Robinson, Timothy Lee ( 2015 )

...
,
NO.:
IN THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS, IN AUSTIN This document contains so~e
pages that ar~ of p~or quahiy
(PD-0238-ll: and, WR-80, 739-01 & 02) at the time of 1magmg.
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FROM THE SIXTH. COURT OF APPEALS
FOR THE STATE OF TEXAS I IN TEXARKANA lR!ECIE~VElD ~IN
(NO. (S): 06-09-00225-CR & PD-0238-ll) COURTOFCRIMINAU\PPEALS
:,;***************************************************·MAR 1 7 2015
RE: NO.(S) :: CR16,079 & (A/B)
IN THE 76th DISTRICT COURT Abet Acosta, Clerlk
FOR TITUS COUNTY, TEXARKANA, TEXAS
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IN RE TIMOTHY LEE ROBINSON
RELATOR
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RELATOR'S ORIGINAL PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
RELATOR files this ORIGINAL PETITION FOR WRIT OF MANDAMUS for the ambiguous
MEMORANDUM OPINION with MANDATE ISSUANCE by the SIXTH COURT OF APPEALS, reaching a
decision so arbitrary and unreasonable to amount to a clear and prejudicial error of
law and it clearly fails to correctly analyze or apply the law (See, In Re Kimberly -
Clark Corp., 228 S.W.3d 480, 484 (Tex App- Dallas 2007), totally ignoring this COURT OF
CRIMINAL APPEALS' PETITION FOR DISCRETIONARY REVIEW OPINION FOR REMAND, NO. PD-0238-11,
and in part through a dereliction of. duty .from both; RETAINED ATTORNEY CHARLES VAN CLEEF
under contract to complete the entire legal process but allowed, by the 76th DISTRICT
COURT, to withdraw sometime in JULY I AUGUST 2011 without answering and/or advising
RELATOR of the STATE'S PETITION FOR DISCRETIONARY REVIEW submitted to attorney of
record by U.S. mail FEBRUARY 14, 2011; and, sometime in SEPTEMBER / OCTOBER 2011, the
76th DISTRICT COURT'S APPOINTMENT of ATTORNEY CHARLES MAC COBB who failed to FILE ANY
FORM OF ANSWER TO "APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND" delivered VIA HAND DELIVERY
as certified NOVEMBER 19, 2012, clearly failing to analyze and apply law.
RELATOR further files this ORIGINAL PETITION FOR WRIT OF MANDAMUS for the clear
abuse. of discretion by: 76th DISTRICT COURT'S denial to reopel!l!SUPPRESSION HEARING (See
Black v STATE OF TEXAS, 362 S.W.3d 626 (Tex Crim App 2012)); and both, the STATE PROSECUTOR:'s
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2
and 76th DISTRICT COURT'S failure to answer RELATOR'S 11.07 APPLICATION by complying
with TEXAS CODE CRIMINAL PROCEDURES (TCCP, herein) ART. 11.07, Sec.3 (c) & (d),
addressing grounds on ATTORNEY'S OF RECORD denial to effective assistance guaranteed
under the SIXTH AMENDMENT of the UNITED STATES CONSTITUTION, ART. I, § 10 of the TEXAS
CONSTITUTION, and ART. 1.051, Sec. d (1 - 4) of TCCP, INTER - ALIA, arbitrarily
unreasonable, a clear and prejudicial error of law.
RELATOR in support of the aforementioned clear abuse of discretion for said WRIT
ISSUANCE would show the following:
I
RELATOR in the aforementioned ABUSES OF DISCRETION has no adequate remedy at law,
nor appeal process (See, In Re Kimberly Clark, supra, Id .. ), therefore it is incumbent
for this COURT OF CRIMINAL APPEALS to impose ORIGINAL JURISDICTION in this cause.
II
RELEVANT FACTS REVISITED
RELATOR, on AUGUST 25, 2008, upon DETECTIVE CESAR MUNOZ receiving an anonymous tip
that RELATOR was coming home from DALLAS with a large amount of drugs, was subjected
to an incomprehensible traffic stop for alleged failure to apply a turn signal where
NINTH STREET ends and "MERGES" into MARGARET STREET. However, there was "NO TRAFFIC
TICKET OR CITATION ISSUED FOR SAID VIOLATION."
DETECTIVE MUNOZ, a TRAINED. NARCOTICS OFFICER, while in his personal vehicle(unmarked
vehicle, i.e., NO OVERHEAD LIGHTS, NO SIREN, NO POLICE DECALS, etc.), in an assumed
attempt to make the alleged traffic stop, follows RELATOR to the driveway of a residence
at 511 MARGARET STREET, MT. PLEASANT, TEXAS where OFFICER SIMON PORTER moments later
had arrived with RELATOR handcuffed and in custody being detained by DETECTIVE MUNOZ
who. had:
l) removed RELATOR at gunpoint from drivers side of the vehicle and is placed into
custody and detained with handcuffs for an assumed UNCOMPLIANT BEHAVIOR, then kept
at a distance from the vehicle on the drivers side, evidenced through OFFICER PORTER'S
"DASH CAMERA VIDEO" entered into evidence at triaL with RELATOR "NOWHERE IN SIGHT;"
(MUNOZ'S PERSONAL VEHICLE also caught on the video evidencing NO OVERHEAD LIGHTS,
NO POLICE DECALS, etc.,csee STATE'S EXHIBIT J, DVD).
Upon arrival of OFFICER PORTER and assisting officers, the following transpires:
2) RELATOR handcuffed already is detained and questioned by OFFICER PORTER per orders
of DETECTIVE; MUNOZ, while MUNOZ has assisting officers! remove passengers;
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II
RELEVANT FACTS REVISITED
3) RELATOR'S passengers -his brother and brother's girlfriend - are removed from the
passengers side of the vehicle, handcuffed and searched, remaining in the passenger
area detained in custody;
4) WITHOUT PROBABLE CAUSE OR WARRANT TO SEARCH OR ARREST, DETECTIVE MUNOZ obstinately
assumes to obtain PROBABLE CAUSE TO SEARCH through the mulish accusation of smelling
marijuana and observing paraphernalia in PLAIN VIEW, HOWEVER, NOTHING WAS CONFISCATED,
NOR ·PRODUCED AT ANY TIME FOR CONFIRMATION OF SAID PROBABLE CAUSE;
5) MUNOZ continues his claim for a "LAWFUL SEARCH," claiming to have ask, and was
granted consent to search the vehicle, PRODUCING, NO SIGNED CONSENT TO SEARCH FORMS;
6) RELATOR has continually, from time of placement of handcuffs to detain in custody,
remained at a distance from the vehicle on the drivers side, with the passengers
handcuffed detained in custody on the passengers side of the vehicle,.now, DETECTIVE
MUNOZ assisted by OFFICER PORTER (BOTH, NARCOTICS OFFICERS), make an 11 minute
search of the vehicle, yielding NOTHING, NOT EVEN MARIJUANA OR ASSUMED PARAPHERNALIA
(EVIDENT FROM OFFICER PORTER'S DASH CAMERA VIDEO, ENTERED AT TRIAL);
7) NO ONE, ASSISTING OFFICER'S, ESPECIALLY, DETECTIVE MUNOZ and OFFICER PORTER,
TRAINED NARCOTIC OFFICER'S, "SEARCHING FOR 'ANY' CONTRABAND NOTICES A 'GALLON- SIZED,"
CLEAR BAGGIE OF CRACK COCAINE" on the ground in the morning light - on the passengers
side of the car, the other side of the car from where RELATOR had been hand cuffed
detained in custody several feet from the drivers side since the inception (off the
video produced at trial before, during, and after the search) - until after an 11
minute search yielding nothing, coincidently, "AT THE LAST MINUTE OFFICER MUNOZ FINDS
AND PRODUCES THIS ASSUMED EVIDENCE;"
8) NO ONE, AT ANY TIME - not officers, passengers, tipsters, nor anyone else - saw
RELATOR IN ACTUAL CARE CUSTODY, CONTROL, NOR HAS THERE BEEN PRODUCED EVIDENCE TO
RELATOR'S PERSONAL KNOWLEDGE OF ANY PARAPHERNALIA/ CONTRABAND, NOR WAS THE BAGGIE
FINGERPRINTED TO THE KNOWLEDGE OF EVIDENCE PRESENTED AT TRIAL;
9) RELATOR is arrested without warrant under an assumed PROBABLE CAUSE accusation for
the SMELL OF MARIJUANA AND PLAIN VIEW PARAPHERNALIA, PRODUCING NO EVIDENCE THEREOF,
after which MUNOZ claims to have requested and was granted CONSENT TO SEARCH, and
again, PRODUCES NO EVIDENCE OF A "CONSENT TO SEARCH FORM SIGNED BY RELATOR. However,.
RELATOR ARRESTED and PASSENGERS KEPT IN DETAINED CUSTODYi with all transported for
further questioning;
10) OFFICER PORTER, during transport,· confirmed td·RELATOR that Lakeshia Williams, the
front passenger, detained on the passenger side of vehicle confessed drugs are hers;
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II
RELEVANT FACTS REVISITED
On SEPTEMBER 15, 2009, the trial court holds a SUPPRESSION HEARING, with the STATE
introducing "ONLY ONE WITNESS," DETECTIVE CESAR MUNOZ, leaving the question as to why
OFFICER PORTER is not also called, who gave his opinion as to whether the "ENDING OF
NINTH STREET AND THE BEGINING OF MARGARET STREET LAWFULLY QUALIFY AS AN INTERSECTION
REQUIRING USE OF A TURN-SIGNAL." (See, NINTH STREET I MARGARET STREET I MUNOZ POSITION,
DIAGRAM ATTACHED; see also, CITY MAP, introduced by DEFENSE ATTORNEY, REPORTER'S RECORD,
volume 5, EXHIBIT DX -1).
1) MUNOZ assumedly observes RELATOR "TURN" the vehicle he was driving from NINTH STREET
that continues as MARGARET STREET and failed to use a turn signal;
2) It is "MUNOZ'S BELIEF THAT NINTH STREET ENDING INTO MARGARET STREET BEGINING IS AN
TNTERSECTION," thereby, based on belief it is an assumed traffic violation to drive
- . · cme,'s; vehicl~ from NINTH STREET to MARGARETI'STREET' ·wibho.ut· signaling the turn;
3) Based on "MUNOZ'S BELIEF THAT NINTH STREET ENDING INTO MARGARET STREET BEGINING IS
AN INTERSECTION" and failing to use a turn signal to "TURN FROM NINTH STREET TO
MARGARET STREET" is an assumed violation of law, WHILE DRIVING HIS PERSONAL VEHICLE,
MUNOZ, '"HAVING NO OVERHEAD LIGHTS, POLICE DECALS, QUESTIONING SIREN EQUIPTED, ETC.,"
assumedly makes an attempt to make a TRAFFIC STOP on RELATOR for the assumed
violation of law (EVIDENCED PERSONAL VEHICLE OF MUNOl7, FROM DASH CAMER1\. OF OFFICER
PORTER);
4) MUNOZ in his PERSONAL VEHICLE follows RELATOR into a driveway at 511 MARGARET, MT.
PLEASANT, TEXAS, moments before the arrival of OFFICER PORTER in his DEPARTMENT
VEHICLE "EQUIPTED WITH AUDIO I VIDEO CAPABILITY," where MUNOZ had already removed
RELATOR from the vehicle at gunpoint and had handcuffed and detained in custody on
the drivers side, evidenced from.OFFICER PORTER'S AUDIO I VIDEO RECORDING UPON
ARRIVAL WITH RELATOR "NOWHERE IN THE FRAMES OF THE RECORDING, and NO REPEATED COMMANDS
FR0~1 OFFICER PORTER UPON ARRIVAL," evidenced from AUDIO RECORDING OF OFFICER PORTER'S
RECORDING EQUIPTMENT introduced at trial;.
5) Upon entering the driveway of the residence, Lakeshia Williams, the front passenger,
had got out on the passenger's side of the vehicle;
6) With the arrival of OFFICER PORTER, MUNOZ has OFFICER PORTER take control of RELATOR,
"IMMEDIATELY CLAIMING TO SMELL MARIJUANA," yet at trial testifies RELATOR DID NOT
SEEM TO BE UNDER THE INFLUENCE OF ANYTHING, "CLAIMS TO OBSERVE DRUG PARAPHERNALIA
IN PLAIN VIEW/" but produced "NO EVIDENCE OF EITHER," and "CLAIMS THIS ASSUMED SMELL
AND PLAIN VIEW OBSERVATION GIVES HIM PROBABLE CAUSE TO SEARCH, BUT ASSUMEDLY ASK FOR,
AND ASSUMEDLY GIVEN PERMISSION TO SEARCH;"(PRODUCED NO SIGNED CONSENT FORM TO SEARCH).
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II
RELEVANT FACTS REVISITED
On SEPTEMBER 15, 2009, the trial co~rt holds a SUPPRESSION HEARING, (CONTINUED):
7) Tracy Harris, in the back seat on the passengers side was removed from the vehicle
prior to the search, and remained on the passengers side of the vehicle (evidenced
from TRIAL VIDEO PRODUCED);
8) MUNOZ then searched the vehicle for 11 minutes and found nothing in the vehicle,
however, after search of the vehicle turned up NO CONTRABAND, NOT EVEN MARIJUANA OR
PARAPHERNALIA IN PLAIN VIEW, MUNOZ NOW CLAIMS TO FIND A GALLON - SIZED BAGGIE FULL
OF CRACK COCAINE UNDER THE VEHICLE ON THE "PASSENGERS SIDE" WITH RELATOR FROM THE
CONTINUATION OF THE STOP HAS BEEN HANDCUFFED DETAINED IN CUSTODY ON THE "DRIVERS
SIDE" OF THE VEHICLE AS EVIDENT "RELATOR IS NOWHERE IN THE TRIAL INTRODUCED VIDEO;"
9) MUNOZ now ARREST AND HAS RELATOR TRANSPORTED BY OFFICER PORTER, WHO HAD CONFIDED
WITH RELATOR THAT LAKESHIA WILLIAMS HAD CONFESSED TO THE DRUGS BEING HERS, and she
along with Tracy Harris were being transported as well for further questioning;
10) MUNOZ "NEVER ISSUED A TRAFFIC TICKET / CITATION FOR THE ASSUMED TRAFFIC VIOLATION,
SPECIFICALLY, MUNOZ'S BELIEF THAT THE NINTH STREET ENDING INTO MARGARET STREET
BEGINING IS AN INTERSECTION AND FAILING TO USE A TURN SIGNAL TO 'TURN' FROM NINTH
STREET TO MARGARET STREET IS A VIOLATION OF TRAFFIC LAW," thereby questions the
"REASONABLENESS OF THE STOP TO SEARCH THE VEHICLE (See, KOTHE v STATE, 152 S.W.3d 54,
62 (TEX CRIM APP 2004));
11) MUNOZ claimed that the PROBABLE CAUSE TO SEARCH THE VEHICLE (in the absnece of
consent) would have been the SMELL OF MARIJUANA. The information from the anonymous
source was a factor for the stop to obtain a search. Therefore, MUNOZ acknowledged
that there was no way to test the reliability or credibility of the anonymous
informant except by finding contraband, and CLEARLY NO WAY OF FINDING CONTRABAND
WITHOUT A SEARCH WARRANT OR PROBABLE CAUSE, EXCEPT TO MAKE A TRAFFIC STOP;
12) That concluded the testimony and the court determined "THAT PROBABLE CAUSE EXISTED
FOR THE TRAFFIC STOP" and the RELATOR consented to the search of the vehicle. However,
the court indicated it would prepare FINDINGS OF FACT AND CONCLUSION OF LAW IN THE
CASE, BUT WAS NOT DONE UNTIL CASE ABATED BY THE COURT OF APPEALS.
The RELATOR was immediately arraigned; he pled not gjjilty. He pled true -to the;
enhancement paragraph. All of the other, then pending, defense pretrial motions were
granted. Trial presentation was scheduled to begin the next morning at 8;45 AM.
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II
RELEVANT FACTS REVISITED
THE EVIDENCE AT TRIAL
The issue of the legality of the initial traffic stop was re-litigated during the
RELATOR'S jury trial. The jury heard "THE RELEVANT FACTS REVISITED," listed herein at
pages 2 - 5, inter-alia, and especially MUNOZ'S "INCONSISTENT STATEMENTS (TEX PEN CODE
(TPC) § 37.06) WITH THE INTENT TO DECEIVE AND WITH KNOWLEDGE OF THE STATEMENTS MEANING
HE MADE THE FALSE STATEMENT UNDER OATH (TPC § 37.02, PERJURY), and THE FALSE STATEMENT.
WAS MADE DURING AND IN CONNECTION WITH AN OFFICIAL PROCEEDING, SPECIFICALLY THIS TRIAL,
AND WAS MATERIAL. THE STATEMENT WAS MATERIAL, REGARDLESS OF THE ADMISSIBILITY OF THE
STATEMENT UNDER THE RULES OF EVIDENCE, AS IT HAS AFFECTED THE COURSE AND OUTCOME OF
THESE OFFICIAL PROCEEDINGS, SPECIFICALLY, PRE - TRIAL SUPPRESSION HEARING, JURY TRIAL,
COURT OF APPEALS - APPEAL, PETITION FOR DISCRETIONARY REVIEW - COURT OF CRIMINAL APPEALS,
AND COURT OF APPEALS ON REMAND(TPC § 37.03, AGGRAVATED PERJURY; see also, TPC § 37.04,
MATERIALITY). WHETHER A STATEMENT IS MATERIAL IN A GIVEN FACTUAL SITUATION IS A QUESTION
OF LAW ( ID. I AT TPC § 37 .04). II
MORE SPECIFICALLY:
THE SUPPRESSION HEARING TESTIMONY
MUNOZ, under oath, testifies RELATOR "DOES NOT SIGNAL A TURN AT THE ALLEGED
INTERSECTION" where NINTH STREET "ENDS INTO" MARGARET STREET AS HE CONTINUES TO FOLLOW
THE "CURVE INTO MARGARET STREET WHERE NINTH STREET ENDS," thereby, "ONE STREET 'MERGES'
INTO THE OTHER FROM EITHER DIRECTION (See, NINTH STREET I MARGARET STREET I MUNOZ
POSITION, DIAGRAM ATTACHED; see also, "COMPARE," CITY MAP, introduced by DEFENSE
ATTORNEY, REPORTER'S RECORD, volume 5, EXHIBIT DX- 1)."
R8 - LITIGATED SUPPRESSION TESTIMONY AT TRIAL
MUNOZ, under oath, testifies and admits NINTH STREET and MARGARET DRIVE "MERGE"
at THEIR "INTERSECTION." When asked whether there were "ANY TRAFFIC SIGNS OF ANY KIND"
at "THE INTERSECTION," MUNOZ responded, "I don't believe. It's just a-- it's 'AN
INTERSECTION. I II
The SIXTH COURT OF APPEALS, CAUSE NO. 06-09-00225-CR, MEMORANDUM OPINION, concedes
''The record also contains evidence that the traffic from NINTH STREET 'DOES MERGE ONTO
lSHOULD STATE "INTO") MARGARET DRIVE.' The defense introduced a map which suggests
'NINTH STREET MERGES WITH MARGARET DRIVE.' The defense exhibit appears to be photocopied
from a commercial atlas (See, SIXTH COURT OF APPEALS, MEMORANDUM OPINION, at page 10,
ICI •• )."
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II
RELEVANT FACTS REVISITED
CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT
'·
"At the SUPPRESSION HEARING, the defense showed MUNOZ a map, which MUNOZ described
as incorrect. When asked, '[D]oes NINTH STREET CURVE INTO MARGARET DRIVE?' MUNOZ
responded, 'YES, IT DOES, but the way that indicates is incorrect to the actual way
the street is. That's incorrect.' MUNOZ admitted THERE WERE NOT ANY TRAFFIC SIGNS AT
'THE INTERSECTION,' BUT TESTIFIED, '[Ninth Street] DOESN'T CONTINUE ONTO MARGARET
though there is 'AN INTERSECTION.'"(MEMORANDUM OPINION, supra, pg. 10, Id .. ).
"At TRIAL, ... The defense introduced a map which suggests NINTH STREET MERGES WITH
MARGARET DRIVE .•. According to MUNOZ, the defense exhibit was incorrect '[~]cause ln
[the defense exhibit], EAST EIGHTH does not run into MARGARET, and then you've got EAST
NINTH, and they run parallel to each other.'" (Id.).
