGHT TO FILE A PRO-SE BRIEF .
THANEHMQH FOB READING MY ARGUMENT.
RESPECTFULLY SUBMITTED,
tyUi/^ £*eu^ieJff.
07-14-00353-CR
CERTIFICATE 0F COMPLIANCE
PURSUANT OF PROPOSED RULE CERTIFIES THAT THIS MOTION ON REHEARING,
COMPLIES WITH THE TYPE VOLUME LIMITATIONS OF TEX.R.APP.PROCEDURE9.4(e)(i)
EXCLUSIVE THIS MOTION CONTAINS LESS THAN is lass.iiau 2,400 words,
and is only seven pages long.
certificate of service
I HEREBY CERTEFIE THAT THIS HAS BEEN PLACED IN TO THE LEGAL MAIL
MOTION FOR REHEARING ONJULY 29.2015.ALSO THE MAIL ROOM SET ON THE MAIL
I DID NOT GET THE OPION ON THE 17th of July as the attorney makes it appear
respectfully submitted
WL £fi k^toA,
ENCLOSED IS MOTION FOR REHEARING
DEAR CLERK OF APPEALS COURT .
I ASK THAT THIS MOTION FOR REHEARING IS FILED IN THE CORRECT COURT,
AND THAT I RECEIVE NOTICE OF THE TIME STAMED AND FILED.
THANK YOU FOR YOUR ATTENTION IN THIS BATTLE.
CORDIALLY.
1/C /Q"w^.
DI E
SEVENTH COum OF APPEALS
VIVIAN LONG.. CLERK JT
APPENDEX
STATES BRIEF NO#07-14-00353-CR. EX,(6)
PAGES:8,
9,
28
calling 911 because appellant had pulled a gun on the victim. RR2:134-36 Later,
Joel heard a loud noise but is not sure what it was. RR2.136, 139-40
Michael Wheeler. Wheeler has been a police officer over two years.
RR2.141 He responded to this incident 911 call and was flagged down by the
victim. RR2.143 She was visibly upset, crying, shaken, distraught, and afraid.
RR2.144 She had a cut below her eye. Id. He was aware the victim and appellant
had earlier gotten into a fight. RR2.144, 166 Wheeler took photos of the victim
and her vehicle damage. RR2:145-54, 167; §Mm"MMi^9S^Mm$m%m&
m^mimmr6wimmw^mmmm&mw6m§^mm"^mMmi^i"^mMm--
Wheeler interviewed the victim and Officer Landrum interviewed the 911
caller. RR2.156, 159, 165 The victim did not appear to be under the influence.
RR2.165 On cross-exam, Wheeler stated he did not know about the victim's
criminal history. RR2.158 Wheeler testified that knowing her criminal history
would not change his assessment of her that day. RR2.172
Alice Monnet The victim's clothes were identified as prison attire.
RR2.174 She acknowledged that after the events of this case, she got in trouble and
ended up pleading guilty to burglary, robbery, and unauthorized use of a motor
57A7£fr brief-
vehicle. RR2.175 The victim further admitted to past troubles she pled guilty to
and took responsibility for: misdemeanor theft, credit card abuse, and fraudulent
use of ID information back in 2009; and, burglary of a building in 2012. Id.
The end of August 2013, the victim briefly became involved with appellant
and moved in with him but then decided to go back to her husband. RR2:176-77,
195, 198 Thereafter, the victim and appellant got in a fight and he hurt her eye.
RR2:177-78; State's Exhibit:5 On September 8, 2013, she tried to move out and
take her car but she could not find her keys. RR2.178 She had to get someone else
to pick her up and left her car in an undamaged state. Id. On September 9, 2013, at
2:38 p.m., appellant sent her a text message: "Well, your tire is gashed and your
car is shot up. Either come and get it or bring your old man to pick this shit up."
RR2:178-80; State's Exhibit:3
The victim decided to go get her car but called the police on the way because
*- ^she wanted them to be there while she got her stuff. RR2:180-82; State's Exhibit:1-
..J..U
'•' She grew impatient waiting for the police and went ahead and walked over to her
car. RR2.182 When she got close, she saw a tire was slashed and all the other tires
had the air let out and a window was shot out. RR2.183 Then, the victim saw'"
appellant in his truck and they exchanged words and when he got out of his truck,
she ran to the other side of her car and saw he had a gun in his hand. RR2:183-84,
197 The_vicjirn had seen appellant's .38 the night of the assault. RR2.184 He
%
S~7A7tS &ritf.
admitted to theft or crimes of moral turpitude and prior convictions. It has been
held that any alleged error in precluding a party from presenting evidence of a
witness' prior convictions is harmless where the complaining party is allowed to
impeach the witness with other prior convictions or crimes. Smith v. State, 850
S.W.2d 275, 279 (Tex.App.—Fort Worth 1993, pet. refd). Whether the
complaining party has been able to impeach a witness in this manner is equally as
important in balancing probative value against prejudicial effect as it is to whether
the alleged error is harmful. Woodall v. State, 77 S.W.3d 388, 397 (Tex.App.—
Fort Worth 2002, pet. refd). The State's case was strong even without the
complained of prior convictions due to ample evidence of appellant's commission
of the crime from 911 and jail calls and appellant's interview, the admission of
. incriminating testimony, the .38 bullet, and many photos of the scene and victim.