APPELLANT'S BRIEF is confusing in that the "REPORTER'S RECORD (RR, herein)" is
mentioned at the beginning of "B. SUPPRESSION HEARING" and "C. TRIAL TESTIMONY" in the
first paragraphs, pages 10 & 13, and VOLUME NUMBER, thereafter listing "ONLY PAGE NUMBER
WITHOUT A LINE NUMBER (P, FOR PAGE NUMBER, herein, for comparison).
APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND, however, lists "REPORTER'S RECORD (RR)"
throughout, listing VOLUME NUMBER (V},_ LINE :NUMBER~(L)-i. and, PAGE NUMBER (P).
APPELLANT'S [RELATOR'S] BRIEF CLEARLY REVEALS THE STATE [APPELLEE] upon presentation
to the jury removed the alleged evidence from the [STATE'S EXHIBIT 2] ENVELOPE "TO SHOW
TO THE JURY ALONG WITH THE ALLEGED WRITTEN STATEMENT." At this moment, defense attorney
"MADE AN OBJECTION TO THE EVIDENCE,.AND TO THE STATEMENT AS 1HEARSAY.'" SPECIFICALLY:
"Also, the State was once again allowed to place the alleged written statement of
the appellant AND EVIDENCE DESPrTE DEFENSE COUNSEL'S OBJECTION (HEARSAY); the statement
was read for the jury. Ibid. at (RR, ~ ~' f) 23, 24 - 25. THE ENVELOPE in which the
SUSPECTED COCAINE WAS PLACED (STATE'S EXHIBIT ~) and ~ DVD (State's Exhibit }_) WERE
ALSO ADMITTED, without objection. Ibid. at (RR, ~ ~~~) 28- 29.(APPELLANT'S BRIEF, Id.
at C. TRIAL TESTIMONY, page 13).
"The following witness.was Detective Ray yokel, a 'CHAIN OF CUSTODY WITNESS.' Ibid.
at (RR, V 3, P) 105.
"The next witness was Karen Shumate, A Texas Department of Public Safety Crime Lab
employee who 'TESTIFIED ABOUT THE NATURE OF THE CONTRABAND.'Ibid. at (RR, V 3, P) 109.
She 'TESTIFIED THAT THE CONTRABAND WEIGHED 294.64 g.'" Ibid. at (RR, V 3, P) 112.
(APPELLANT'S BRIEF, NO. 06-09-00225-CR, supra, Id. at c~ TRIAL TESTIMONY, page 16).
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II
RELEVANT FACTS REVISITED
CUNFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT
(CONTINUED)
[STATE'S EXHIBIT 2]
STATE'S EXHIBIT 2 at the point of introduction into evidence was "THE ENVELOPE"
that was introduced at the same time as STATE'S EXHIBIT 3 "THE DVD" without objection.
(APPELLANT'S.BRIEF, supra, Id. at C. TRIAL TESTIMONY [RR, V 3, P 23, 24-25] pg. 13).
STATE'S EXHIBIT 2 "THE ENVELOPE": the purpose of Detective Ray YokEd's testcimony is to
establish "THE CHAIN OF CUSTODY" through the sealing and initialing I coding of "THE
ENVELOPE" to be sent to the CRIME LAB.
STATE'S EXHIBIT 2 "THE ENVELOPE":the purpose of Karen Shumate's testimony is to
establish the procedures in "THE CHAIN OF CUSTODY UPON RECEIPT OF 'THE ENVELOPE'" with
the ways and means upon which she checks the sealing, opening, and resealing of "THE
ENVELOPE~ n She also "TESTIFIED ABaJT THE NATURE OF THE CONTRABAND," and "THAT THE
CONTRABAND WEIGHED 294.64 g. (APPELLANT'S BRIEF, supra, Id. at C. TRIAL TESTIMONY [RR,
v 3, p 105, 109, 112] pg. 16).
DEFENSE ATTORNEY'S, was precisely, "NO OBJECTION TO STATE'S EXHIBIT 2, 'THE ENVELOPE'
AS PERTAINING TO CHAIN OF CUS'IDDY, NATURE OF THE CONTRABAND, AND WEIGHT OF CONTRABAND,"
Id., supra.
HOWEVER, in a DELUSIONAL MISCHARATERIZATION OF THE "NO OBJECTION STATED AT THIS
POINT IN THE TRIM.," the STATE INTENTIONALLY MISLEADS THE COURT OF APPEALS INTO BELIEVING
RELATOR HAS WAIVED ANY APPELLATE REVIEW OF HIS MOTION TO SUPPRESS BECAUSE OF THE STATE'S
"MISREPRESENTATION OF THE .A.FOOEMENTIONED TESTIMONY AS THE STATE'S INTRODUCTIOO OF THE
EVIDENCE, WHEN IN FACT, AS AFOREMENTIONED, THE STATE'S PRESENTATION IS 'THE CHAIN OF
aJS'IDDY PROCEDURES, THE TESTIMONY ABOUT THE NATURE OF THE CONTRABAND, AND THE CDNTRAB1\NDS
WEIGHT, ALL OF WHICH DEFENSE ATIURNEY HAS NO OBJECTION. ' "
APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND, NO. 06-09-00225-CR, Id. at pg. 7, THE STATE
CATEGORIZES IT THIS WAY:
"Subsequently, the State offered as State's Exhibit 2 the controlled substance, .
the subject of Robinson's objection in his motion to suppress. RR V 3, P 110, L 22-
P 112, L 8. With the benefit of Munoz's characterization of the intersection, counsel
for Robinson asserted, "No objection[,]" to the admission of State's Exhibit 2. RR V 3
P. 112, L 10. The evidence was received. RR V 3, P 112, L 11. At that point Robinson
waived any complaint about the admissibility of the controlled substance."
STATE'S EXHIBIT 2 AT THIS POINT "IS TilE ENVEWPE BEING ADMITTED, CHAIN OF CUS'IOOY."
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II
REVELANT FACTS REVISITED
CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT
(CONTINUED)
[MISCHARACTERIZATION OF INTERSECTION DEFDUTION]
DETECTIVE CESAR MUNOZ and OFFICER SIMON RAY PORTER take an oath upon entering the
MOUNT PLEASANT POLICE DEPARTMENT to uphold the laws and ordinances of MOUNT PLEASANT,
TEXAS as well as the STATE OF TEXAS. Therefore, if any person is in violation of the
laws and/or ordinances of MOUNT PLEASANT and/or THE STATE OF TEXAS these officer's
have a duty and obligation to uphold said laws and/or ordinances. It would thereby, be
an unlawful act for the DETECTIVE and/or OFFICER'S to ARREST SOMEONE IN VIOLATION OF
SAID LAWS AND/OR ORDINANCES.
HOWEVER, THIS IS PRECISELY WHAT HAS HAPPENED IN THIS CASE THROUGH THE MISCHARACTER-
IZATION OF THE TURN WHERE NINTH STREET "ENDS TURNING IN'ID" MARGARET DRIVE AND "BEJING
AN INTERSECI'ION" in direct violation to, "CITY CODES OF MOUNT PLEASANT, TEXAS CODE OF
ORDINANCES, SECTIONS 70.01 AND 71.030 (APPENDIX, TAB A., Id.; attached hereto.),
THEREBY, THE EVIDENCE OBTAINED AS A RESULT OF. THE ILLEGAL DETENTION IS TAINTED BY THE
UNLAWFUL POLICE ACTIONS AND IS TRADITIONALLY BARRED AS "FRUITS OF THE POISONOUS 'l'REE."
SEE, SEGURA v UNITED STATES, 468 U~S. 796, 804 (1984); WONG SUN v UNITED STATES, 371
I
u.s. 471 (1963). The DETENTION was ILLEGAL, and there is a clear casual connection
between the detention and the discovery of the drugs. The State h?s not alleged that
the discovery of the drugs or RELATOR'S subsequent confession was sufficiently attenuated
from the illegal detention to purge the taint of the illegal detention. BROWN v ILLINIOS,
422 U.S. 590 (1975); BELL v STATE, 724 S.W.3d 780 ( TEX CRIM APP 1986).
First, for clarity, the characterization of NINTH STREET "ENDING AND TURNING INTO"
MARGARET DRIVE and ''BEING AN INTERSECTION" looking like a "Y" or even a "U" is a
complete and utterly misconceived characterization of the "STREETS."
The "STREETS" are better characterized as a person standing in a ,;BOOT." (See,
NINTH STREET / MARGARET DRIVE / MUNOZ POSITION, DIAGRAM ATTACHED; see also, CITY MAP,
introduced by DEFENSE ATTORNEY, :REPORTER 1 S RECORD, VOLUME 5, EXHIBIT DX - 1) •
The MENTAL PICTURE is to illustrate the "CURVE / MERGE" of NINTH STREET'S "END INTO"
MARGARET STREET'S "BEGINNING." SPECIFICALLY, as with a "BOOT" starting NINTH STREET at
YOUR TOES coming across the top of your foot to the ankle, there being the end of NINTH
STREET, curving up your leg, there being the beginning of MARGARET DRIVE, and this
continues to your crotch, as MARGARET DRIVE. -of course, at your ankle you could turn,
thereby, going into the heal of the "BOOT," or a DEAD END PORTION OF MARGARET DRIVE.
/()
II
RELEVANT FACTS REVISITED
CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT
(CONTINUED)
[MISCHARACTERIZATION OF INTERSECTION DEFINITION]
Second, keeping the MENTAL PICTURE IN MIND, NINTH STREET and MARGARET DRIVE are a
two way street, two lanes, one lane going one direction, the other lane going the
opposite direction. Clearly, with RELATOR coming down NINTH STREET, from the "TOE OF
THE BOOT ACROSS THE TOP OF THE FOOT TOWARD THE ANKLE," in the single lane that.as you
make ?'THE CURVE TURNING," as does the ankle heading up the leg toward the crotch, "INTO
MARGARET DRIVE WHERE THERE IS 'NO INTENTION TO TURN THE VEHICLE FROM THE DIRECT COURSE
OF THE STREET, CHANGE LANES, START FROM A PARKED POSITION (TEX. TRANSP. CODE(S) §§
545.104(a), 545.106; MAHAFFEY v STATE, 316 S.W.3d 633, 639 (TEX CRIM APP 2010)), NOR,
IS THERE ANY OTHER TRAFFIC BEING AFFECTED BY SUCH MOVEMENT, OR CONFLICT WITH ANY OTHER
VEHICLES TRAVELING UPON DIFFERENT STREETS JOINING AT ANY OTHER ANGLE (CITY OF MOUNT
PLEASANT, TEXAS, CODE OF ORDINANCES §§ 70.01, at "INTERSECTION;" 71.030, at "STOPPING
AND TURNING SIGNALS;" attached hereto, APPENDIX, TAB A).'"
Finally, in 'MUNOZ'S OPINION" a traffic infraction had occurred when RELATOR/
traveling from NINTH STREET to MARGARET DRIVE, "CONTINUED TO THE RIGHT WITHOUT TURNING
HIS TURN SIGNAL ON[,]" WHICH THE RELATOR HAD "A DUTY" TO DO AT THE "INTERSECTION."
EVEN THOUGH, "MUNOZ ACKNCl'H.EDGED" THAT THERE ARE "NO TRAFFIC SIGNALS OR SIGNS AT 'THIS
INTERSECTION; '" however, MUNOZ did not waver from his position that, "ALTHOUGH THE Fta'J
OF TR.AFFIC AT THIS JUNCTURE 'COULD BE CHARACTERIZED AS SIMPLY FOLI.a'JING' THE ROADWAY
AROUND ONTO MARGARET DRIVE I TO I TURN I OR I CONTINUE I ONTO MARGARET DRIVE FRcx-1 NINTH
STREET WITHOUT A SIGNAL 'IS A VIOLATION OF THE LAW.'" (COURT OF CRIMINAL APPEALS/ Slip.
'
Op., PD-0238-11; see also, CITY OF MOUNT PLEASANT, TEXAS, CODE OF ORDINANCES§§ 70.01/
at INTERSECTION; and 71.030, at STOPPING and TURNI~G SIGNALS, APPENDIX TAB A). MUNOZ,
AS AN OFFICER OF THE MOUNT PLEASANT, TEXAS1 POLICE DEPARTMENT, "WAS OF THE OPINION
'mAT A TRAFFIC INFRACTION HAD OCCURRED IT WAS HIS DUTY AND/OR OBLIGATION TO ESTABLISH
THE ENFORCEMENT OF ANY VIOLATION, EITHER ·BY THE IsSuANCE OF A CITATION AND/OR TRAFFIC
TICKET, THEREBY, ESTABLISHING THAT AN ACTUAL INFRACTION HAS OCCURRED."
Otherwise, as RELATOR'S MOTION TO SUPPRESS argued, inter-alia, thatthetraffic stop,
purportedly for the failure to signal a turn "AT AN INTERSECTION, 'WAS A PRETEXT TO
JUSTIFY AN ON462 U.S. 213/571, 76 LEd 2d 527, 103 S. Ct. 2317, reh den (US) 77 LEd 2d 1453,
10
l!
II
RELEVANT FACTS REVISITED
CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT
(CONTINUED)
[MISCHARACTERIZATION OF INTERSECTION DEFINITION]
104 S. Ct. 33, orig cites omitted).
The two MOUNT PLEASANT POLICE OFFICER'S, DETECTIVE CESAR MUNOZ and OFFICER SIMON
RAY PORTER, had no basis in experience for confidence in the reliability of the
anonymous caller at 6:00a.m.; one has to assume he has never before given information.
And yet they acted upon this information. The UNITED STATES SUPREME COURT has held that
identification of the suspect BY A RELIABLE INFORMANT may constitute PROBABLE CAUSE for
ARREST where the information given is sufficiently accurate to lead officers directly
to the suspect. DRAPER v UNITED STATES, 358 U.S. 307.
It is conceded that the officers made NO ATTEMPT to obtain A WARRANT for RELATOR'S
ARREST. The simple fact is that on the sparse information by AN ANONYMOUS INFORMANT at
the officers command, NO ARREST WARRANT could have been ISSUED consistently with Rules
3 and 4 of the FEDERAL RULES OF CRIMINAL PROCEDURES, NOR, TEXAS CODE OF CRIMINAL
PROCEDURES CHAPTERS 15 and 18. GIORDENELLO v UNITED STATES, 357 U.S. 480, 486.
The UNITED STATES SUPREME COURT noted in GIORDENELLO that Rules 3 and 4, just as
TEXAS CODE OF CRIMINAL PROCEDURES CHAPTERS 15 and 18, provide that an ARREST WARRANT
SHALL ISSUE ONLY upon a SWORN COMPLAINT setting forth "the essential facts constituting
the offense charged," and showing "that there:IS PROBABLE CAUSE TO BELIEVE that an
offense has been commited and THAT THE DEFENDANT HAS ~ITTED IT ••.• "THE FOURTH
AMENDMENT, from which the requirements of the RULES I CHAPTERS derive, provide that ••.
no WARRANT SHALL ISSUE, but upon PROBABLE CAUSE, supported by Oath or Affirmation, and
PARTICULARLY DESCRIBING ... the persons or things to be seized. Id.
The ARREST WARRANT PROCEDURE serves to insure that the deliberate, impartial
judgement OF A JUDICIAL OFFICER WILL BE INTERPOSED between the citizen and the police,
TO ASSESS THE WEIGHT AND CREDIBlLlT¥ OF 'tHE INFORMATION WHICH THE CQIIIPLAINING OFFICER
ADDUCES AS PROBABLE CAUSE. Cf. JONES v UNITED STATES, 362 U.S. 257, 270. TO HOLD THAT AN
OFFICER MAY ACT IN HIS ~, UNCHECKED DISCRETION UPON INFORMATION TOO VAGUE AND:'FROM'.. TOO
UNTESTED A SOURCE TO PERMIT A JUDICIAL OFFICER TO ACCEPT IT AS PROBABLE CAUSE F8R AN
ARREST WARRANT WOULD SUBVERT THIS FUNDAMENTAL POLICY. Id.
A"contrary holding here would mean that a vague suspicion could be TRANSFORMED INID
PROBABLE CAUSE FOR ARREST BY REASON OF AMBIGUOUS CONDUCT WHICH THE ARRESTING OFFICERS
themselves have prevoked. Cf. HENRY v UNITED STATES, 361 U.S. 98. That result would have
11
12
II
RELEVANT FACTS REVISITED
, CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT
(CONTINUED)
:1
[MISCI-lARACTERIZATION OF INTERSECTION DEPINITION]
the same essential vice as a proposition the UNITED STATES SUPREME COURT has consistently
REJECTED --- TEIAT A SEARCH UNLAWFUL AT ITS INCEPTION MAY BE VALID.l\'IED BY WHAT IT 1URNS
UP. BYARS v UNITED STATES, 273 U.S. 28; UNITED STATES v Di Re, 322 U.S. 581, 595.
In order to make effective the fundamental constitut.io.nal quarantees of sanctity
of the home and inviolability of the person, BOYD v UNITED STATES, 116 U.S. 616, the
UNITED ,STATES SUPREME COURT held nearly a century ago that evidence seized during an
unlawful search could not constitute proof against the victim of the search. WEEKS v
UNITED STATES, 232 U.S. 383. The EXCLUSIONARY PROHIBITION extends as well to the indirect
as the direct products of such invasions. SILVERTHORNE LUMBER CO. v UNITED STATES, 251
U.S. 385. MR. JUSTICE HOLMES, speaking for the COURT in that case,. in holding that the
government might not make use of information obtained during an unlawful search to
subpeona from the victims the very documents illegally viewed, expressed succinctly the
policy of the BROAD EXCLUSIONARY RULE:
The essence of a provision forbidding the acquisition of evidence in a certain way
is that not merely evidence so acquired shall not be used before the COURT, but
that it shall not be used at all. Of course, this does not mean that the facts thus
obtained become sacred ·and inaccessible. If knowledge of them is gained from an
independent source, they may be proved like any others, but the knowledge gained
by the GOVERNMENT'S OWN WRONG CANN01' BE USED by it in the way proposed. 251 U.S. at
392.
The EXCLUSIONARY RULE has traditionally barred from trial physical, tangible
materials obtained either during or as a direct result of an unlawful invasion. It
follows from the UNITED STATES SUPREME COURT holding in SILVERMAN v UNITED STATES, 365
U.S. 505, that the FOURTH AMENDMENT ma·y protect against the overhearin"g of verbal
statements as well as against the more traditional seizure of "PAPERS AND EFFECTS."
Similarly, testimony as to matters observed during an unlawful invasion has been excluded
1n orde to enforce the basic constitutional policies. MC GINNIS v UNITED STATES, 227 F
2d 598. Thus, verbal evidence which derives so immediately from an unlawful entry and/or
unauthorized arrest as the officers' action in the present case is no less the 11
fruit"
of official illegality than the more common tangible fruits bf the unwarranted TRAFFIC
12
1.:5
II
RELEVANT FACTS REVISITED
CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT
(CONTINUED)
[MISCHARACTERIZATION OF INTERSECTION DEFINITION]
STOP. See KAMISAR, ILLEGAL SEARCHES OR SEIZURES AND CONTEMPORANEOUS INCRIMINATING
STATEMENTS: A Dialogue on a Neglected Area of Criminal Procedure, 1961 u. of Ill. Law
Forum 78, 84 - 96. But compare MARGUIRE, Evidence of Guilt (1959) 187 190. NOR DO
the policies underlying the EXCLUSIONARY RULE INVITE ANY LOGICAL DISTINCTION BETWEEN
PHYSICAL AND VERBAL EVIDENCE. Either in terms of deterring lawless conduct by federal
(arid/or MOUNT PLEASANT, TEXAS) officers, REA v UNITED STATES, 350 U.S. 214, or of closing
the doors of the (DISTRICT and/or) federal courts to any evidence unconstitutionally
obtained, ELKINS v UNITED STATES, 364 U.S. 206, the danger in relaxing the EXCLUSIONARY
RULES would seem too great to warrant introducing such a distinction.
For reasons stated herein the WRONGFUL MISCHARACTERIZATION OF INTERSECTION DEFINITION
by the COURT OF APPEALS in this case has allowed the ignorance of MOUNT PLEASANT'S own
CITY CODE Of ORDINANCES, PRECISELY, GENERAL PROVISIONS, § 70.01 DEFINITIONS at
INTERSECTION and§ 71.030 STOPPING AND TURNING at (A) General (1), and by DEFINITION,
RELATOR WAS NOT IN VIOLATION OF SAID CITY CODES, THEREFORE, THE ARREST IS UNI.AWFOI..
Id. at APPENDIX, TAB A.
[THE ARREST / DETAINMENT AT GUNPOINT]
RELATOR, at gunpoint, had been handcuffed and questionably detained, to be shortly
afterwards arrested by an assumed probable cause of a plain view "hallowed out cigar
and marijuana residue," none of which HAS EVER BEEN PRODUCED. Under suchcircumstances,
it is unreasonable to infer that RELATOR'S RESPONSES were sufficiently an act of free
will to purge the primary taint of the UNLAWFUL TRAFFIC VIOLATION ARREST.
SEE, LORD DEVLIN'S comments:
It is probable that, even today, when there is less ignorance about these matters
than formerly, there is still a general belief that you must answer all questions
put to you by a policeman, or at least that it will be the worse for you if you do
not.
DEVLIN, The Crimi~al Prosecution in England (1958) 32.
Even in the absence of such oppressive circumstances, and where an EXCLUSIONARY
RULE RESTS principally on NONCONSTITUTIONAL'GROUNDS, THE UNITED STATES SUPREME COURT
has sometimes refused to differentiate between voluntary and involuntary declarations.
13
/f
II
RELEVANT FACTS REVISITED
CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT
(CONTINUED')
[THE ARREST / DETAINMENT AT GUNPOINT]
See Hogan and Snee, The McNabb - Mallory Rule: Its Rises, Rationale and Rescue, 47
Geo.L~J. 1, 26- 27 (1958). For illustrative situations where a voluntary act of
the accused has been held insufficient to cure the otherwise unlawful acquisition
of evidence, SEE BYNUM v UNITED STATES, 262 F2d 465 (holding inadmissable finger·~
prints made by defendant after unlawful arrest); UNITED STATES v WATSON, 189 F.SUPP.
766 (excluding narcotics voluntarily surrendered by accused in the course of an
unauthorized search). The Ninth Circuit Court of Appeals has rec;:ognized in an
analogous context, that "all declarations and statements under compulsion of the
things so seized, are affected by the vice of primary illegality .••.• "
TAKAHASHI v UNITED STATES, 143 F2d 118, 122.
The prosecutor, and through the testimony of DETECTIVE CESAR MUNOZ, candidly told
the trial court that "On August 25, 2008, after receiving AN ANONYMOUS TIP that
ROBINSON was coming home from Dallas with a large amount of drugs, DETECTIVE CESAR
MUNOZ set up surveillance near TIMOTHY ROBINSON'S home." RR V 2, P 14, L 20- P 15, L
22; V 2, P 17, L 12- 16; V 3, L 25 - P 32, L 5. Hence, this was not to be a case
envisioned by the COURT'S where the EXCLUSIONARY RULE has no application because the
Government learned of the evidence "FR(]WI AN ~US INDEPENDANT SJURCE," SILVERTHORNE
LUMBER CO. v UNITED STATES, 251 U.S. 385, 392; nor is this a case in which the connection
between the lawless conduct of the police and the discovery ofthechallenged evidence
has "become so attentuated as to dissopate the taint." NARDONE v UNITED STATES, 308 U.S.
338, 341. The COURT'S,need not hold that all evidence is "FRUIT OF THE POISONOUS TREE"
simply because it would not have come to light but for the illegal actions of the police.
Rather, the more apt question in such·acase is.whether, granting establishment of the
primary illegality, the evidence ·to which instant objection is,made has been come at by
EXPLOITATION OF THAT ILLEGALITY or instead by means sufficiently distinguishable to be
purged of the primary taint. MAGUIRE, EVIDENCE OF GUILT 221 (1959).
RELATOR thinks it is clear that the DRUGS were "COME AT BY THE EXPLOITATION OF THE
TRAFFIC VIOLATION ILLEGALITY, NOT IN VIOLATION OF CITY CODES, NO EVIDENCE PRODUCED
SUPPORTING PROBABLE CAUSE, NO TRAFFIC TICKET / CITATION TO SUPPORT TRAFFIC VIOLATION
BELIEF OF OFFICER, NO CORROBORATION OF ANONYMOUS INFORMANT AND/OR CREDIBILITY, INTER -
ALlAr and hence flrat they were not to be used against RELATOR.
14
/.5
II
RELEVANT FACTS REVISITED
. CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT
(CONTINUED)
[THE ARREST / DETAINMENT AT GUNPOINT]
'· i
It is a: settled principle of the admtnis.tJZation of criminal justice in the federal
courts that a conviction must rest upon firmer ground than the uncorroborated admission
or confession of the accused.
Moreover, the UNITED STATES SUPREME COURT held in OPPER v UNITED STATES, 348 U.S. 84,
92, that even where exculpatory statements are voluntary and thus clearly admissible,
fhey require at least the degree of corroboration required of incriminating statements.
The UNITED STATES SUPREME COURT observed in SMITH v UNITED STATES, 348 U.S. 147, 153,
that the requirement of corroboration is rooted 1n a long history of judicial experience
with confessions and in the realization that SOUND LAW ENFORCEMENT REQUIRES POLICE
INVESTIGATION WHICH EXTEND BEYOND THE WORDS OF THE ACCUSED.
Again, in OPPER v UNITED STATES, supra, Id. at 89 - 90, the COURT elaborated the
reasons for the requirement:
In our country, the doubt persists that the zeal of the agencies of prosecution to
protecLthe peace, the self - interest of the accomplice, the maliciousness of an
enemy or the aberration or weakness of the accused under the strain of suspicion
may tinge or warp the facts of the confession. Admissions, retold at a trial, are
much like hearsay·j that is statements not made at the pending trial. They had
neither the compulsion of the oath nor the test of cross - examination.
In SMITH v UNITED STATES, supra, the UNITED STATES SUPREME COURT held it is
true, that although "corroboration is necessary for all elements of the offense
established by admissions alone," extrem;;ic proof was sufficient which "merely
fortifies the truth of the confession, without independently establishing the crime
charged ..• " 348 U.S. at 156.
Where a crime involves no tangible corpus delicti, the UNITED STATES SUPREME
COURT has said that "the corroborative evidence must implicate the accused in order
to show that a crime has been committed." 348 U.S. at 154. Id.
Finally, the UNITED STATES SUPREME COURT has said that one uncorroborated
admission by the accused does not, standing alone, corroborate an unverified
confession. UNITED STATES v CALDERON, 348 U.S. 160, 165. Id.
While probable cause must be based on more than mere suspicion, HENRY v UNITED
STATES, 361 U.S. 98, 104 (1959), it does not require proof sufficient to establish guilt.
15
16
II
RELEVANT FACTS REVISITED
CONFUSIVE TESTIMONY FROM HISTORICAL STANDPOINT
(CONTINUED)
[THE ARREST / DETAINMENT AT GUNPOINT]
DRAPER v UNITED STATES, 358 U.S. 307, 312 (1959). The sole requirement heretofore has
been that the knowledge in the hands of the officers at the time of the arrest must
support a "man of reasonable caution in the belief" that the subject had committed
narcotic offenses (see RELATORS CASE). CARROLL v UNITED STATES, 267 U.S. 132, 162 (1925).
The decision is faced initially not in the courtroom, but at th.e scene of arrest, where
the totality of circumstances facing the officer is weighed against his split - second
decision to make arrest.
In WONG SUN v UNITED STATES, 371 U.S. 471, 497-98; B3 S Ct 407, 9 LEd 2d 441 (1963),
(As in RELATORS CASE) , MR. ,JUSTICE DOUGLAS, concurred stating:
While I join the Court's opinion, I do so because nothing the Court holds is
inconsistent with my belief that there having been time to get a warrant, probable
cause alone could not have justified the arrest of petitioner (RELATOR) Toy
(ROBINSON) without a warrant.
I adhere to the views I expressed in JONES v UNITED STATES, 362 U.S. 257, 273. What
I said in the JONES case had been earlier stated by MR. JUSTICE JACKSON, writing
for the Court in JOHNSON v UNITED STATES, 333 U.S. 10 (another narcotics case):
The point of the FOURTH AMENDMENT, which often
I
is not grasped by zealous officers,
is not that it denies law enforcement the support of usual inferences which
reasonable men draw from evidence. Its protection consist in.requiring that those
inferences be drawn by a nuetral and detached magistrate instead of being judged
by the officer engaged in the often competitive enterprise of ferreting out crime.
I
Any assumption that evidence sufficient to support a magistrate's disinterested
determination to issue a search warrant will justify the officers 1n making a
search without a warrant would reduce the AMENDMENT to a nullity and leave people's
homes (cars, effects, inter alia) only in the discretion of police officers. Pp.
13 - 14. And see CHAPMAN v UNITED STATES, 365 U.S. 610, 615 - 616.
The Court finds it unnecessary to reach that constitutional question. I mention it
only to reiterate that the [83 S ct 423] JOHNSON case represents the law, and is in no
way eroded by what we fail to decide today.
I
Clearly RELATOR'S case should be given this same standard of consideration.
16
17
II
RELEVANT FACTS REVISITED
*******************************
RELATOR does not, nor has he ever, had access to the record in this case. Therefore,
the "RELEVANT FACTS REVISITED" are, from personal recollection, and/or paraphrased from
the RENDITIONS of the COURT OF CRIMINAL APPEALS, SIXTH COURT OF APPEALS, APPELLEE'S
SUPPLEMENTAL BRIEF ON REMAND, APPELLEE'S PETITION FOR DISCRETIONARY REVIEW, APPELLEE'S
ORIGINAL BRIEF ON APPEAL, and APPELLANT'S (RELATOR'S) ORIGINAL BR'IEF ON APPEAL to the
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS.
*******************************
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
A. The failure to grant the defense motion to suppress:
The record reveals DETECTIVE CESAR MUNOZ, and other STATE'S witnesses, expressed
what amounts to nothing more than an anonymous phone call that RELATOR was coming into
town with a large amount of drugs. Instead of going to a MAGISTRATE, as that would
require PROBABLE CAUSE, TO OBTAIN AN ARREST WARRANT (TEX CODE CRIM PROC CHAPTER 15) or
A SEARCH WARRANT (TEX CODE CRIM PROC CHAPTER 18), MUNOZ decides he will call a fellow
officer (SIMON RAY PORTER) and they'll make an ARREST WITHOUT WARRANT (TEX CODE CRIM
PROC CHAPTER 14) as they position themselves to await RELATOR'S arrival.
Coincidently, MUNOZ assumedly observes RELATOR drive down NINTH STREET that turns
into MARGARET DRIVE, similar to any curve in a road, merely following the direct course
(
of the road, without using a turn signal. This is MUNOZ'S PRETEXT TO STOP AND ARRE$T.
However, this assumed offense is neither one classified as a FELONY, nor AGAINST THE
PUBLIC.PEACE (TEX CODE CRIM PROC ART. 14.01 (a); see also, ART. 14.03 (a)(l-S),(b-g)).
Therefore, MUNOZ needs PROBABLE CAUSE for the initial SEARCH, which he says he smells
marijuana; likely story with the exception, of course, he did not recover any marijuana,
take any photographs of marijuana, conduct any testing on suspected marijuana, have any
of the officers on the scene witness and/or testify to the smell or PLAIN VIEW discovery
of said marijuana, nor did he take any steps that one would expect the trained narcotics
officer to take, questioning NOT ONLY THE SEARCH BUT THE ARREST, as NO PROBABLE CAUSE
FOR EITHER PRODUCED.
Finally, MUNOZ never cited nor ticketed RELATOR for a traffic violation·as it was
NO MORE THAN A MERE PRETEXT TO SEARCH AND ARREST WITHOffi' WARRANTS AND/OR PROBABLE. CAUSE.
17
III
76th JUDICIAL DISTRICT COURT OF TITUS OJUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
A. The failure to grant the defense motion to suppress: (continued)
The STANDARD FDR DETERMINING WHETHER PROBABLE CAUSE EXIST 'ID ARRES"ll' WI·'l'BOm'·---~
are at least as stringent as the standards required when a MAGISTRATE determines
PROBABLE CAUSE before ISSUING A WARRANT. WILSON v STATE, 621 S.W.2d 799 (TEX CRIM APP
1981). In order to ESTABLiSH PROBABLE CAUSE TO ARREST the officer MOST demonstrate that
he had enough information to warrant a man of reasonable caution in believing that a
FELONY HAD !BEEN COOMri".l'JEED. WILSON, supra.
MERE SUSPICION that a person arrested committed a crime 1s not sufficient to
justify a WARRANTLESS ARREST. GILL v STATE, 134 Tx. Cr. R.363, 115 SW .2d 923 (App 1938).
When an ARREST IS MADE ILLEGALLY, evidence discovered pursuant to THAT ARREST IS
NOT ADMISSIBLE AT TRIAL. WILSON, supra at 805.
AN ARREST FOR ONE CRIME IS NOT to be used as A PRETEXT TO SEARCH FOR EVIDENCE OF
ANOTHER. BELL v STATE, 724 S.W.2d 780 (TEX CRIM APP).
\1\Then .M! ARRESII" IS USED AS A PRE'l'EXT. JI:T IS AN IJL,I.Fk:AL ARREST AND EVTIJENICE DI.sa>VERED
AS A. RE.SUlL.T I()IJP' IT MAY Nair BE USED AT TR:n:M.. UNITED STATES v LEFKOWITZ, US , 52 S
-- --
Ct 420, 76 LEd 877 (1932).
T!1is present case is but a 'type and shadow of the· case PIERCE. v STATE:; 32 :SW ··2d
247 (TEX CRIM APP 2000) REVERSED AND REMANDED, EN i3ANC.'. SPEC::U:FtCALLY:· . ·. .- -
Defendant was cohv:Lcted iri' the County Cdinirial Court No. 10 I Dallas County I Marshall
Gandy, JUDGE; of DwL: She appealed. The Dallas County Court of Appeals affirmed, 1999
WL 956301. Defendant filed a PDR~ The Court of Criminal Appeals, Womack, J., held that
trial judges ruling on objection to the illegally obtained evidence was not rendered
moot by guilty verdict from jury that was instructed to disregard illegally obtained
evidence, abbrogating JOHNSON, 855 S.W.2d 578.
The decision of a jury that is not trained in this difficult task is simply not
reliable enough to provide DUE PROCESS OF LAW. Id. at 252.
A- defendant likewise has a right, entirely apart from guilt and innocence, not to
be convicted with illegally obtained evidence. This right is based in part on the 4th
and 14th AMENDMENTS of the UNITED STATES CONSTITUTION, See MAPP v OHIO, 376 U.S. 643, 81
S. Ct. 1684, 6 LEd 2d 1081 (1961), and in part on Art. 38.23, a statute enacted by TEXAS
LEGISLATURE and GOVERNOR in 1925 and reenacted 4 times thereafter. The decision of a
Judge is necessary for a defendant to have·a fair hearing and a reliable determination
of the legality with which evidence was obtained. The jury is given a role to be "a
backup protection against erroneous judicial rulings," that have admitted evidence,
18
17'
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
A. The failure to grant the defense motion to suppress: (continued)
not to supplant them. Just as the task of determining the. voluntariness of a confession
without being distracted by its reliability is too difficult to be left to the jury
alone, so is the task of determining the legality of the means by which evidence was.
obtained without being distracted by its probative value. Id., at 253.
Unlike this present case, although factually was required under simular circumstance,
precisely; The Courts charge authorized the jury to convict if it found that:
Deputy Miller (or DETEC'J;'IVE MUNOZ) , ''whether acting as an officer or as a person who
was not an officer· ( 'an other person,' in the terms of the statute), had placed the
defendant under arrest without a warrant for an offense that was a felony OR AGAINST
THE PUBLIC PEACE." I d.
"NO OFFENSE COMMITI'ID IN MILLER'S (or DETEC'l'IVE MUNOZ 'S) PRESENSE OR VIEW WAS A
FEI.ONY," and "THE JURY WERE INSTRUCTED "..'HAT TRAFFIC VIOLATIONS WERE NOT OFFENSES AGAINST
THE PUBLIC PEACE, 9J TOE OOI.Y OFFENSE FOR WHICH MILLm (or MUNOZ WAS USE OF 'NO TORN
SIGNAL') LEX::M.LY aJULD HAVE ARRESTED 'nJE APPLICANT WAS DRIVING WHILE IN"'IXICATED (MUNOZ
COULD NOT HAVE LEGALLY ARRESTED RElATOR FOR NOT. USING A TURN SIGNAL, TRAFFIC VIOLATION,
IS NCY.r A FELONY NOR AGAINST THE PUBLIC PEACE, THEREFORE ILLEGAl. / UNJLAWFUI. ARJRES.r). Id.
0
BEFORE HE S".roPPID HER (HIM) 1 MILLER (MUNOZ HAD MERE SUSPICION FROO UNKNOWN .MUS
UNRELIABLE INFORMNrr 1 ASSUMEDLY) HAD "NO EVIDENCE' "'mAT APPLICANT WAS Dn'OXI~Tm- Id.
"If, as the Court of Appeals said, '[b]y its verdict of guilt, thejury found MILLER
(or any other person) LEGALLY STOPPED APPLICANT,' and under the Courts instruction the
STOP COULD HAVE ONLY BEEN LEGAL IF IT WERE FOR DWI (OFFENSE OF FELONY OR AGAINST THE
PUBLIC PEACE), the jury's FINDING MUST HAVE BEEN BASED ON EVIDENCE OF IN'IDXICATION that
MILLER OBTAINED AFlr'ER HE MADE 'HIE STOP. SUCH EVIDENCE axrr.D r«Y..I" JUSTIFY THE S'l'OP." Id.
As in PIERCE, supra, "there was NO PROOF that DEPUTY MILLER (or DETECTIVE MUNOZ)
witnessed a violation of the TRAFFIC LAWS," nor was there PROOF PRESENTED FOR ASSUMED
PROBABLE CAUSE TO SEARCH OR ARREST WITHOUT WARRANT (TEX CODE CRH1 PROC ART 14.01), and
RELATOR AT VERY MINIMAL WAS ENTITLED TO A SIMILAR CHARGE AND/OR REVERSAL AND REMAND.
THE STOP, hereto in present case, HAS NOT BEEN JUSTIFIED, AS NO PROOF PRESENTED FOR:
TRAFFIC VIOLATION (i.e. TRAFFIC TICKET, CITATION, VIDEO OF VIOLATION, NOTHING); or
PROBABLE CAUSEand had there been .PROBABLE CAUSE, tDT JUST UNSUPPORTED ASSERTIONS OR
BELIEFS, the OFFICER'S MUNOZ AND PORTER CLEARLY WOULD HAVE IMMEDIATELY WENT BEFORE A
MAGISTRATE TO LAWFULLY OBTAIN A WARRANT FOR ARREST AND/OR SEARCH, HOWEVER, IN NOT DOING
19
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
A. The failure to grant the defense motion to suppress: (continued)
SO STRONGLY SUGGEST THEY WERE OUT TO MAKE AN ARREST AND/OR SEARCH AND SEIZURE through
the ANONYMOUS UNKNOWN UNRELIABLE INFORMANT BY "ANY MEANS NECESSARY WITBOUI' SAID WARRANTS,
'lD ARREST, SEARCH, AND/OR SEIZE, THROUGH UNCORROBORATED HEARSAY MADE BY AN ASSUMED
ANONYIDUS INFORMANT. n
Furthermore, the UNITED STATES SUPREME COURT, in ILLINOIS v GATES, 462 U.S. 213, 76
LEd 2d 527, 103 S. Ct. 2317, reh. den. (US) 77 LEd 2d 1453, 104 S. Ct. 103, consistently
recognized the value for corroboration of detail OF AN INFORMANT'S TIP BY INDEPENDENT
POLICE WORK. Id., at 530.
In JONES v UNITED STATES, 362 U.S., at 269, 4 L. Ed. 2d 679, 80 S. Ct. 725, 78 A.L.R. 2d 233,
they held "that an affidavit relying on hearsay 'is not to be deemed insufficient on
that score, SO LONG AS a substantial basis for crediting the hearsay is presented.'"
They "went on to say that EVEN Ml\IUNG A WARRANTLESS ARREST AN OFFICER 'MAY RELY UPON
INFORMATION RECEIVED THROUGH AN INFORMANT, RATHER THAN UPON DIRECT OBSERVATIONS, SO
LONG AS 'HIE ~ANT 1 S STATEMENT IS REASONABLY CORROBORATED BY OTHER MATI'ERS WI'l'HIN
OFFICERS KtUWLEDGE,'n Ibid, Likewise,. they "recognized the probative value of corrobor-
ative efforts of police officials in AGUILAR- the source of the '2 - pronge test' -
by observing that IF THE POLICE HAD MADE SOME EFFORT TO camQBORATE 'THE :INFORMANTS
REPORT AT ISSUE, ' AN ENTIRELY DIFFERENT CASE' WOULD HAVE BEEN PRESENTED. AGUILAR, 378
U.S., at 109. n. 1, 12 L. Ed. 2d 723, 84 S. Ct. 1509." GATES, SUPRA, at 550 -551, Id.