Here, appellant was allowed to impeach the eyewitness with a second-degree
felony theft conviction for which she was still on probation. Defendant's Exhibit:!
Appellant was further allowed to impeach the victim with six prior convictions and
she appeared in her jail jumpsuit since she was incarcerated at the time of the trial
proceedings. Defendant's Exhibits:3-8 Defense counsel was allowed to attack the
credibility of the witnesses in front of the jury and vigorously defended appellant
and cross-examined every witness. The State disagrees the judge abused discretion
regarding impeachment of the two witnesses, and further, argues any alleged error
28
APPENDEX (jf)
MEMORANDUM OPINION JULY 16th,2015
COURT OF APPEALS,SEVENTH DISTRICT DENING MOTION FOR TESTING
COURT OF APEALS OVERRULEING MOTION FOR REHEARING.
K^
Court of Appeals
s>ebenth JBtetrttt of tKexasf at &martlIo
No. 07-14-00353-CR
MICHAEL RAY KENNEDY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 67,789-E, Honorable Douglas Woodbum, Presiding
July 16, 2015
MEMORANDUM OPINION
Before QUTNN, CJ., and CAMPBELL and PIRTLE, JJ.
A jury convicted appellant Michael Ray Kennedy of aggravated assault with a
deadly weapon.1 In so doing, it found appellant pointed a gun at Alice Monnet, a person
with whom he briefly cohabitated. The jury assessed appellant's punishment at twenty-
1See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). This offense is a second
degree felony. Tex. Penal Code Ann. § 12.33 (West 2011).
nine years in prison and the trial court imposed sentence accordingly. Punishment was
enhanced by two prior felony convictions.2 We will affirm the judgment of the trial court.
Background
Because appellant does not challenge the sufficiency of the evidence, we will
state only those facts necessary for the disposition of the appeal. At the hearing on the
State's motion in limine the trial court considered the admissibility of prior convictions to
impeach two of the State's witnesses.3 The prosecutor expressed a belief that Monnet
had seven convictions admissible for impeachment. The court stated if Monnet testified,
her convictions were admissible. Another State's witness, Sally Vasquez, was said by
the prosecutor to have one prior felony conviction. He added that Vasquez, "has been
previously arrested in the past several times for Misdemeanor Class B theft by check;
however, none of those were theft convictions. All of those were actually reduced down
to Class C, Issuance of a Bad Check. . . ." Accordingly, the court ordered in limine that
the issuance-of-bad-checks convictions could not be mentioned at trial unless their
admissibility was first established outside the presence of the jury.
The State called Vasquez and Monnet during its case-in-chief on guilt-innocence.
Evidence on direct and cross-examination established Vasquez was previously
convicted for felony theft. The judgment of conviction, admitted as a defense exhibit,
indicated the theft occurred over a three-year period between 2008 and 2011. The
2 See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2014) (specifying under
stated conditions enhanced imprisonment range of life or twenty-five to ninety-nine
years).
3 See Tex. R. Evid. 609.
value of the property Vasquez stole was $100,000 or more but less than $200,000.
During trial, appellant's counsel did not ask the court to reconsider its order in limine
concerning Vasquez's alleged convictions for "Class C, issuance of a bad check," nor
did appellant make an offer of proof supporting these convictions.
Monnet was brought to trial as a State's witness wearing jail clothes. She agreed
on direct examination that she was "serving [her] time" after pleading guilty to burglary,
robbery, and unauthorized use of a motor vehicle. Monnet also agreed to previously
pleading guilty to burglary of a building in 2012 and theft, credit card abuse, and
fraudulent use of identification information in 2009. Later during direct examination she
admitted using drugs on the day of the alleged assault and expressed a belief that she
and appellant were "high" at that time. On cross-examination, Monnet admitted using
methamphetamine on the day of the assault. She further admitted prior convictions for
"unauthorized use of a motor vehicle," "burglary of a habitation," "robbery," "burglary of a
building," "forgery by passing," and "fraudulent possession of identifying information."
Corresponding judgments were admitted into evidence without objection.
Later during Monnet's cross-examination, the following occurred:
[Defense Counsel]: Did you also get convicted of carrying a prohibited
weapon in-
[The Prosecutor]: Objection, Your Honor. May we approach?
The Court: Sure.