"Yet, such tips, particularly when supplemented by INDEPENDENT POLICE INVESTIGATION,
frequently contribute to the solution of otherwise 'perfect crimes.' While a conscientious
assessment of the BASJCS FCR CREDITING SUCH TIPS JCS ~IRED BY THE FOURTII ~, !
STANDARD '!HAT LEAVES VIRTUALLY 00 PLACE FOR ANONYMOUS CITIZEN INF'ORMH'WTS IS NOT." GATES,
supra, at 548.
The UNITED STATES SUPREME COURT has repeatedly held THAT UNSUPPORTED ASSERTIONS OR
BELIEF OF AN OFFICER DJES NOT SATISFY THE PROBABLE CAUSE REQUIREMENT. GATES; supra, at
570- 571 (citings omitted).
They further state, In order to emphasize the magistrate's role as an .independent
arbiter of PROBABLE CAUSE and to ENSURE THAT SEARCHES AND SEIZURES ARE NOT EFFECTED ON
LESS THAN PROBABLE CAUSE, THE COURT HAS INSISTED THAT POLICE OFFICERS PROVIDE
."'JAGISTRATES WITH THE UNDERLYING FACTS AND CIRCUMSTANCES THAT SUPPORT THE OFFICERS
CONCLUSIONS. In NATHANSON v UNITED STATES, 290 U.S. 41, 78 LEd 159, 54 S. Ct. 11 (1933),
20
2.J
III
·76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
A. The failure to grant the defense motion to supress: (continued)
The COURT held·INVALID THE SEARCH WARRANT that was BASED ON A CUSTOMS'AGENT'S "MERE
AFFIRMATION OF SUSPICION' AND BELIEF WITHOUT ANY STATEMENT OF ADEQUATE SUPPORTING FACTS,"
Id., at 46, 78 L. Ed. 159, 54 S Ct ll. THE COURT STATED: [U]NDER THE FOUR'IB A!MIENDMENT,
AN OFFICER MAY NOT PROPERLY ISSUE A WARRANT TO SEARCH A PRIVATE DWELLING UNLESS HE CAN
FIND PROBABLE CAUSE THEREFOR FROM FACTS ~oR CIRCIJMSTANCES PRESENTED TO HIM UNDER OATH
OR AFFIRMATION'. MERE AFFIRMN\TION OF BELIEF OR SUSPICION' IS NOT ENOUGH." GATES, supra,
Id., at 572- 573.
"In GIORDENELLO v UNITED STATES, 357 U.S. 480, 486, 2 L. Ed. 2d 1503, 78 S. Ct. 1245
(1958), the Court reviewed an ARREST WARRANT issued under the FEDERAL RULE CRIMINAL
PROCEDURE based on A COMPLAINT SWORN TO BY A FEDERAL BUREAU OF NARCOTICS AGENT. Id., at
481, 2 L. Ed. 2d 1503, 78 S. Ct. 1245. BASED ON THE AGENT'S TESTIMONY AT THE SUPPRESSION
HEARING, THE COURT NOTED THAT 'UNTIL THE WARRANT WAS ISSUED ••• [THE AGENT'S] SUSPICION
OF PETITIONERS GUILT DERIVED ENTIRELY FROM INFORMATION GIVEN HIM BY LAW ENFORCEMENT
OFFICERS AND OTHER PERSONS IN HOUSTON, NONE OF WHOM EITHER APPEARED BEFORE THE
COMMISSIONER OR SUBMITTED AFFIDAVITS.' Id., at 485, 2 LEd 1503, 78 S. Ct. 1245. The
COURT FOUND IT UNNECESSARY TO DECIDE WHETHER A WARRANT. COULD BE BASED SOLEY ON' HEARSAY
INFORMATION, FOR THE COMPLAINT WAS 'DEFECTIVE IN NOT PROVIDING A SUFFICIENT BASIS UPON
WHICH A FINDING OF PROBABLE CAUSE COULD BE MADE.' Ibid. IN PARTICULAR, THE COMPLAINT
CONTAINED ID AFFIRMITIVE AI.LEk:ATION' THAT THE AGENT SPOKE WITH PERSONAL KNOWLEDGE NOR
DID IT INDICATE ANY SOURCES FOR THE AGENT'S a>NCLUSION. Id. at 486, 2 L. Ed. 2d 1503, 78
S. Ct. 1245. The COURT EXPRESSLY REJECTED THE ARGUMENT that these deficiencies COULD BE
CURED BY 'the COMMISSIONER'S RELIANCE UPON PRESUMPTION THAT THE COMPLAINT WAS MADE ON
PERSONAL KIDWLEDGE OF THE COMPLAINING OFFICER.' Ibid. GATES, supra, Id.
"As noted, the COURT DID NOT DECIDE THE HEARSAY QUESTION LURKING IN GIORDENELLO.
The USE OF HEARSAY TO SUPPORT THE ISSUANCE OF A WARRANT PRESENTS SPECIAL PROBLEMS
BECAUSE INFORMANTS, UNLIKE POLICE OFFICERS, ARE NOT REGARDED AS PRESUMPTIVELY RELIABLE
OR HONEST. Moreover, the basis for an informants conclusions is not always clear from
an affidavit that merely reports those conclusions. If the OONCLUSORY ALLEGATIONS OF A
POLICE OFFICER ARE INSUFFICIE!NIT TO SUPPORT A FINDING OF PROBABLE CAUSE, SUREJL,Y THE
CONCLUSORY ALLEk:ATIONS OF AN DDFORMANT SHOULD A :FORTIORI BE INSUFFICIENT. GATES, Id.
21
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
A. The failure to grant the defense motion to suppress: (conclusion)
The aforementioned in mind, the RELATOR CONCLUDES:
These are the LEGAL STANDARDS by which a COURT OF. LAW is to abide in determining
LAWFUL ARREST, SEARCHES, AND SEIZURES for admissibility of evidence, anything less is
0
AN ABUSE OF DISCRE'!'ION BY THE ffiURT, WHICB PRECISELY IS WHAT THE 76th .JUDICIAL DISTRICT
COURT HAS BEEN ALWWED TO DO. II
For the reasons stated herein, and to follow, RELATOR should be ACQUITTED/ ACTUAL
INNOCENCE IMPOSED AS THE EVIDENCE DOES NOT SUPPORT THE COMMISSION OF A CRIME BY RELATOR.
B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of
RE-LITIGATED TRIAL EVIDENCE:
A MOTION TO SUPPRESS can be RE-LITIGATED and TRIAL EVIDENCE used to review the
trial court's pre-trial ruling, RACHAL v STATE,· 917 S.W.2d 799, 809 (TEX CRIM APP 1996).
When the LEGALITY OF THE SEIZUR.E is relitigated at trial, HGVEVER, consideration of
relevant testimony is appropriate in the COURT OF APPEALS REVIEW. Id. In this case,
the issue was relitigated at trial and RELATOR REQUESTED THE TRIAL COURT TO RECONSIDER
ITS PRIOR RULING.
In BLACK v STATE, 362 WS 3d 626 (TEX CRIM APP 2012) the issue is detailed as follows:
When APPELLATE COURTS are asked to determine whether the TRIAL COURT ERRED IN OVERRULING
a pre-trial MOTION TO SUPPRESS the general rule is that the APPELLATE COURT considers
only evidence adduced at hearing on the motion and does not resort to testimony
subsequently elicited at trial because the ruling in issue was n;)t based on the latter.
BUT where the ground of error complains of the admission of the evidence at trial, and
the issue has been consensually relitiga1;.ed by the parties ?uring tdal on the·merits,
consideration of the relevant trial testimony is appropriate. (See, APPELLANTS BRIEF,
at C. IT'R!AL TESTIMONY, pg. 13, ·"Also, the State was once again allowed to place the
alleged WRITI'EN STATEME!Nrn' of the appellant AND EVIDENCE DESPITE DEFENSE COUNSEL'S
OBJECTION (HEARSAY);~ ... (RR V3, P 23, 24-25); NOW SEE, APPELLEE'S SUPPLEMENTAL BRIEF ON
REMAND, ARGUMENT, ISSUE l, pg. 7 of 12, "Subsequently, the State offered as, STATJE:'S
EXHIBIT 2 THE mNTROLLED SUBSTANCE, the subject of Robinson's objection in his motion
to suppress." (RR V 3, P 110, L 22 - P 112, L 8); NOW APPELLANT.'S BRIEF, SUPAA, pg. 13,
0
THE ENVEWPE in which the SUSPECTED COCAINE WAS PLACED (STATE'S EXHIBIT .:t)and a DVD
(STATE'S EXHIBIT 3) were ALSO ADMITTED, without objection. Ibid. at 28-29."). CLEAR
OBJECTION TO WRITTEN STATEMENI' MID EVIDENCE SOME 87 PAGES PRIOR TO APPELLEE'S CLAIM OF
nNO OBJECTION" WHICH WAS ENTERED AT CHAIN OF ClJSTODY TES'.IrTIUNY. SJI'ATE 'S EXHIBIT 2 THE
ENVELOPE.
22
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of
RE-LITIGATED TRIAL EVIDENCE: (continued)
PRECISELY, (See, APPELLANT'S BRIEF, at C. TRIAL TESTIMONY, pg. 16) STATING:
"The following witness was Detective Ray YokeL A CHAIN OF CUSTODY wrrNESS, Ibid.
at 105. (This is RR V 3, P 105)
"The next witness was Karen Shumate, A Texas Department of Public Safety Crime Lab
employee WHO TESTIFIED ABOUT THE NATURE OF THE CONTRABAND. Ibid. at 109 (This is RR V 3,
P 109). SHE TESTIFIED THAT THE CONTRABAND WEIGHED 294.64 ~-Ibid. at 112 (This is RR V
3, p 112) • II
TO THIS PRECISE TESTIK>NY DEFENSE COUNSEL HAD "NO OBJEcriON 1" AS STATED BY DEFENSE
BY WRITTEN BRIEF (See, APPELLANT'S BRIEF, at C. TRIAL TESTIMONY, pg. 13, SPECIFYING
"O~TION TO 'WRITTEN srATEMENT AND EVIDENCE; •" located at RR v 3, P 23, 24-25).
--- --
APPELI:..ANT 'S BRIEF, WRITTEN BY APPELLATE COUNSEL CLEARLY REVFALS THE STATE'S
MISCHARACTERIZATION FOR "NO OBJECTION, n AS CHARACTERIZED IN APPELI..ANT 'S BRIEF "STATE'S
EXHIBIT 2" IS "THE ENVELOPE." (See, RR V 3, P 23, 24-25; 28-29; and, 105-112).
BLACK, supra, specifies, " ... where the ground of error 'COMPLAINS OF THE ADMISSION
OF EVIDENCE AT TRIAL, AND THE ISSUE HAS BEEN CONSENSUALLY RELITIGATED BY THE PARTIES
DURING TRIAL ON THE MERITS, CDNSJ:DERATION OF THE RELEVANT TRIAL TES'TIMONY IS APPROPRIATE.'"
IT IS CLEARLY ESTABLISHED IN BRIEFS AND OPINIONS OF THE COURT'S THERE WAS A
CONSENSUAL RELITIGATION IN THE PRESENT CASE. TRIAL COURT ABUSE OF DISCRETION ?
BLACK, supra continues, HAD THE TRIAL COURT NOT ABUSED ITS DISCRETION; The procedure
generally distills to the defendant's choice because the admissibility of an arrest,
search, confession, and the like, are not material issues on which the State bears the
burden of proof at trial - UNLESS RAISED BY THE DEFENDANT. THEREFORE, ANY ATTEMPT BY
THE STATE ID FIRST INTER.JECT EVIDENCE RELEVANT ONLY TO SUCH ISSUES MAY BE FOILED BY A
PROPER OBJECTION BY DEFENSE.(See, APPELLANT'S BRIEF, at pg 13, RR V 3, P 23, 24-25).
BUT IF SI'ATE RAISES THE ISSUE AT TRIAL EI'IHER WITHOUT OBJECTION OR WITH SUBSEXJUEN'T.
PARTICIPATION IN THE ~y BY THE DEFENSE 1 THE DEFENDANT HAS MHIDE AN ELECTION TO
RIDPEN THE EVIDENCE. "DEFENSE MADE THIS SUBSEQum.r' PARTICIPATION AND ELECTED 'ID REOPEN
THE EVIDENCE."
In determining whether a trial court's decision to deny a MOTION TO SUPPRESS is
supported by the record, the APPELLATE COURT generally considers only evidence adduced
9t the SUPPRESSION HEARING because the ruling was based on it rather than evidence
introduced later. fJO"lEVER, this GFBERAL RULE is INAPPLICABLE WHERE THE SUPPRESSION
23
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of
RE-LITIGATED TRIAL EVIDENCE: (continued)
ISSUE HAS BEEN CONSENSUALLY RELITIGATED BY THE PARTIES DURING TRIAL ON THE MERITS.
Where the STATE raises the issue at trial EITHER WITHOUT OBJECTION OR WITH SUBSEQUENT
PARTICIPATION in the inquiry by the defense, THE DEFENDANT HAS MADE AN ELECTION TO
REOPEN THE EVIDENCE, and CX>NSIDERATION OF THE RELEVANT TRIAL TESTJ]'>I)NY IS APPROPRIATE
IN THE APPELLATE COURT'S REVIEW. BLACK, supra.
The STATE may argue that the general rule identified in HARDESTY v STATE and RACHAL
v STATE speaks only to a limitation on what is available for APPELLATE REVIEW of a
trial court's ultimate ruling on a pre-trial SUPPRESSION MOTION, and not the trial
court's own authority to reopen the SUPPRESSION HEARING itself TO EXPAND THE RECORD.
Evidence adduced before the fact finder at trial may not be taken into account in an
APPELLATE REVIEW of the propriety of the trial court's ruling on a MOTION TO SUPPRESS,
the STATE could readily concede, absent consent of the parties. BUT that does not mean
that the trial court lacked authority to later REOPEN THE SUPPRESSION HEARING, outside
the jury's presence, to ENTERTAIN ADDITIONAL EVIDENCE RELEVANT TO A REVISITATION OF THE
CORRECTNESSOF TIS INITIAL RULING. AND IF the trial court exercises its authority (not
doing so in present case was an ABUSE OF AUTHORITY)to permit additional evidence in
the :context of A RENEWED SUPPRESSION HEARING, the REVIEWING COURT (IN THIS PRESENT CASE
SHOULDHAVE CONSIDERED) MUST CONSIDER that additional evidence in determining the
propriety of the trial court's ULTIMATE RULING on the MOTION TO SUPPRESS. Therefore,
the STATE could argue, this was the essence of the holding in MONTALVO v STATE. BLACK,
supra.
There is found no LEGISLATIVE INTENT that the STATUTORY AVAILABILITY of an
INTERLOCUTORY APPEAL should have foreclosed the RELATOR'S ATTORNEY form opting to seek
RECONSIDERATION at the trial court level on a RULING THAT THE RELATOR'S ATTORNEYREGARDED
AS MISTAKEN. HOWEVER, FAILING TO DO SO IS INEFFECTIVE ASSISTANCE. BLACK, supra.
It has been held, if anything, TEX CODE CRIM APP (TCCP, herein) Art. 36.02 should
be interpreted to BE BROAD ENOUGH to PERMIT THE TRIAL COURT within its DISCRETION TO
REOPEN A SUPPRESSION HEARING if it APPEARS NECESSARY TO THE DUE ADMINISTRATION OF
JUSTICE (AS IT WAS WITH PERJURED TESTIMONY OF DETECTIVE MUNOZ, BY INCONSISTENT STATE-
MENTS) . After all a MOTION TO SUPPRESS IS NOTHING MORE THAN A SPECIALIZED OBJECTION TO
EVIDENCE, which may be - but is not required to be - resolved, under TCCP ANN. Art.
28.01 § 1 (6) prior to trial. This applicability of TCCP ANN. Art. 36.02 should not
24
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of
RE-LITIGATED TRIAL EVIDENCE: (continued)
rest upon whether the trial court opts to conduct a pre-trial hearing on the MOTION TO
SUPPRESS or instead to carry the MOTION over for trial. Ohter jurisdictions have held
that the trial court has the DISCRETIONARY POWER TO RECONSIDER RULINGS ON SUPPRESSION
HEARINGS, even in the absense of a statute such as Art. 36.02. BLACK, supra.
In essence, a pre-trial MOTION TO SUPPRESS EVIDENCE is NOTHING MORE THAN A SPECIALIZED
OBJECTION to THE ADMISSABILITY OF THAT EVIDENCE. A PRE-TRIAL RULING on such A MOTION
IS INTERLOCUTORY IN NATURE. AS SUCH, IT SHOQLD BE REGARDED AS JUST AS MUCH THE SUIDECT
OF RECONSIDERATION AND REVISION AS ANY OTHER RULING ON THE ADMISSABILITY OF EVIDENCE
UNDER TEX RULES EVIDENCE (TRE) 104, which a trila court may revisit at its discretion
at any time during the course of a trial. To the extent that TCCP ANN Art. 36.02 may
be said to circumscribe a trial court's authority to reopen a hearing on a MOTION TO
SUPPRESS, it should be construed according to its terms. By this reckoning, Art. 36.02
restricts the trial court's discretion to reopen a hearing on a MOTION TO SUPPRESS ONLY
TO THE EXTENT that it PROHIBITS FURTHER EVIDENCE OF ANY KIND ONCE the parties have
concluded their arguments of the cause - that is to say the trial its self. This
conclusion is bolstered by case law from other jurisdictions that have concluded that
a trial court retains th~ authority to reopen a SUPPRESSION HEARING AND REVISIT ITS
PRE-TRIAL RULING thereon during the course of trial. BLACK, supra.
IN RELATOR'S CASE when the STATE RESTED. "The defense made a motion for instructed
verdict that was denied. Ibid. at (RR V 3, P) 115. The basis for the motion was that
the EVIDENCE MERELY ESTABLISHED THE DEFENDANT'S PRESENCE, BUT NOT OWNERSHIP OR CONTROL
OF THE CONTRABAND. Ibid. (RR V 3, P) 116; see also, APPELLANT'S BRIEF, at C. TRIAL
TESTIMONY, pg. 16.
Indeed, TRE 104 (b) clearly contemplates that the trial court MAY BE REQUIRED TO
REVISIT THE QUESTION OF ADMISSABILITY:Of CERTAIN EVIDENCE long after it has DECLARED
THE EVIDENCE AT LEAST CONTINGENTLY ADMISSABLE. The court has seen NO REASON why a trial
court SHOULD LACK THEAUTHORITY likewise to revisit a preliminary determination with
respect to THE ADMISSABILITY OF EVIDENCE UNDER RULE 104 (a), IF REQUESTED TO DO SO FOR
SUFFICIENT CAUSE BY ONE OF THE PARTIES (See IN RELATOR'S CASE, supra) -at its discretion,
of course, and subject to TCCP ANN Art 36.02 (ABUSE OF DISCRETION IN RELATOR'S CASE?).
BLACK, supra.
25
26
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of
RE-LITIGATED TRIAL EVIDENCE: (continued)
Case Law Holds: INTER ALIA, The trial court has discretion to revisit
INTERLOCULATORY PRE-TRIAL RULING on MOTION TO SUPPRESS. The fact that the STATE could
appeal a pre-trial order granting A MOTION TO SUPPRESS did not deprive the trial court
of authority to reopen SUPPRESSION HEARING AND CHANGE ITS RULING. The trial court has
discretion to reopen hearing on MOTION TO SUPPRESS regardless of whether THE EVIDENCE
IS NEWLY DISOOVERED OR MERELY OMITTED AT THE INITIAL PROCEEDING. BLACK, supra. ,
A trial court's decision to SUPPRESS EVIDENCE is an INTERLOCUTORY ORDER AND MAY BE
RECONSIDERED by the trial court's OWN MOTION or UPON MOTION BY THE PARTIES. A trial
court's discretionary powers are continuos and it may RECONSIDER EARLIER RULING ON
MOTION TO SUPPRESS. A MOTION TO RECONSIDER OR REOPEN PROOF at SUPPRESSION HEARING is a
matter of trial court's discretion. THE TRIAL COURT HAS BROAD DISCRETION IN DECIDING
WHETHER TO "REOPEN" HEARING ON PRE-TRIAL MOTION TO SUPPRESS. A pre--trial RULING ON
MOTION TO SUPPRESS IS INTERLOCUTORY AND TRIAL COURT HAS INHERENT POWER TO REVISE IT
ANYTIME BEFORE FINAL JUDGEMENT IN THE CASE. THE TRIAL COURT HAS BROAD DISCRETION TO
REVISIT PRE-TRIAL RULINGS ON MOTIONS '10 SUPPRESS "AND SHOULD DO SO LffiERALLY." BLACK,
supra.