(At bench, on the record)
[Defense Counsel]: Judge, this girl has two-this young lady has two
more-
The Court: Well, we talked about this before this ever started and you said
those are the only ones that you had.
[Defense Counsel]: Right. And I found out she has two more; possession
of prohibited weapon and substance—prohibited weapon convictions in
misdemeanor court and County Court at Law.
The Court: Okay. I'm not going to allow it. You've already said what you
said. I'll instruct the Jury to disregard.
(Open court)
The Court: Ladies and Gentlemen, you're instructed to disregard that last
question.
Analysis
In his sole issue on appeal, appellant complains the trial court abused its
discretion by excluding evidence of Vasquez's alleged convictions for issuing a bad
check and Monnet's alleged two additional convictions.
Appellant chose not to pursue impeachment of Vasquez with her alleged bad-
check convictions. Although raised at the motion in limine hearing, the matter was not
broached at trial. A motion in limine, whether granted or denied, preserves nothing for
appellate review. Griggs v. State, 213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007)
(citing Manns v. State, 122 S.W.3d 171, 190 (Tex.Crim.App. 2003) and G. Dix & R.
Dawson, Texas Practice: Criminal Practice and Procedure § 42.152 (2d ed. 2001)).
Concerning Monnet's two alleged additional convictions, counsel's statement to
the court related some information regarding the impeachment evidence he sought to
introduce, but it was insufficient to meet the offer of proof requirement of Rule of
APftrrjVl ^ ^
BRIAN QUINN
Chiefjustice fflourt of^cpp&ds VIVIAN LONG
Clerk
JAMES T. CAMPBELL
Justice
J&ebettf&i district ai W-exns MAILING ADDRESS:
MACKEY K. HANCOCK
Justice
potter (Emmtjr (Eoxaris ^Suilomg P. O. Box 9540
79105-9540
PATRICK A. PIRTLE
501JL ^xUmorz^uite 2-,A
Justice JWarilfo, ®exaa 79101-2449 (806) 342-2650
October 21, 2015
Michael Ray Kennedy
TDCJ-ID 1968578
Stevenson Unit
1525 FM 766
Cuero, TX 77954
RE: Case Number: 07-14-00353-CR
Trial Court Case Number: 67,789-E
Style: Michael Ray Kennedy v. The State of Texas
Dear Mr. Kennedy:
Before the Court is your motion for "forensic analysis and testing" and your
motion for appointment of counsel. The Court's opinion and judgment were issued on
July 16, 2015. Its plenary power over its judgment expired on September 25, 2015.
Your motions do not indicate the date you placed them in the prison mail system. This
day, the Court ruled that if your motions were timely placed in the prison mail system,
they are denied. See Tex. R. App. P. 9.2(b)(1). If your motions were placed in the
prison mail system after the Court's plenary power expired, they are dismissed for want
of jurisdiction. Tex. R. App. P. 19.1(b).
Very truly yours,
VIVIAN LONG, CLERK
xc: Honorable Douglas Woodburn (DELIVERED VIA E-MAIL)
Caroline Woodburn (DELIVERED VIA E-MAIL)
Katherine L. Levy (DELIVERED VIA E-MAIL)
Don F. Schofield (DELIVERED VIA E-MAIL)

Evidence 103(a)(2). Nothing is preserved for our review.4 Tex. R. Evid. 103(a)(2) (to
preserve error on exclusion of evidence party must make substance of the evidence
known to the court unless apparent from context); Mays v. State, 285 S.W.3d 884, 889-
890 (Tex. Crim. App. 2009) (applying Rule 103(a)(2)); Tex. R. App. P. 33.1(a).
Moreover, even assuming arguendo it was error to exclude the complained-of
evidence concerning the convictions of Vasquez and Monnet, any error was harmless.
Tex. R. App. P. 44.2(b). These two witnesses were thoroughly cross-examined and
their character for truthfulness challenged. We are satisfied the additional convictions
would have carried little or no additional impeachment weight. Tex. R. Evid. 609(a).
Appellant's issue is overruled, and the judgment of the trial court is affirmed.
James T. Campbel
Justice
Do not publish.
For proof of the alleged convictions of Vasquez and Monnet, appellant refers us
to documents attached to his amended motion for new trial. His motion for new trial
does not satisfy the offer of proof requirement of Rule 103(a)(2). See Tex. R. Evid.
103(c) (court must allow party to make an offer of proof as soon as practicable and
before charge is read to jury).
ApM** t&
BRIAN QUINN
Chiefjustice (ttourt nfappeals VIVIAN LONG
Clerk
JAMES T. CAMPBELL
Justice
J&ebexril] ^iiatrict of©exaa MAILING ADDRESS:
MACKEY K. HANCOCK
Justice
Putter (&avmiijj (dourts JJEirilbmg P. O. Box 9540
79105-9540
501^. Jftllmon^ufe 2-