The COURT OF CRIMINAL APPEALS holding that a trial court has the authority to reopen
the hearing on a MOTION TO SUPPRESS EVIDNECE even after trial has begun is easily
harmonized with HARDESTY v STATE and RACHAL v STATE. Neither HARDESTY nor RACHAL
purported to decide the trial courts authority, vel non, to reopen a SUPPRESSION HEARING
during the course of a trial; THEY MERELY SET OUT A GENERAL RULE THAT GOVERNS APPELLATE
REVIEW OF RULINGS ON PRE-'-TRIAL MOTIONS '10 SUPPRESS, WITH AN. EXCEPTION THAT BROADENS THE
PERMISSABLE SCOPE OF THAT APPELLATE REVIEW UNDER CIRCUMSTANCES IN WHICH FURTHER EVIDENCE
IS ADMITTED DURING THE COURSE OF TRIAL, AT THE WILL OF THE PARTIES, THAT PERTAINS '10
THE PROPRIETYOF THE EARLIER RULING. Neither the GENERAL RULE NOR THE EXCEPTION to it
even addresses, MUCH PRECLUDES, a triBLACK, supra.
THE GENERAL RULE in cases in which the TRIAL COURT IS NEVER ASKED, OR IS ASKED BUT
DECLINES, TO. EXERCISE ITS DISCRETIONARY AUTHORITY TO REOPEN THE SUPPRESSIOO HEARIN;,
APPELLATE REVIEW OF ITS RULING ON THE MOTION TO SUPPRESS IS ORDINARILY LIMITED TO THAT
EVIDENCE PRESENTED AT 'rr-JE PRE-TRIAL HEARING - the evidence that was before the court
26
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
B. The refusal to revisit the pre-trial ruling on MOTION TO SUPPRESS in light of
RE-LITIGATED TRIAL EVIDENCE: (continued)
at the time of its dicision. THE EXCEPTION: If the parties consensually broach the
suppression issue again before the fact-finder at trial in gauging the propriety of the
trial court's ruling on the MOTION TO SUPPRESS. FINALLY, the COROLLARY RULE: If at any
point before the conclusion of final arguments at trial, the trial court should
exercise its discretionary authority to reopen the SUPPRESSION HEARING, THE REVIEWING
COURT SHOOLD ALSO CONSIDER WHATEVER ADDITIONAL EVIDENCE MAY ·BE SPREAD ON THE RECORD
BEARING ON THE PROPRIE'l'Y OF THE TRIAL COURT'S ULTIMATE RULING ON THE MOTION TO SUPPRESS.
BLACK, supra.
Accordingly, it is clear from the record of; the trial court; court of appeals; and,
the court of criminal appeals, the parties in RELATOR'S case CONSENSUALLY BROACHED THE
SUPPRESSION ISSUE AGAIN BEFOR.E THE FACT-FINDER AT TRIAL IN GAUGING THE PROPRIETY OF
THE TRIAL COURT'S RULING. Therefore, based on the record and the law specified herein
the trial court has clearly abused its discretion, as well as the court of appeals in
its present ruling issuing a mandate to affirm judgement of the trial court for these
same reasons and to follow.
For the reasons stated herein, .and to follow, RELATOR should be ACQUITTED, ACTUAL
INNOCENCE IMPOSED AS THE EVIDENCE DOES NOT SUPPORT THE COMMISSION OF A CRIME BY RELATOR,
NOR DID DEFENSE COUNSEL RENDER
.:·::=·
A "NO OBJECTION" TO THE "COOTROLLED SUBSTANCE," AS
MISCHARACTERIZ:ED IN APPELLE 'S SUPPLEMENTAL BRIEF ON REMAND ( pg 7 of 12, at RR V 3.' P
1101 L 22 - P 112, L 10) 1 THE "NO OBJECTION" WAS ENTERED UPON THE "STATE'S EXHIBIT 2"
THE ENVELOPE IN A "CHAIN OF CUSI'ODY" TESTIMONY BY DETECTIVE RAY YOKEL AND KAREN SHUMATE,
WHO ALSO-TESTIFIED ABOUT THE NATURE OF THE CONTRABAND AND ITS WEIGHT (.See herein at pg.
23, at B. PRECISELYLsee also APPELLANT'S BRIEF, at C. TRIAL TESTIMONY, pg. 13, aJ!ll(],
herein at pg. \. 22, SPECIFYING srATE'S "EXHIBIT 2" WAS/IS ENTERED AS "THE ENVELOPE", AND
THE "NO OBJECTION" IS TO THE TESTIMONY OF THE "CHAIN OF CUSTODY" A DISCUSSION OF THE
PROCEDURES FOR SEALING "THE ENVELOPE" AND RECEIVING ~'THE ENVELOPE", STATE'S EXHIBIT 2).
Therefore, RELATOR DID AND HAS PRESERVED HIS FIRST POINT OF ERROR ALLEGING THE
TRIAL COURT ERRED IN FAILING TO SUPPRESS ALL EVIDENCE OBTAINED DURING AND SUBSEQUENT
TO AN ILLEGAL TRAFFIC STOP.
WITH FURTHER REASONING TO FOLLOW.
27
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
C. Refusal to comply with TEXAS CODE CRIMINAL PROCEDURE (TCCP) Art. 38.22 in ABATED
FINDINGS OF FACT AND CONCLUSION OF LAW, and the ERROR IS NOT MOOT, NOR AS SUCH
WAS IT TO BE OVERRULED BY THE SIXTH COURT OF APPEALS:
The record reveals the trial court refused to enter a FINDINGS OF FACT AND CONCLUSION
OF LAW, nor. is RELATOR aware from the record as ABATED IN THE COURT OF APPEALS, pursuant
to Art. 38.22 TCCP, with; A. STATEMENT OF FACTS; B. ARGUMENT AND DISCUSSION; for said
violation presented in APPELLANT'S BRIEF, at pgs. 28- 30, specifying Art. 38:22TCCP
"requires the trial court to make "WRITTEN FINDINGS OF FACTS AND CONCLUSIONS OF LAW"
were a question is raised as to the voluntariness of the statement of accused. Ibid.
at sec. 6. 'The court MUST enter an order stating its conclusion as to whether or not
the statement was voluntarily made, along with specific FINDINGS OF FACT upon which
THE CONCLUSION WAS BASED, which ORDER SHALL BE FILED AMONG THE PAPERS OF THE CAUSE. 1
Ibid. Such was not done in this case." Nor was it done in the ABATED WRITTEN FINDINGS
OF FACTS· AND CONCLUSIONS OF LAW OF THE RECORD, NOR HAS IT BEEN RULED ON OTHER THAN THE
APPELLATE O)UR.T'S FINDING AS "MCX>T." APPELLANT'S BRIEF, supra. (See also, SIXTH COURT OF
APPEALS, ORIGINAL OPINION, NO. 06-09-00225-CR, at pg. 2, F.N. 1, Id.).
FURTHERMORE, AS OPINED IN THE COURT OF CRIMINAL APPEALS (at F.N. 3, slip opin.)
" ... the court of appeals later abated the case to the trial court to enter written
findings of fact and conclusion of law. After remand, the only finding relevant to the
traffic stop stated: '1. The Court FINDS that on August 25, 2008, Timothy Lee Robinson
was stopped by Mt. Pleasant Police Department officers for a traffic violation.' There
were NO SPECIFIC FINDINGS OF FACT relating to the appellant's use of his turn signal
or THE CHARACTER OF THE ROADWAY. The trial court also DID NOT MAKE A CREDffiiLITY
DETERMINATION AS TO MUNOZ 1 S TESTI.foi)NY. Moreover, THERE ·WAS NO SPECIFIC CONCLUSION OF
LAW relating to the underlying question WHETHER MUNOZ HAD THE NECESSARY REASONABLE
SUSPICION TO STOP THE APPELLANT FOR A TRAFFIC VIOLATION." (COURT OF CRIMINAL APPEALS,
SLIP OPINION, PD- 0238 -:ll, at F.N. 3, Id.).
"In a recent opinion in STATE v MENDOZA, we (COURT OF CRIMINAL APPEALS) observed
that, in reviewing a trial court's ruling on a motion to suppress, APPELLATE COURTS
SHOULD NOT HAVE TO 'PRESUME, ASSUME, OR GUESS' WHAT historical facts a trial judge
found IN MAKING HIS OR HERS WRITTEN FINDINGS AND CONCLUSIONS WHEN THOSE FACTUM.
FINDINGS ARE IN365 S.W.3d 666, 671. (Tex Crim App 2012). Id.
Yet this is PRECISELY WHAT THE SIXTH COURT OF APPEALS HAS ACCOMPLISHED.
28
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
D. The ABATED "FINDINGSOF FACT AND CONCLUSION OF LAW" omitting m3.terial facts relevant
to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER
SIMON RAY PORTER questioning the lawfulness of RELATOR'S CONVICTION, PRECISELY:
In a most recent opinion the COURT OF CRIMINAL APPEALS observed that in reviewing
a trial court's ruling on a MOTION TO SUPPRESS, appellate courts should not have to
"PRESUME, ASSUME, OR GUESS" what historical facts a trial judge found in making his
or her WRITTEN FINDINGS AND CONCLUSIONS when those FACTUAL FINDINGS ARE INCOMPLETE OR
AMBIGUOUS. (STATE v MENDOZA, 365 S.W.3d 666, 671 (Tex Crim App 2012); ROBINSON, PO-
0238 - lL ID. at slip opin, f.n. 3)). Then went on to emphasize, "[F]actual findings
are who DID WHAT, WHEN, WHERE, HOW, OR WHY. THEY ALSO :INCLUDE CREDIBILITY DETERMINATIONS.
They do not include legal rulings on 'reasonable suspicion' or 'probable cause'; those
are:re-ga1conclusions subject to de novo review, not deference." (STATE v SHEPARD, 271
S.W.3d 281, 291 (Tex Crim App 2008), Id. at ROBINSON, slip opin f.n. 27).
RELATOR filed a MOTION TO SUPPRESS, prior to trial, any and all evidence stemming
from the PRETEXT TRAFFIC STOP, TO THEREBY, INSTITUTE A CUSTODIAL INTERROGATION OF
RELATOR ON THE BASIS OF A TIP FROM AN UNIDENTIFIED AND UNRELIABLE INFORMANT, WITHOUT
THE USE OF PROCEDURAL SAFEGAURDS EFFECTIVE TO SUCURE THE PRIVILEGE AGAINST SELF -
INCRIMINATION PROVIDED UNDER THE UNITED STATES CCI'lSTITm'ION. MIRANDA v ARIZONA, 384
U.S. 436, 444, 86 S. Ct. 1602, 16 LEd 2d 694 (1966). The holding of MIRANDA is codified
in Art. 38.22 of the TCCP; JONES v STATE 944 S.W.2d 642, 650 n. 11 (Tex Crim App 1996);
APPELLANT'S BRIEF, Id. at pgs. 29- 30; ROBINSON, PD- 0238- 11, slip opin. Id. at 3).
At a pre -trial hearing on the [RELATOR'S] motion, THE ONLY WITNESS WAS DETECTIVE
CESAR MUNOZ OF THE MOUNT PLEASANT POLICE DEPARTMENT, MUNOZ testified, NOTICE THE
STRUCTURE OF THE ANSWER, he observed the vehicle Robinson was driving "FAILED TO MAKE
A------- (WHAT ?) USE THEIR TURN SIGNAL AT THAT TIME WHEN IT TURNED ONTO MARGARET FROM
NINTH." The UNDERLINED IS A PREPARATORY STATEMENT devised between the .DISTRICT ATTORNEY
AND MUNOZ IN AN ATTEMPT TO ADD LEGITIMACY TO AN CJI'HERWISE "UNLAWFUL TRAFFIC STOP, " to -
wit all MUNOZ has to do is :hold to this PREPARATORY STATEMENT AS HIS REASONABLE BELIEF.
(See 6th COURT OF APPEALS, ORIGINAL OPINION, 06-09-00225-CR, Id., at pg. 6).
The MOUNT PLEASANT POLICE DEPARTMENT is SWORN IN TO ,FIRST AND FOREMOST, UPHOLD
THE LAWS AND ORDINANCES OF THE CITY OF MOUNT PLEASANT. Therefore, in order to commit
a TRAFFIC VIOLATION it has to be AGAINST A LAW OR ORDINANCE OF THE CITY OF MOUNT
PLEASANT.
29
.J()
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant
to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER
SIMON RAY PORTER questioning the lawfulness of RELATOR'S CONVICTION, PRECISELY:
MUNOZ described THE INTERSECTION of Ninth and Margaret as follows:
Where the road actually "Ys", there is !'A DEAD END ROAD TO THE LEFT," but it is "A
ROADWAY WITH RESIDENCES ON IT, and THERE'S A ROAD TO THE RIGHT, which MARGARET
CONTINUES ONTO ..... .
FIRST, the ny• being used 1n this instance gives a complete misconception of the
formation of the two streets. IF one is to use a nyn to describe mentally this street
formation, one would be better informed as to this configuration with the use of a
SMALL "y", with NINTH STREET BEING THE SMALL LINE ON YOUR LEFT LOOKING AT THE SMALL>"y',
and MARGARET STREET BEING THE LONG LINE ON YOUR RIGHT LOOKING AT THE SMALL "y"< with
the UPPER PORTION ON THE RIGHT OF THE SMALL "yll<:being THE'DEAD'END''IOMARGARET STREET.
SECaiD, THE DEAD END OF MARGARET (THE RIGHT UPPER PORTION OF THE SMALL "y~) has
ONE HeME WITH A DRIVEWAY (AS YOU MAKE THE LEFT HAND TURN OFF NINTH STREET TO MARGARET) ,
ON THE RIGHT, AND ON THE LEFT THERE IS A RESIDENCE HAVING "NO VEHICULAR ACCESS OTHER THAN
PARKING," AS THIS STUB "OOLY RUNS THE LENGTH OF THESE 'lW) RESIDENCES. r.ars• HAVING A
BARRACADE AT THIS DEAD END.,. "WITH NO THROUGH TRAFFIC."
THIRD, •THE INTERSECTION,• IS A MISNOMER, WHEN A PERSON COMES DOWN NINTH STREET
TOWARD MARGARET STREET, UNLESS YOU WANT TO VISIT ONE OF THE TWO RESIDENCES ON EITHER
SIDE OF THE STUBBED DEAD END TO MARGARET, WHICH ~S LEFT OFF NINTH AS IT CHANGES TO
MARGARETi THE NINTH STREET CHANGES TO MARGARET IN THE CURVE TO THE RIGHT, NO INTERSECTION.
PRECISELY, At the SUPPRESSION HEARING, the defense showed MUNOZ a map, which MUNOZ
described as incorrect. When asked, "[D]oes NINTH STREET 'CURVE IN'IO' MARGARET' DRIVE ?"
MUNOZ RESPONDED, "YES rr DOES, but the way that indicates is incorrect to the actual
way the street is. That's incorrect." (See 6th COURT OF APPEALS, supra, Id., at pg. 9-
lO)(See also, REPORTER'S RECORD, VOLUME 5, EXHIBIT DX- l; APPELLANT BRIEF, pg 22 at 7).
FINALLY, for the best MENTAL PICTURE FOR THE CONFIGURATION OF NINTH AND MARGARET
COMBINING; PUT ON A PAIR OF BOOTS, STAND ON YOUR HEAD, LOOK DOWN AT THE BOOTS ON YOUR
FEET. YOU'LL SEE THE TOP OF THE BOOTS FROM YOUR TOES, ACROSS THE TOP OF YOUR FOOT TO
YOUR ANKLE, THEN UP THE UPPER PART OF THE BOOT TO YOUR KNEES. SEE THAT? O.K .. NOW,
NINTH STREET STARTS AT YOUR TOES AND COMES ACROSS THE TOP OF YOUR FOOT AND AT YOUR
ANKLE IT GOES UP TO YOUR KNEE AS MARGARET DRIVE (STREET). H~, AT YOUR ANKLE.IF
YOU GO TO THE HEAL OF THE BOOT IT DEAD ENDS, AS DOES MARGARET DRIVE, NO INTERSECTION.
30
3!
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant
to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER
SIMON RAY PORTER questionong the lawfulness of RELATOR'S CONVICTION, PRECISELY:
NINTH STREET'S NAME CHANGE 'lU MARGARET DRIVE FR(JIIJ THE DIRECTION [RELATOR) WAS
TRAVELING "IS NO MORE THAN A CURVE IN THE ~''.I'W:J EANE STREET'":, OR "LANED ROADWAY WHICH
IS DIVIDED INTO ... TWO ... CLEARLY MARKED LANES FOR VEHICULAR TRAVEL" AND OOT, " .•• AN AREA
WITHIN WHICH VEHICLES TRAVELING UPON DIFFERENT STREETS AT ANY OTHER ANGEL 'MAY COME
IN CCNFLICT ~ ' " NOT AN INTERSECTIOO IN ACCORDANCE WITH CITY CODES OF MT. PLEASANT, TEXAS,
CODE OF ORDINANCES, SECTION 70.01, NOR UNDER SECTION 71.030 OOES IT ~RE A TURN·
SIGNAL, AND AS SUCH IT IS "NOT A TRAFFIC VIOLATION UNDER SAID MT PLEASANT CITY CODE OF
ORDINANCES." (See APPENDIX, TAB A: CITY CODES OF MT. PLEASANT, TEXAS; CODE OF ORDINANCES,
SECTIONS 70.01 and 71.030)(See also, DEFENSE EXHIBIT 1; and, TAB 2, RELATOR'S SUPPLE-
MENTAL DIAGRAM OF NINTH STREET AND MARGARET DRIVE CONFIGURATION).
At the SUPPRESSION HEARING, MUNOZ, "When asked, Does Ninth Street CURVE ImD
Margaret Drive ? Munoz responded, YES,' IT OOES ••• " THE INCORREC'INESS MUNOZ QUESTIONED
WAS, " ... [b}ecause in [the defense exhibit], East Eighth does not run into Margaret,
and then you've gibt East Ninth, and they run parallel to each other .. ", THIS IS AT •
TRIAL.(See, 6th COURT OF APPEALS, ORIGINAL OPINION, supra, at pq. 10,. Id.).
FURTHERMORE, AT TRIAL, "MUNOZ [chanqed testimony from SUPPRESSION HEARING by]
admittinq East Ninth Street and Margaret Drive MERGE at their INTERSECTION.APPEALS, supra, Id., at pq. 10).
AT TRIAL, LAKESHIA WILLIAMS, "A LICENCED;DRIVER IN THE STATE OF TEXAS", CONFIRMED
THERE ARE ID TRAFFIC SIGNS ••• AT THIS INTERSECTION, " . . . . OR WHAT DETECTIVE MUNOZ
CONSIDERS TO BE THE INTERSECTION OF NINTH AND MARGARET ? ... IT'S JUST A CURVE .... JUST
CURVES AROUND ... NO STOP SIGN OR YIELD SIGN ... " Id. at pg. 11.
If the operator is proceeding straight, or following the direct course of the road,
a signal is not required. The fact that the street name of the road may change is not
necessarily determinative of whether an operator is following the direct course of the
road. It is the course of the road and traffic that are determinative. The Texas
Tranaportation Code OOES NOT RmUIRE~an operator PROCEEDING STRAIGHT THRMAHAFFEY, 316 S.W.3d at 639.
6th COURT OF APPEALS, supra, Id., at 9.
The defense, ... relied upon . the Beaumont Court of Appeals' decision 1n TRAHAN v
STATE, 16 S.W.3d 146, 147 (Tex App- Bea:umont 2000, no pet.), at trial. Similar to
MAHAFFEY, the Beaumont court.held "the code does not equate moving right br left to a
'turn.'" Id. (concluding defendant Nar REQUIRED TO SIGNAL EXIT FROM FREEWAY). [NO
DIFFERENT THAN THE RELATOR'S MOVEMENT FROM NINTH TO MARGARET, "Nai' RmUIRED TO SIGNAL
EXIT FROM NINTH ';J\T THE CURVK·INTOMARG/\RFe' SMALL y EXAMPLE = NINTH/EXIT~·AT SMALL >y,
ENTER INTO MARGARET y< MARGARET LONG SIDE SMALL y, no difference than exiting from
freeway."] The STATE, citing MAHAFFEY, 316 S.W.3d at 643, note[d] "the Court of Criminal
Appeals has approved of [TRAHAN'S reasoning] to a limited extent, not applicable here."
[6th Court of Appeals explains], Other than explaining MAHAFFEY as "holding that a
'MERGE;' ·.IS NOT A 'TURN' THAT REQUIRES A SIGNAL UNDER THE TRANSPORTATION CODE, " THE
STATE [DID] NOT EXPLAIN WHY THE REASONING OF MAHAFFEY IS NOT APPLICABLE. Although the
facts of MAHAFFEY are distinguishable, THE CLARIFICATION OF THE MEANING OF THE TERM
"TURN" IS APPLICABLE ID THE FACTS OF THIS CASE. 6th COURT OF APPEALS, supra, Id., at 8.
As previously suggested, as MOUNT PLEASANT POLICE DEPARTMENT OFFICERS, both CESAR
MUNOZ AND SIMON RAY PORTER, ARE NOT REQUIRED TO. ESTABLISH VIOLATIONS OF THE TEXAS
TRANSPORTATION CODES, HOWEVER, IN ORDER TO ESTABLISH TRAFFIC VIOLATIONS UPON THE STREETS
AND BYwAYS FOR VEHICULAR TRAVEL WITHIN THEIR JURISDICTION THEY ARE ro APPLY THE
ESTABLISHED CITY OODE OF ORDINANCES. NEITHER THEY, THE TRIAL COURT, NOR THE 6th COURT
OF APPEALS have utilized the primary reasoning of these said codes to make the
affirmative findings needed to establish a TRAFFIC VIOLATION. In fact, UNDER MOUNT
PLEASANT CITY CODES AND ORDINANCES §70.01 and §77.030, ROBINSON COMMITTED NO TRAFFIC
VIOLATION AND ANY SUGGESTION TO THE CONTRARY IS AN ABSOLUTE TRAVESTY OF JUSTICE, ABUSE
OF DISCRETION, PROSECUTORIAL MISCONDUCT, AND·IN DIRECT VIOLATION OF THE CODE OF ETHICS
THIS SYSTEM AS OFFICERS OF THE COURTS ARE SWORN TO UPHOLD ESPECIALLY IN SIGHT OF THE
FACTS AS REVEALED ABOVE AND THE FOLLOWING, SPECIFICALLY:
The definition of "AN INTERSECTION" the:MOUNT PLEASANT CITY ORDINANCE §70.01 is;
" ... the area within which vehicles traveling upon different streets joining at any
other angel may come in conflict." THERE IS NO CONFLICT IN A 'MERGE' OR A 'CURVE.'
32
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS-
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant
'
to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER
SIMON RAY PORTER questioning the lawfulness of RELATOR'S CONVICTION, PRECISELY:
Furthermore, §71.030 of the MOUNT PLEASANT CITY CODES OF ORDINANCES SPECIFIES:
STOPPING AND TURN SIGNALS. (A) General. (IN PERTINENT PARTS)
(1) When ANY OTHER TRAFFIC MAY BE AFFECTED BY SUCH MOVEMENT, no person shall turn any
vehicle without giving a signal of his other intention to turn right or left ....
(4) The signal lamps provided for in this section shall be used to indicate an intention
to turn, change lanes, or start from a parked position ..•..•..
The aforementioned are to be considered the defining factors for a conclusion of a
traffic violation within the jurisdiction of the MOUNT PLEASANT DETECTIVE CESAR MUNOZ
AND POLICE OFFICER SIMON RAY PORTER, and the defining factor is "THE CONFLICT WITH TRAFFIC,
AND/OR ANY O'I'HER TRAFFIC AFFECTED BY SUCH MOVEMENT, " TO IMPLY A VIOLATION OF THE CITY
CODE OF ORDINANCES AS A "TRAFFIC VIOLATION." (See, CITY CODES OF MT. PLEASANT, TEXAS,
CODE OF ORDINANCES, SECTION 70.01 and 71.030, at APPENDIX TAB A)(See also, TAB 2,
RELATOR'S SUPPLEMENTAL DIAGRAM OF NINTH STREET AND MARGARET DRIVE CONFIGURATION).
The record contains evidence that at the SUPPRESSION HEARING, the only witness to
testify, DETECTIVE CESAR MUNOZ, TESTIFIED BO'I'H, NINTH STREET AND MARGARET DRIVE "MERGE,"
and LATER TESTIFIES, "WHEN ASKED, 'DOES NINTH STREET CURVE IN'ID MARGARET DRIVE ?'-
MUNOZ RESPONDED, 'YES IT DOES ••• '" ISN'T THAT PERJURY? OR HOW ABOUT NOW WHEN MUNOZ
AT TRIAL, •• "ADMTI'TED EAST NINTH S'lREET AND MARGARET DRIVE MERGE AT THEIR INTERSECTION. "
Either way MUNOZ, ON THE RECORD ADMITS 'IWICE THE 'IWO STREETS :"MERGEn AND ONCE THEY
"-CURVE" INTO EACH arHER, WITH THE TESTIMONY OF LAKESHIA WILLIAMS TESIFYING THE ':11«)
STREETS "CURVE" INTO EACH OTHER, THEREFORE, " •• THE OFFICER'S INCORRECT UNDERSTANDING
OF THE LAW DOES OOT GIVE RISE TO A REASONABLE SUSPICION"," as the record and facts of
the record reveal. Especially,based on the STATE PROSECUTOR'S, STATE'S PETITION FOR
DISCRETIONARY REVIEW, CONFIRMS THE MATTER, SPECIFICALLY, at pg. 8:
"Based on the 6th court's recitation of the trial record, the jury was presented
with NO DISPUTED EVIDENCE as to how the two roads at issue physically meet. At trial,
OFFICER MUNOZ AGREED THAT NINTH AND MARGARET MERGE AT THEIR INTERSECTION". AND THAT THERE
ARE NO TRAFFIC SIGNS OF ANY KIND AT THE INTERSECTION. Slip Op. at 10. The defense
introduced a map SHCMING THAT NINTH AND MARGARET ARE "INDISTINGUISHABLE FRCM lA SINGLE
ROAD EXCEPT FOR THE ASSIGNED NAMES." Slip Op. at 16. [RELATOR'S] girlfriend confirmed
that N:n:NTH CURVES INTO MARGARET WITHOUT A STOP [MERGE]OR YIELD SIGN. Slip Op. at 11.
33
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant
to the testimony given by MOUNT PLEASANr DETECTIVE CESAR MUNOZ AND POLICE OFFICER
SIMON RAY PORTER questionong the lawfulness of RELATOR'S CONVICTION, PRECISELY:
In short, THE PHYSICAL DESCRIPT.WN OF H~ NINTH AND MARGARET MEET WAS DEPICTED IN A
MAP THAT WAS CCEROBORATED BY [BO'l'H] AT LEAST ONE wriNESS[ES] AND CCNI'RADICTED BY
NONE. Id. (See also, 6th COURT OF APPEALS, ORIGINAL ANSWER, Id. at pg. 6, supra).
As residents of MOUNT PLEASANT, TEXAS, a reasonable person would tend to believe
it to be quite within the realm of possibility that the; HONORABLE JIMMY LEON WHITE,
TRIAL JUDGE IN THIS CASE; HONORABLE CHARLES C. BAILEY, DISTRICT ATTORNEY, TRIAL COUNSEL
FOR APPELLEE; and, HONORABLE SAM W. RUSSELL, TRIAL COUNSEL FOR [RELATOR]; as either,
residents or merchants, ARE AWARE OF THE TWO STREETS IN QUESTION AND THEIDR CONFIGURATION
HELPING 'IO EXPLAIN THE '!RIAL JUDGE ABATED REFUSAL ID ADDRESS "SPECIT:U:C FINDINGS OF FACT
RELATING THE [RELATOR'S] USE OF HIS TURN SIGNAL OR THE CHARACTER OF THE ROADWAY; 'HIE
'!RIAL COURT ALSO. DID NOT :MAKE-~; A CREDIBILITY DETERMINATION AS TO MUNOZ'S TEST]JIX)NY;
MOREOVER, THERE WAS NO SPECIFIC COOCLUSION OF LAW ID THE .UNDERLYING QUESTION OF WHETHER
MUNOZ HAD THE NECESSARY REASONABLE SUSPICION ID SIDP THE [RELATOR] FOR A TRAFFIC
VIOLATION.n (See COURT OF CRIMINAL APPEALS, PD-0238-ll, Slip Op.)
FURTHERMORE, IT IS QUITE HIGHLY POSSIBLE, AND MORE LIKELY THAN NOT, ALL ARE OR
WERE AWARE THE '1m OFFICERS, DETECTIVE CESAR MUNOZ'S AND SIMON RAY PORTER'S BEING
UNDER INVESTIGATION AND EVmTIAI.LY INDICTED FOR DRUG CRIMES AND/OR PER.JURY, AND liDW
COOVICTED. (See, TAB 3, APPENDIX, "OFFICER ARRESTED ON PERJURY CHARGES," dated AUGUST
24, 2010, 12:00 am; See also, APPELLEE'S BRIEF, NO. 06-09-00225-CR, Received in the
Court of Appeals Sixth District August 26, 2010, Texarkana, Texas, Debra Autrey, clerk).
RELATOR •s:mother, Glenda Robinson',. attempted to retrieve the Daily Tribune print out
from Tribune personneL however, on first attempt a phone call was made to persons
unknown and was denied any information about DETECTIVE CASAR MUNOZ and only after
several attempts later was printed out OFFICER SIMON RAY PORTER'S information of ARREST
WARJRANT, INTERNAL AFFAIRS INVESTIGATION, FELONY CHARGE OF AGGRAVATED PERJURY, WITH
RELEASE FROM THE POLICE DEPARTMENT OF MOUNT PLEASANT, TEXAS. The person whom OFFICER
SIMON RAY PORTER issued FALSE STATEMENTS UNDER OATH IN A JURY TRIAL was RUTH ANN
SHARPER, who happens to be RELATOR'S AUNT, the charge, "two indictments charging her
with possession of marihuana and possession of a controlled substance." PORTER QUOTED
A STATEMENT ASSUMEDLY MADE BY SHARPER AT THE TITUS JAIL ON DECEMBER 9, 2009 APPROXIMATELY
2 MONTHs AFTER RELA'IOR • s=JIJRY '!RIAL ro -WIT PORTER TESTIFIED, SEPTEMBER 15/16, 2009. Id.
34,
\g<3> III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
D. The ABATED "FINDINGS OF FACT AND CONCLUSION OF LAW" omitting material facts relevant
to the testimony given by MOUNT PLEASANT DETECTIVE CESAR MUNOZ AND POLICE OFFICER
SIMON RAY PORTER questioning the lawfulness of RELATOR'S CONVICTION, PRECISELY:
DETECTIVE CESAR MUNOZ,too, was under investigation, indicted on FEDERAL DRUG
CHARGES and too was released from the MOUNT PLEASANT POLICE DEPARTMENT, all of which lS
public information that this RELATOR is unable to retrieve, but was made aware of the
investigation through APPELLATE ATTORNEY OF RECORD, L. Charles van Cleef, State Bar No.
00786305, P.o. Box 2432, 431 N. Center Street, Longview, Texas 75606-2432, Phone: (903)
248'-8244; Fax: (903) 248-8249, prior to filing RELATOR'S APPEAL NO. 06-09-00225-CR, in
the SIXTH DISTRICT COURT OF APPEALS in TEXARKANA, TEXAS, that was submitted JULY 23,
2010, not only to the COURT OF APPEALS, but also to, Charles c. Bailey, Titus County
District Attorney, that surely was aware of the ongoing investigations of POLICE OFFICER
SIMON RAY PORTER and/or DETECTIVE CESAR MUNOZ. (APPELLANT'S BRIEF, Id. at pg. 38).
This explanation clearly rev:eals the trial court JUDGES reluctance in the ABATED
FINDINGS OF FACT AND CONCLUSION OF LAW to declare any findings of relevance to the .
traffic stop other than as stated in COURT OF CRIMINAL APPEALS, slip op., n. 3, "1.
The Court FINDS that on August 25, 2008, Timothy Lee Robinson was stopped by Mt.
Pleasant Police Department officers for a traffic violation." The COURT continues,
"There were no SPECIFIC FINDINGS OF FACT relating to the APPELLANT'S USE OF HIS 'lURN
SIGNAL OR THE CHARAcrER OF THE RO.AIMAY~ The TRIAL COURT ALSO DID Nor MAKE A CREDffiiLITY
DETERMINATIOO AS· TO MUOOZ 'S TES'l'IMa-N. Moreover, THERE WAS NO SPECIFIC CGJCLUSION OF
LAW RELATING TO THE UNDERLYING QUESTION OF WHETHER MUNOZ HAD THE NECESSARY REASONABLE
SUSPICIOO TO STOP THE APPELLANT FOR A TRAFFIC VIOLATIOO." Id. at slip op. n. 3. The
trial court JUDGE at the time of this ABATEMENT, and it would be within reason to say
the DISTRICT ATTORNEY'S OFFICE, as well as a majority of the CITY OF MT. PLEASANT,
would be reluctant to give either, DETECTIVE CESAR MUNOZ and/or P(J)LICE OFFICER SIMON
RAY PORTER, much if any credibility being made aware of the ongoing investigations into
there assumed long standing DRUG INVOLVEMENT AND PERJURY TACTICS WITH ARRESTS TO PROVE
SUCH INVOLVEMENT, THAT THE OFFICIALS IN MT. PLEASANT ARE QUITE AWARE OF.
H~, A REASONABLE PERSON might tend to question the DISTRICT ATTORNEY'S OFFICE
as to just two days prior to filing APPELLEE'S BRIEF, AUGUST 24, 2010, with the ARREST
OF THESE OFFICERS, KNOWING THEIR INVOLVEMENT AND TESTIMONY IN THIS CASE, WHY WOULD THE
DISTRICT ATTORNEY'S OFFICE CCN.l'INUE '10 PURSUE THIS CASE, UNLESS THEIR IS AN ALTERIOR
MOTIVE, OR AGENDA WrTHIN THEIR OFFICE, FILING APPELLEE'S BRIEF AUGUST 26, 2010.
35
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
E. The RELEASE of HIRED APPELLATE ATTORNEY; L. Charles van Cleef, State Bar No. 00786305,
P~O.Box 2432, 431 N. Center Street, Longview, Texas 75606-2432, Phone: .903-248-8244,
Fax: 903-248-8249; and, .the COURT'S APPOINTMENT,of; Charles Mac Cobb, ATTORNEY-at-
LAW, P.O.Box 1134, Mt. Pleasant, Texas 75456; for the precise issues to follow:
RELATOR hired under contract for the entire appellate process, until finality, the
LEGAL REPRESENTATION OF, L. Charles van Cleef, for a specified sum of money.
Appellate Attorney L. Charles van Cleef submitted; on JULY 23, 2010, APPELLANT'S
BRIEF. On AUGUST 24, 2010 the APPELLEE'S BRIEF was SERVED, VIA FAX NO.: 903-248-8249,
on Charles VanCleef, VanCleef Law Office, P.C., P.O. Drawer 3267, Longview, Texas
75606.
On JANUARY 13, 2011, the COURT OF APPEALS reversed the conviction in an unpublished
opinion. ROBINSON v STATE, NO.: 01-09-00134-CR (Tex. App. -Texarkana, delivered JANUARY
13, 2011). Neither party filed a motion for rehearing. The State's PETITION FOR
DISCRETIONARY REVIEW was due on FEBRUARY 14, 2011. STATE'S PETITION FOR DISCRETIONARY
REVIEW (PDR), Id. at pg. 2, Statement Of Procedural History.
APPELLATE ATTORNEY Charles Van Cleef was mailed a copy of PDR on FEBRUARY 14, 2011
the same day due, and without any notification for extentions of time, was not filed in
the SIXTH COURT OF APPEALS until, FEBRUARY 22, 2011, and not filed in the COURT OF
CRIMINAL APPEALS until MAY 03, 2011. STATE'S PDR, Id. at cover page, No. 06-09-00225-
CR, PD-00238-11.
RELATOR having no knowledge of the PDR PROCESS taking place, no notification from
APPELLATE ATTORNEY Charles Van Cleef, nor notification from either the court systems
or the state, thereby, has to assume,·as the PDR WAS FILED BY LISA C. McMINN'S STATE
PROSECUTING ATTORNEY' S OFFICE by ASSISTANT STATE'S ATTORNEY, JOHN R. MESSINGER Bar
No.: 24053705, that the OFFICE OFCHARLES C. BAILEY, TITUS COUNTY DISTRICT ATTORNEY,
/
105 W. lst STREET, STE. 102, MT. PLEASANT, TEXAS 75455-4462, HAD RECUSED THEMSELVES ~~·.
due to their knowledge of the INVESTIGATION AND PROSECUTION OF THE MT. PLEASANT POLICE
DETECTIVE CESAR MUNOZ AND OFFICER SIMON RAY PORTER. Furthermore, this lack of RELATOR'S
knowledge DENIED HIM DUE PROCESS FOR ANSWERING THE STATE'S PDR, SINCE APPELLATE ATTORNEY
Charles Van Cleef failed to either file a response or notify this RELATOR of this PDR
PROCESS, which would have clearly brought about a different outcome. Not to mention
the UNTIMELY FILING OF THE STATE'S PDR WITHOUT KNOWN EXTENTION OF TIME TO FILE, THEREBY,
SHOULD HAVE BEEN DECLARED OF NO FORCE OR EFFECT DUE TO UNTIMELY FILING.
36
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
E. The RELEASE of HIRED APPELLATE ATTORNEY.; L. Charles van Cleef, State Bar No. 00786305,
P.o. Box 2432, 431 N. Center Street, Longview, Texas 75606-24~2, Phone: 903-248-8244,
Fax:903-248-8249; and, the COURT'S APPOINTMENT of; Charles Mac Cobb, Attorney-at-
LAW, P.O. Box 1134, Mt. Pleasant, Texas 75456; the precise issues to follow:
The RECORD is clear that HIRED APPELLATE ATTORNEY L. CHARLES van CLEEF; was
NOTIFIED of the STATE PROSECUTING ATTORNEY'S intent to file a PDR on FEBRUARY 14, 2011
(See STATE'S PDR, Id. at pg. 13, CERTIFICATE OF SERVICE); filed with SIXTH COURT OF
APPEALS FEBRUARY 22, 2011, and COURT OF CRIMINAL APPEALS MAY 03, 2011; AWARE OF RELATOR'S
IMPRISONMENT IN TDCJ-ID, thereby had a duty and obligation, had attorney of record made
a decision not to file said response to the STATE'S PDR, to at least notify RELATOR of
said decision to which RELATOR could have filed a· response· PRO-SE. However, this would
have meant releasing said attorney of record from any further obligations under contract
to perform, i.e. totality of the appeal process, appeal bound, PDR answer, SUPPLEMENTAL
ANSWER ON REMAND, inter-alia.
The TR[AL COURT clearly ABUSED ITS DISCRETION in the release of HIRED APPELLATE
ATTORNEY L. Charles van Cleef after ATTORNEYS FILING AND COURT GRANTING APPEAL BOND
without any notification to, or response from RELATOR, by a hearing or otherwise, to
allow RELATOR to interject the contractual obligations not yet performed} as agreed.
This proceeding took place sometime in JULY OR AUGUST, with: 1both, TRIAL COURT AND
APPELLATE ATTORNEY fully aware of RELATOR'S prison confinement, thus the purpose for
the APPEAL BOND. Furthermore, it cannot be said that APPELLATE ATTORNEY had been
released before the due date of RELATOR'S PDR RESPONSE, had the contractual obligation
been met between RELATOR AND APPELLATE ATTORNEY, said ATTORNEY would have withdrew .:
sooner than JULY OR AUGUST to retrieve the remainder of his money placed into the IOLTA
TRUST ACCOUNT.
For the reasons above RELATOR believes the TRIAL COURT ABUSED its DISCRETION, not
holding a hearing, or giving notification of intent, to RELEASE HIRED ATTORNEY L.
CHARLES van CLEEF who had been contractually hired to see the appeal process through
to its completion, RELATOR'S understanding of said contract was to include PDR ANSWER,
APPEAL BOND, INTER-;:ALIA. Had RELATOER been advised of release there would surely been
an OBJECTION ENTERED ON THE GROUNDS LISTED-
COURT APPOINTED ATTORNEY upon RELATOR PRISON\RELEASE, CHARLES MAC COBB, MADE I'D
REPRESENTATION FOR RELA'IOR,JNO ANSWER TO STATE SUPPLEMENT/IN REMAND, FILED NOTHING, OONE
37
.38
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
E. The RELEASE of HIRED APPELLATE ATTORNEY; L~Charles van Cleef, State Bar No. 00786305,
P.O. Box 2432, 431 N. Center Street, Longview, Texas 75606-2432, Phone: 903-248-8244,
Fax: 903-248-8249; and, the COURT'S APPOINTMENT of; Charles Mac Cobb, Attorney-at-
LAW, P.O .. Box'll34, Mt. Pleasent, Texas 75456; the precise issues to follow:
RELATOR not made aware of HIRED APPELLATE ATTORNEY'S RELEASE until PRISON RELEASE
ON APPEAL BOND, as recalled sometime in SEPTEMBER or OCTOBER 2011, being brought before
the TRIAL COURT JUDGE, was advised the need to obtain counsel. RELATOR questioned the
TRIAL COURT JUDGE'S release on a contractually HIRED ATTORNEY by withdrawal through a
COURT ORDER, TO NO AVAIL. RELATOR'S finances had been-deminished through the recent
imprisonment denying the ability to rehire an attorney, therefore, TRIAL COURT made an
APPOINTMENT OF CHARLES MAC COBB.
APPOINTED ATTORNEY, CHARLES MAC COBB, 1n order to be efficient /effective counsel
for this APPEAL PROCESS should have, at a very minimum, filed some form of response to
the STATE SUPPLEMENTAL BRIEF ON REMAND. PARTICULARLY, to:the ISSUE OF "NO OBJECTIONn
TO A "CHAIN OF CUSTODY TESTIMONY BY WrmESSES 1 DETECTIVE. RAY YOKEL AND KAREN SHUMATE 1
SPEAKING TO THE ISSUE OF H~ THE ENVEWPE (STATE'S EXHIBIT 2) PROCEOORELY CAME TO HOLD
THE DRUGS IN QUESTION.n (SEE, EXPLAINATION herein, Id. at pgs 22-23, B. The refusal to
revisit the pre-trial ruling on MOTION TO SUPPRESS in light of RE-LITIGATED TRIAL
EVIDENCE; See also, RR V 3, P 23; 24-25; 28-29; and 105-112).
RELATOR CLEARLY DENIED EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER, BOTH, THE
TEXAS AND UNITED STATES CONSTITUTIONS, THROUGH THEIR FAILURES TO ADDRESS EITHER THE PDR
OR STATE SUPPLEMENTAL ON REMAND. IT IS A WELL KNOWN FACT IF NOTHING IS FILED ON BEHALF
OF A CERTAIN PARTY THE COURT'S JOB IS EASY, THEY RULE OFF THE OOLY DOCUMENTS AND ",.,
ARGUMENTS THEREIN PRESENTED BEFORE THE COURT. IN THE IGNORANCE OF THIS ISSUE THE RELATOR
HAS AGAIN BEEN IMPRISONED DUE TO A LACK OF-REPRESENTATION, QUESTIONING THE APPOINTMENT
OF COUNSEL TO DO ABSOLUTELY NOTHING, CONSPIRACY TO CONVICT AND IMPRISON ?
F. RELATOR'S 11.07 APPLICATION FOR WRIT OF HABEAS CORPUS, PRECISELY:
RELATOR has clearly revealed the DENIAL OF EFFECTIVE REPRESENTATION OF COUNSEL
starting with TRIAL ATTORNEY, HIRED APPELLATE COUNSEL AND THEN THE COURT APPOINTED
. .
ATTORNEY TO DO NOTHING, WASTING TAX PAYERS MOl'iiEY TO ASSURE IMPRISONMENT AND AFFIRMATION
TO A CONVICTION, DENYING RELATOR'S RIGHTS UNDER THE CONSTITUTIONS OF TEXAS AND THE
UNITED STATES TO DUE PROCESS,·~·COUNSEL REPRESENTATION, RIGHT '10 ADDRESS Id.
RELATOR does not have access to the entire record of this case due to confinement.
HOWEVER, with the documentation acquired, if it is not the contention laid out above,
it is as the GROUNDS in RELATOR'S· 11.07 APPLICATION SUGGEST, SPECIFICALLYi When the
complained of evidence was offered, trial counsel, rather than urge his pre-trial
motion to suppress, stated, NO OBJECTION, THEREBY THE APPEAL COURT REFUSED TO REVISIT
THE ERROR AS THE ERROR WAS NOT PRESERVED. Likewise~, the denial of the MOTION TO
SUPPRESS was in error. This failure to properly preserve the error for review to the
APPEAL COURT would have obviously brought about a different proceeding, had counsel
objected. However, RELATOR does not concede counsel STATED NO OBJECTION TO EVIDENCE.
39
4()
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
< .{;
F. RELATOR 'S 11.07 APPLICATION FOR·WRIT OF .HABEAS CORPUS, PRECISELY:
\
At'the conclusion of:tbe SUPPRESSION HEARING the COURT determined that probable
cause existed for the stop and that the defendant consented to the search of the vehicle.
RR, V 2, P 42, Ibid. The COURT indicated that it would prepare findings of fact and
conclusions to be filed in this case the undersigned finds no evidence that such was
done). Ibid. APPELLANT'S BRIEF, Id. at page 12.
The SIXTH COURT OF APPEALS ABATED THE APPEAL AND ORDERED THE TRIAL CXXJRT 'lU MAKE A
FINDINGS OF FACT and overruled RELATOR'S THIRD POINT OF ERROR AS MOOT. SIXTH COURT OF
APPEALS, MEMORANDUM OPINION, Id. at page 2, f.n. 1. NOTE NO MENTION OF CONCLUSION OF
LAW. Id. REVERSED AND REMANDED FOR NEW TRIAL.
After remand, the ONLY FINDING RELEVANT ro THE TRAFFIC S'IUP STATED: "1. The COURT
FINDS that on August 25, 2008, Timothy Lee Robinson was stopped by Mt~ Pleasant Police
department officers for a traffic violation." There were NO SPECIFIC FINDINGS OF FACT
RELATING TO THE APPELLANT'S USE OF HIS TURN SIGNAL OR THE CHARACTER OF THE ROADWAY.
The trial court ALSO DID NOT MAKE A CREDIBILITY DETERMINATION AS TO MUNOZ'S TESTIMONY.
Moreover, THERE WAS NO. SPECIFIC CDNCLUSION OF LAW;: relating to the underlying QUESTION
OF WHETHER MUNOZ HAD THE NECESSARY/REASONABLE SUSPICION 'lU S'IUP APPELLANT FOR A TRAFFIC
VIOLATION. TEXAS COURT OF CRIMINAL APPEALS, Slip Opinion B, PD-0238-ll, f.n. 3, Id.
There are some very clear and specific reasons why both the TRIAL COURT JUDGE, at
the ABATEMENT, and the TITUS COUNTY DISTRICT ATTORNEY, CHARLES C. BAILEY, REFUSE TO
ADDRESS THE CONTROVERTED, PREVIOUSLY UNRESOLVED FACTS MATERIAL ro THE La;M.ITY OF 'TilE
RELATOR'S CONFINEMFNI'. SPECIFICALLY i
BOTH, HON. JIMMY LEON WHITE, TRIAL JUDGE, AND CHARLES C. BAILEY, DISTRICT ATTORNEY,
are, or were at time of trial and abatement, residents·of MT. Pleasant. As residents
it is highly likely both are, or were, AWARE OF·'1JIE CHARACTER OF THE ROADWAY, NINTH
STREET AND MARGARET DRIVE, AS WERE/ARE DETECTIVE CESAR MUNOZ AND OFFICER SIMON RAY
PORTER. NINTH STREET AND MARGARET DRIVE ARE A TWO LANE ROADWAY, TRAFFIC ON ONE'SIDE OF
THE CURVED BLACKIDP BACIL:STREET, CDING ONE D~ON, ON THE O'.mER SIDE GOING THE
OPPOSITE DIRECTION, THERE IS NO MERGE LANE, TO SCCX>T OVER INTO ANOTHER LANE, TI''S A
CURVE "SIMPLY?FOLUMING THE 'D~ 316 S.W.3d 633, 638 - 643 (Tex. Crim. App. 2010; see
also SIXTH COURT OF APPEALS, REVERSE AND REMAND OPINION, AT page 7, Id.)(See also,
DEFENSE EXHIBIT l; and TAB 2, RELATOR'S SUPPLEMENTAL DIAGRAM NINTH & MARGARET CONFIG.)
40
41
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE. TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
F. RELATOR'S 11.07 APPLICATION FOR WRIT OF HABEAS CORPUS, PRECISELY:
Whether a driver is required to activate a turn signal IS A QUESTION OF LAW FOR
THE TRIAL JUDGE TO DECIDE. It is a question of statutory, OR ORDINANCE, interpretation
and application of the LAW TO THE FACTS. THE JUDGE DECIDES THE APPLICATION OF LAW
TO FACTS (APPELLEE BRIEF, page 16 of 25).
TEXAS CODE CRIMINAL PROCEDURE (TCCP) ART. 11.07 b, in pertinent part states, " ...
the attorney representing the state •.. shall answer the application not later than the
15th day after the date the copy of the application is received ... "
TCCP ART. 11.07 c, in pertinent part states, "Within 20 days of the expiration of
the time in which the state is allowed to answer, it shall be the duty of the convicting
court to determine whether there are controverted, previously unresolveq facts material
to the legality of the applicant's confinement."
The STATE can't have it both ways, either the ATTORNEY OF RECORD at trial failed
to preserve the ERROR by stating "NO OBJECTION" as RULED BY THE SIXTH COURT OF APPEALS,
OR, as RELATOR STATES in the 11.07 APPLICATION, RELATOR WAS DENIED EFFECTIVE ASSISTANCE
OF CXXJNSEL "F'<:E THE FAILURE TO PRESERVE THE ERROR FOR APPEAL PURPOSES. n
RELATOR further asserts, under FEDERAL LAW this circumstantial evidence, of
record, herein stated, attachedhereto, and through the actions of the participants
stated herein, is sufficient to prove the existance of "A CONSPIRACY TO UNLAWFULLY
AFFIRM THE CONVICTIOO TO a>NFINE RELATOR." FURTHERMOR,E, the AGREEMENT IS INFERRED from
the concert actions among the alleged participants, i.e., DISTRICT ATTORNEY'S OFFICE,
TRIAL JUDGE, TRIAL ATTORNEY, HIRED APPELLATE ATTORNEY, APPOINTED APPELLATE ATTORNEY
v
UPON RELEASE ON APPEAL BOND, ET.AL., AND ARE VOLUNTARY PARTICIPANTS AS INFERRED
FROM THE COLLATION OF CIRCUMSTANCES (18 USCA § 371; see also, US v THON, 917 F 2d 170,
Id.) .
The PARTICIPANTS hereof are criminally responsible for "THE OONSPIRACY" while
acting with the intent to promote and/or assist "THE CONSPIRACY ALLEGED.n PARTICIPANTS
have solicited, encouraged, directed, aided, and/or attempted to aid the OTHER
PARTICIPANTS in the commission of SAID CONSPIRACY; and/or having A LEGAL DUTY TO
PREVENT the commission of SAID CONSPIRACY PARTICIPANTS did act with intent to promote
and/or assist SAID CONSPIRACY, THEREBY, PARTICIPANTS FAILED to make a reasonable effort
to prevent the COMMISSION OF SAID CONSPIRACY (Tex. Pen. Code (TPC) § 7.02).
RELATOR'S FINAL ASSERTION, it is no defense that THE PARTICIPANTS belong to a
41
III
76th JUDICIAL DISTRICT COURT OF TITUS COUNTY, TEXAS
THE TRIAL COURT ERRED IN ITS ANALYSIS CONCERNING:
F. RELATOR'S 11.07 APPLICATION FOR WRIT OF HABEAS CORPUS, PRECISELY:
CLASS OF PERSONS that by definition of the offense IS LEGALLY INCAPABLE OF COMMITTING
SAID CONSPIRACY IN AN INDIVIDUAL CAPACITY; and/or that SAID PARTICIPANTS FOR WHOSE
CONDUCT THE CJI'HER PARTICIPANTS IS CRIMINALLY RESPONSIBLE ••• "IS IMMUNE FRa-1 PROSECUTION"
(TPC § 7.03).
IV
THE· COURT OF APPEALS SIXTH. APPELLATE DISTRICT OF TEXAS, JIT'TEXARKANA.
THE SIXTH COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:
A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S
OFFICE, PRECISELY:
l) THE ATTORNEY FOR APPELLEE was to be, and as revealed on cover of APPELLEE'S
SUPPLEMENTAL BRIEF ON REMAND, THE STATE OF TEXAS, STATE PROSECUTING ATTORNEY LISA C.
McMINN AND ASSISTANT STATE'S ATTORNEY JOHN R. MESSINGER, the attorney's who had filed
STATE'S PETITION FOR DISCRETIONARY REVIEW.
If there was to be any further filings, such as APPELLEE'S SUPPLEMENTAL BRIEF ON
REMAND it was to be filed by the ATTORNEY FOR APPELLEE, i.e. LISA Me MINN and/or JOHN
R. MESSINGER, for the fact of the matter being; a) it was to be considered HYBRID -
REPRESENTATION, and any filings as such were to be as nothing for review before the
COURT, THEREBY HAVING NO FORCE OR EFFECT; and, b) the TITUS COUNTY DISTRICT ATTORNEY'S
OFFICE, in light of DETECTIVE CESAR MUNOZ AND OFFICER SIMON RAY PORTER being INDICTED
AND CONVICTED OF PERJURY AND DRUG OFFENSES, in said county was to RECUSE THEMSELVES
from any other proceedings in this case,respecially, when the OFFICER'S were the J
ARRESTING OFFICER'S TESTIFYING for the TITUS COUNTY DISTRICT ATTORNEY OFFICE, WHO WERE
BEING INVESTIGATED AND EVENTUALLY INDICTED AND CONVICTED OF PERJURY AND DRUG OFFENSES
(see TAB 3, OFFICER ARRESTED ON FELONY PERJURY CHARGES, OFFICER SIMON RAY PORTER;
DETECTIVE CESAR MUNOZ can be found in MT. PLEASANT TRIBUNE PAPER, however, upon request
the staff made a phone call about release and refused to print out on CESAR.MUNOZ).
2) Based on APPELLANT'S BRIEF, due to incarceration RELATOR has:-:no access to
complete record, the TITUS COUNTY DISTRICT ATTORNEY OFFICE has again MISCHARACTERIZED
THE FACTS TO OBTAIN A FAVORABLE RULING FROM THE COURT. APPELLANT'S BRIEF page 13, at
C. Trial Testimony, states, " ... , the State was once again allowed to place the alleged
WRITTEN STATEMENT OF THE APPELLANT and EVIDENCE DESPITE DEFENSE COUNSEL'S OBJECTION
42
IV
THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA
THE SIXTH COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:
A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S
OFFICE, PRECISELY: (#2, continuation)
(hearsay); ... " RR V 3, P 23, 24- 25, Ibid. THE ENVELOPE i!rl. which the suspected cocaine
was placed (State's Exhibit 2) and a DVD (State's Exhibit 3) were ALSO ~ITI'ED,
without objection. RR V 3, P 28 - 29, Ibid. This RECORD REVEALS at the beginning of
trial the WRITTEN STATEMENT AND EVIDENCE(the cocaine) WAS CLEARLY INTRODUCED:DESPITE
COUNSEL'S OBJECTIOO (HEARSAY).
In APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND at page 7 of 12, the TITUS COUNTY
DISTRICT ATTORNEY OFFICE states, "Subsequently, the State offered as STATE'S EXHIBIT 2
the controlled substance, the subject of Robinson's objection in his motion to suppress.
RR V 3, P 110,·~ 22- P 112, L B.. With the benefit of Munoz's characterization of the
intersection, counsel for Robinson asserted, 'No Objection[,] ''to the admission of
STATE'S EXHIBIT 2 .. RR V 3, P 112, L 10. The evidence was received. RR V 3, P 112, L 11."
These 3 sentences are very misleading, specifically, at the trial the evidence (the
controlled substance)had been removed from THE ENVELOPE (STATE'S EXHIBIT 2 in which
the suspected coci=J.ine was placed, Id. at APPELLANT'S:-BRIEF, j;lage 13, and stated hercein
above)(:REFERENCING SENTENCE 1_, "Subsequently, ..• )~ Furthermore, at this point in the
trial.STATE'S EXHIBIT 2 (THE ENVE.LOPE) RR V 3, P 105,-.112, IS TESTDUNY FOR "JJ'HE CHAIN
OF CUSTODY OvER "THE ENVELOPE" (STATE'S EXHIBIT 2) 1 THE NATURE OF THE CONTRABAND, and
CONTRABAND WEIGHT, BY KAREN SHUMATE, THE RECIPIENT OF THE ENVELOPE (STATE'S E:XHIBIT 2)
in which the suspected cocaine had been placed for shipment to THE TEXAS DEPT. OF
PUBLIC SAFETY CRIME LAB frOm DETECTIVE RAY YOKEL, who had placed the contraband in
THE ENVELOPE (STATE'S EXHIBIT 2) and " CHAIN OF CUSTODY WITNESSES." (DETAILED HEREIN
at pages 22, 23, and 27); REFERENCE TO SENTENCE 2, "With the benefit ... ", THE "NO
OBJECTION[ 1]" was to "THE ENVELOPE (STATE'S EXHIBIT 2) AS TO CHAIN OF CUSTODY TESTIMONY.";
REFERENCE TO SENTENCE 3, EVIDENCE WAS RECEIVED. RR V 3, P'' -
"['HE 112, L 11." WAS THE
- ----
ENVELOPE (STATE'S EXHIBIT 2) AFTER THE CHAIN OF CUSTODY TESTIMONY, THAT WAS THE
EVIDENCE RECEIVED ! DISTRICT ATTORNEY INTRODUCED EVIDENCE AND STA'!HlliNI' AT RR V 3, p 23-25 •
WRITTEN STATEMENT AND EVIDENCE ENTERED AT RR V 3, P 23 1 24 - 25. WITH "OBJECTION."
-- -
PROCEDURAL CHAIN OF CUSTODY TESTIMONY OVER "THE ENVELOPE (STATE'S EXHIBIT 2) " · •.
WITH "THE ENVELOPE RECEIVED AS EVIDENCE TO CHAIN OF CUS'IDDY," AT RR V 3, P 112. WITHOUT
. "OBJECTION TO CHAIN OF CUSTODY TESTIMONY AND 'THE ENVELOPE' PREPARATION AND ~IPT ..
PROCEDURES." 87 pages INTO TRIAL BEFORE INTRODUCTION OF EVIDENCE ?
IV
THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA
THE SIXTH COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:
A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S
OFFICE, PRECISELY:
3) Again, in APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND at page 7 of 12, the TITUS
COUNTY DISTRICT ATTORNEY'S OFFICE, in REFERENCE TO MISCHARACTERIZED SENTENCE l,
SPECIFICALLY STATING; "Subsequently, the State offered as STATE'S EXHffiiT 2 'THE
CONTROLLED SUBSTANCE,' the subject of Robinson's objection in his motion to suppress."
This is an "INTENT TO DECEIVE AND WITH THE KNOWLEDGE THIS IS TESTIMONY OF THE CHAIN OF
CUSTODY WITH 'STATE'S EXHIBIT 2 ': BEU:JG 'THE ENVELOPE' NOT 'THK. CONTROLLED SUBSTANCE '
OFFERED AND PLACED AS EVIDENCE." This: :is':·a.;: false· statement made by a DISTRICT ATTORNEY
who under oath of office is sworn to uphold the truth and dignity for that office.
Furthermore, this FALSE STATEMENT was made during and in connection with this official
proceeding and has affected the course< and '~outcome of this official proceeding, the
statement was/is clearly material to this outcome. See, TEXAS PENAL CODE (TPC) §§§. ·•·.
37~02, 37.03, and 37.04.
This has become a pattern, practice and procedure of the TITUS COUNTY DISTRICT
ATTORNEY'S OFFICE, particularly with the perjured testimony given by MT.! PLEASANT
DETECTIVE CESAR MUNOZ, WHO CAME UNDER INVESTIGATION WITH PARTNER/ OFFICER SIMON RAY
PORTER/ ON PERJURY AND DRUG CHARGSS, BO~H OF WHOM HAVE NOW BEEN CONVICTED FOR SAID
i
CHARGES. See TAB C, OFFICER SIMON PORTER FELONY ARREST FOR PERJURY.
DETECTIVE MUNOZ AND OFFICER PORTER ARE ANYTHING BUT CREDIBLE OR TRUSTWORTHY revealed
through their testimony at trial, particularly:
MUNOZ TESTIMONY: (APPELLANT'S BRIEF at page 14 and 15) "When he stopped Appellant in
his driveway, Appellant immediately exited (on the driver's side). Ibid. at RR V 3, P
44. The PASSENGERS ALSO QUICKLY EXITED on the passenger size(sic)(where the contraband
was found). Ibid. NOW COMPARE,
PORTER TESTIMONY: Detective (Sic) Porter, ... ,testified ... ,that the Appellant immediately
exited the vehicle when he stopped and began to walk away, and that Appellant was
immediately placed in handcuffs. Ibid. at RR V 3, P 91-92. He TESIFIED THAT THE VEHICLE
OCCUPANTS WERE THEN "REMOVED FROM THE CAR." Ibid. at RR V 3, P 93.
MUNOZ TESTIMONY: .•. testified that the Appellant ADMITTED OWNERSHIP OF THE COCAINE ON
VIDEO in Detective Porter's patrol car, Ibid. at RR V 3, P 50, 57-58, and THAT NO OTHER
PERSON CLAIMED CMNERSHIP, Ibid at RR V 3, P 50. MUNOZ HAD TO ADMIT i IN LIGHT OF THE
VIDEO, that Appellant INITIALLY SAID THAT "ITS (THE CONTRABAND) NOT MINE." Ibid. RR V3t P75.
44
if
IV
THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA
THE SIXTH COURT OF APPEALS ERRED. IN ITS ANALYSIS CONCERNING:
A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S
OFFICE, PRECISELY: (#3 continued)
FURTHERMORE as to the statement, •• "NO arHER PERSON CLAIMED CMNERSHIP. "(OF CONTRABAND):
MUNOZ WAS REQUIRED TO find the portion o:E the video wherein Detective Porter( (\>~ho
transported the Appellant from the arrest in a patrol car) that "SHE SAID, 'NO, IT'S
MINE." Ibid. RR V 3, P 75. The ONLY FEMALE AT THE SCENE ••• WHO EXITED THE VEHICLE ON THE
SIDE WHERE THE COCAINE WAS FOUND. Id. ·
PORTER TESTIMONY; He acknowledged that he told Appellant that MS WILLIAMS DID, IN FACT,
CLAIM-OWNERSHIP. Ibid~ RR V 3, P ·101.
LAKISHA WILLIAMS TESTIMONY: She told the officers NOT TO TAKE THE' APPELLANT TO JAIL AND,
INSTEAD, "TAKE ME. IT'S (THE CONTRABAND) MINE." Ibid. RR V3, P 127.
OFFICER NICHOLS TESTIMONY: He NEVER.HEARD THE, APPELLANT STATE THE aw.mABAND BELONGED
TO HIM. Ibid. RR V 3, P 157. He WAS AWARE THAT MS WILLIAMS CLAIMED THAT THE CONTRABAND
BELONGED TO HER. Ibid. RR V 3, P 158.
It is made clear by the testimonies of; OFFICER SIMON RAY PORTER; OFFICER NICHOLS;
and LAKISHA WILLIAMS; that at the scene of arrest LAKISHA WILLIAMS had •ADMI~~
OON'ERSHIP OF THE COCAINE," therefore 1 MUNOZ 'S. TESTIMONY
. ·.;
"THAT· NO OTHER PERSON CLAIMED
OONERSHIP," was m:>de with the knowledsJe: of the; statements meaning as an intentional
deception under oath, during and in connecqon with the official proceeding of the
trial, clearly the statement was material and could have affected the course and/or
outcome of the trial before the jury. TPC §§§ 37.02, 37.03, 37.04. PERJURY I .MATERIALITY.
While MUNOZ retracted his false statement before the completion of his testimony
it was not done until it became manifest that the falsity of the statement was exposed
by way of the video (STATE'S EXHIBIT 3), during and in connection with the official
proceeding of trial before jury, ~nder oath: TPC § 37.05, RETRACTION.
This was but a continuation of false testimony in the official proceeding by MUNOZ
that began at the SUPPRESSION HEARING in which MUNOZ was the lone witness, SPECIFICALLY:
On SEPTEMBER 15, 2009, the TRIAL COURT held a SUPPRESSION HEARING. RR V 2, P 1.
One witness tesified -CESAR MUNOZ. RR V2, P 1 - 41. Officer Munoz testified, at the
hearing on the motion to suppress, he observed the vehicle ROBINSON was driving "failed
to make a --- use THEIR TURN SIGNAL at the time when IT TURNED ONTO MARGARET FROM
NINTH." (DISTRICT ATTORNEY PREPARATORY STATEMENT) (SIXTH COURT OF APPEALS, ORIGINAL
MEMORANDUM OPINION, .No. 06-09-00225-CR, at page 6, Id.).
45
IV
THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA
THE SIXTH COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:
A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S
OFFICE, PRECISELY: (#3 continued)
At the SUPPRESSION HEARING, the defense showed MUNOZ a map, which MUNOZ described
as incorrect. When asked, "DOES NINTH STREET CURVE INTO MARGARET DRIVE ?" MUNOZ RESPONDED,
"YES IT DOES, but the way that indicates is incorrect'to the actual way_the street is •.. "
According to MUNOZ, the defense exhibit was incorrect, "[b]ecuase in [DEFENSE EXHIBIT 1],
East Eighth does not run into MARGARET, and then you've got East Ninth, and they run
parallel to each other." SIXTH COURT OF APPEALS, supra, Id. at page 10-ll.
The record also contains EVIDENCE that the TRAFFIC FROM NINTH STREET 'DOES MERGE
ONTO' MARGARET DRIVE. The defense introduced a map THAT SUGGESTS NINTH STREET 'MERGES'
WITH MARGARET DRIVE. The defense exhibit appears to be photocopied from a commercial
atlas. supra, at 10, Id.
At TRIAL, MUNOZ testified Robinson FAILED TO SIGNAL A TURN at the intersection of
NINTH AND MARGARET in Mount Pleasant, Texas. MUNOZ ADMITTED EAST NINTH STREET and
MARGARET DRIVE MERGE AT THEIR INTERSECTION. supra, at 10, Id.
While the STATE PROSECUTING ATTORNEY in the STATE'S PETITION FOR DISCRETIONARY
'
REVIEW (PDR) makes their attempt to clean up the PERJURED STATEMENT OF MUNOZ AS TO THE
USE OF THE TERM "t'ERGE" SPECIFICALLY STATING:
"TERMS USED BY THE WITNESSES DO NOT APPEAR 'ID BE USED IN ANY TECHNICAL SENSE. FOR
EXAMPLE, THERE IS NO INDICATION THAT THE OFFICER MEANT 'MERGE' AS 'lUIS CUJRT USED IT
IN MAHAFFEY." PDR AT 8, f.n. 3, ·rd. see also TAB 2, RELATOR'S SUPPLEMENTAL DAIGRAM OF
NINTH STREET AND MARGARET DRIVE CONFIGURATION, Id.
HOOEVER, THE SIXTH CDURT OF. APPEALS' USE OF THE TERM "MERGEn DID APPEAR TO BE IN A
TECHNICAL SENSE AND AS AN INDICATION THAT THE OFFICER MEANT "MERGEn AS THE COURT OF
CRIMINAL APPEALS USED IT IN MAHAFFEY. ESPECIALLY, when it continues from Slip. Op. 10,
stating; The defense introduced a map showing that Ninth and Margaret are
"indistinguishable from a single road except for the assigned names." Slip. Op. at 16.
Officer Munoz did not challenge the map's depiction of the intersection of Ninth and
Margaret. Slip. Op. at 16. Appellant's girlfriend confirmed that Ninth CURVES INTO
Margaret without a stop or yield sign. Slip. Op. at 11. PDR at 8, Id.
Even THE STATE PROSECUTING ATTORNEY in the PDR concedes, "In short, the physical
description of how Ninth and Margaret MEET W~S DEPICTED IN A MAP THAT WAS CORROBORATED
BY AT LEAST ONE WITNESS "AND CONTRADICTED BY NONE. '" PDR at 8, Id.
The TITUS COUNTY DISTRICT ATTORNEY is in direct violation of DUE PROCESS CLAUSE of
the 14th Amendment, Prosecutorial Misconduct, k,nowtLiDt.~otional .us~ of. fq_lse.,_sta tements ·
46
IV
THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA
THE SIXTH .COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:
A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S
OFFICE, PRECISELY: (#3 continued)
When the STATE PROSECUTING ATTORNEY'S OFFICE, in AUSTIN, TEXAS, filed a PDR on
behalf of DAVID COLLEY, TITUS COUNTY ASSISTANT DISTRICT ATTORNEY of MOUNT PLEASANT,
TEXAS, it was to be for. RECUSAL PURPOSES explained herein at page 42 (A)(l)(b). HOWEVER,
the STATE PROSECUTING ATTORNEY by filing the PDR then was to become the ATTORNEY FOR
THE TITUS COUNTY DISTRICT ATTORNEY OFFICE with ANY FUTURE FILINGS to be performed by
STATE PROSECUTING ATTORNEY OFFICE, in AUSTIN, arid ANYl FUTURE FILINGS BY THE '"fJ[TUS COUNTY
DISTRICT ATI'ORNEY'S OFFICE WAS TO BE CONSIDERED "HYBRID - REPRESEN"l"ATION, as explained
herein at page 42 (A)(l)(a). See PDR, APPEAL FROM TITUS COUNTY, PD-0238-ll, No. 06-09-
0025-CR, February 22, 2011, COURT OF CRIMINAL APPEALS filied MAY 03, 2011; see also,
APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND, filed NOVEMBER 19, 2012.
FURTHERMORE, the TITUS COUNTY DISTRICT ATTORNEY has with thel: INTENT TO DECEIVE AND
KNOWLEDGE OF STATEMENTS FALSITY GIVEN UNDER OATH MADE DURING AND IN CONNECTION WITH AN
OFFICIAL PROCEEDING, has contrived a conviction through the pretense of a trial which
in truth was used as a means to deprive this RELATOR OF LIBERTY through the said
deception of both the trial court and jury by said presentation of testimony known to
be perjured by OFFICER'S KNOWN TO BE UNDER INVESTIGATION, INDICTMENT, ARREST, WITH
CONVICTIONS JUST DAYS BEFORE FILING APPELLEE'S BRIEF with the SIXTH COURT OF APPEALS,
AUGUST 26, 2010, COMPARE TO ATTACHMENT TAB 3, OFFICER ARRESTED ON FELONY PERJURY
CHARGE, with RELATOR .UNABLE: to obtain CESAR MUNOZ'S ARREST FOR F.ELONY DRUG CHARGES.
With the TITUS COUNTY DISTRICT ATTORNEY'S known use of perjured testimony for the
configuration of the assumed intersection of NINTH STREET arid MARGARET DRIVE (which
determined if a signal was necessary) by two officers, particularly, DETECTIVE CESAR
MUNOZ and OFFICER SIMON RAY PORTER, who were under investigation, indicted, arrested,
and convicted of felony perjury and drug charges is EXCULPATORY EVIDENCE THE TITUS
COUNTY DISTRICT ATTORNEY'S OFFICE HAD A DUTY TO DISCLOSE TO THE DEFENSE FOR WHICH THE
STANDARD OF MATERIALITY GAVE RISE TOSAID DUTY. Those determrunations were very relevant
on whether the officer could have reasonably believed such a signal was required and ~:
the STATE WAS RELIEVED of establishing that the detention was reasonable. See OURSBOURN
v. STA~E, 288 S.W.3d 65, 70 (Tex. App. -HOUSTON [lst Dist.] 2009, no pet.)(finding
egregious harm because State was relieved of burden of establishing voluntariness of
statement). There is a reasonable likelihood that this false testimony could have
effected the judgement of the jury. AGURS, 427 U.S. at 103, 96 S CT at 2397. The jury
47
IV
THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA
THE SIXTH COURT OF APPEALS ERRED IN ITS ANALYSIS CONCERNING:
A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S
OFFICE, PRECISELY: (#3 continued)
was unaware that any evidence obtained as a result of an illegal detention could not
be considered for any purpose. See OR~GINAL SIXTH COURT OF APPELAS, MEMORANDUM
OPINION, No. 06-09-00225-CR, at page 21; See herein throughout.
AUTHORITIES
Evidence tainted by unlawful police action is traditionally barred as fruit of
the poisonous tree. See SEGURA v UNITED STATES, 468 U.S. 769, 804 (1984); WONG SUN v
UNITED STATES, 468 U.S. 471 (1963). Assuming the detention was illegal, there is a
clear causal connection between the detention and the discovery of the drugs. The
State does not allege that the discovery of the drugs or Robinson's subsequent
confession was sufficiently attenuated from the alleged illegal detention to purge
the taint of the alleged illegal detention. BROWN v ILLINIOS, 422 U.S. 590 (1975);
BELL v STATE, 724 S.W.2d 780 (Tex. Crim. App. 1986). ORIGINAL SIXTH COURT OF APPEALS,
supra, at 21, Id.
In U.S. v AGURS, 427 U.S. 97, 96 S. Ct. 2392, 49 LEd 2d 342 (1976) the SUPREME COURT
was called to determine whether THE PROSECUTOR HAS A DUTY in absense of specific request
TO DISCLOSE EXCULPATORY EVIDENCE TO THE DEFENSE, and if so WHAT STANDARD OF MATERIALITY
GIVES RISE TO THAT DUTY. AGURS, 427 U.S. at 107, 96 S Ct at 2399. To resolve the issue
the COURT RECOGNIZED 3 STANDARDS OF MATERIALITY. RELATOR'S INTEREST LIES IN ls1t STANDARD.
FIRST, in the case of a PROSECUTOR'S KNOWING USE OF PERJURED TESTIMONY, THE CONVICTION
WII.L BE REVERSED 11
IF THERE IS ANY· REASONABLE LIKELIHOOD THAT THE FAlLSE 'fEST:[K)NY aJULD
HAVE EFFECTED THE JUDGEMENT OF THE JURY. 11
AGURS, 427 U.S. at 103, 96 S Ct at 2397. RELATOR
has revealed this PERJURED I FALSE TESTIMONY throughout the record available, and shown
herein throughout.
The holding in BRADY requires disclosure only of evidence that is both favorable
to the accused and material either to guilt or to punishment. BAGLEY, 478 U.S. at 674,
105 s Ct 3379; BRADY, 373 us I 83 s Ct
In order to invoke the BRADY DOCTRINE the accused m~st present evidence that: 1)
the PROSECUTION SUPPRESSED OR WITHHELD EVIDENCE; 2) this EVIDENCE ~ HAVE. BEEN
FAVORABLE 'ID THE ACCUSED; and, 3) this EVIDENCE WOULD HAWE BEEN MATERIAL ID THE ACCUSED'S
DEFENSE. MOORE v ILL., 408 U.S. 786, 794~95, 92 S. Ct. 2562, 2567-68, 33 LEd 2d 706 (1972);
MULLEN v STATE, 722 S.W.2d 808, 815. WHILE THE ADMISSION OF PREVIOUSLY UNDISCLOSED
EVIDENCE IS REVERSIBLE ERROR.
48
IV
THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA
THE SIXTH COURT OF APPEALS ERRED IN I'I'S ANALYSIS CONCERNING:
A. APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND SUBMITTED BY TITUS COUNTY DISTRICT ATTORNEY'S
OFFICE, PRECISELY: (#3 continued)
This ruling is an extention of MOONEY v HOLOHAN, 294 U.S. 103, 112, 55 S. Ct. 340, 342, 79
L. Ed. 791~ where the (SUPREME) COURT RULED ON WHAT NON - DISCLOSURE BY A PROSECUTOR
VIOLATES DUE PROCESS.
It is a requirement that cannot be deemed to be satisfied by mere notice and hearing
if a STATE HAS CONTRIVED A CONVICTION THROUGH THE PRETENSE OF A TRIAL WHICH IN TRUTH
IS USED AS A MEANS OF DEPRIVING A DEFENDANT OF LIBERTY THROUGH DELIBERA~ DECEPTION OF
COURT AND JURY BY THE PRESENTATION OF TESTIMONY KNOON TO BE PERJURED. Such a contrivance
by A STATE TO PROCURE A CONVICTION AND IMPRISONMENT IS AS INCONSIS'TE:NT W['.m IRUDIMENJTARY
DEMANDS OF JUSTICE AS IS THE OBTAINING OF A LIKE RESULT BY I~MIDATION.
In PYLE v KANSAS, 317 U.S. 213, 215-16, 63 S. Ct. 177, 178, 87 LEd 214 THE U.S. SUPREME
COURT phrased THE RULE IN BROADER TERMS:
"PETITIONER'S PAPERS ARE INEXPERTLY DRAWN, BUT THEY 00 SET FORTH ALJL.EGATIONS 'l'lB!AT HIS
IMPRISONMENT RESULTED FROM PERJURED TESTIMONY, KNOW:mGLY USED BY STATE AUl'BORITIES 'I'O
OBTAIN HIS CONVICTION AND FRCl'1 THE DELIBERATE SUPPRESSION BY THOSE SAME AUTOORITIES OF
EVIDENCE FAVORABLE TO HIM. These allegations SUFFICIENTLY CHARGE A DEPRIVATION OF
RIGHTS GUARANTEED BY THE FEDERAL CONSTITUTION AND IF PROVEN WOULD Efil!TITLE PET.rTIONER
TO RELEASE FROM HIS PRESENT crJSTODY." MOONEY v HOLOHAN, 294 U.S. 103, 55 S. Ct. 340, 79 L
Ed 791.
[373 U.S. 87] The 3rd Circuit in the BALDI case construed that statement in PYLE v
KANSAS to MEAN:THAT THE 'SUPPRESSION EVIDENCE FAVORABLE' ·TO THE ACffiSED WAS ITSELF
SUFFICIENT TO AMOUNT TO A DENIAL OF DUE PROCESS.
In NAPUE v ILL., 360 U.S. 263, 269, 74 S. Ct. 1173, LEd 2d 1217, THE U.S. SUPREME
COURT extended the test·formulated in MOONEY v HOLOHAN.when they said: "The same result
obtains WHEN THE STATE, ALTHOUGH NCJI' SOLICITING FALSE EVIDENCE, AL~S I"l' TO BE
UNCORRECTED WHEN IT APPEARS." and see/ ALCOSTA v TEXAS, 355 U.S. 28, 78 S. Ct. 103, 2 LEd
2d 9; WILDE v W¥0MING,362 US 607, 80S Ct 900, 4 LEd 2d 985. Cf. DURLEY v MAYO, 351
U.S. 277, 285, 76 S. Ct. 806, 811, 100 LEd 1178 [dissenting opin.].
v
The SIXTH COUR'I' OF APPEALS ERRED IN CONCLUDING that ROBINSON FAILED TO. PRESERVE FOR
APPEAL THE ISSUE OF WHETHER THE CONTRABAND SEIZED IN THE SEARCH WAS ADMISSIBLE; when
THE RECORD REVEALS WRITTEN STATEMENT AND EVIDENCE, DESPITE DEFENSE'S OBJECTION (HEARSAY)
PLACED AS EVIDENCE, THEN "THE ENVELOPE"[STATE'S EXHIBIT 2] AND A DVD[STATE'S EXHIBIT 3]
ARE ADMITTED WITHOUT OBJECTION. SEE herein at pages 7-8, Id.
49
v
(CONTINUED)
FUR'I'HERroRE, THE "NO OBJECTION" REFERENCED FOR THIS CONCLUSION BY THE CX>URT OF
APPEALS IS IN RELATION ID THE "CHAIN OF CUSTODY, NATURE OF THE CXN.mABAND, AND THE
WEIGHT OF CX>NTRABAND," IN WHICH THERE WAS "NO OBJECTION." See herein at pages 7-8, Id.
The 76th TRIAL COURT ERRED "ABUSING ITS DISCRETION" IN REFUSAL TO RE-OPEN SUPPRESSION
HEARING, ADDRESS CREDIBILITY OF OFFICER MUNOZ TESTIMONY, ADDRESS AND APPLY LAW TO FACT
AS 'ID WHETHER RELA'IDR WAS 'ID APPLY TURN SIGNAL AT THE MEETING OF THE TWO ROADWAYS,
RELEASING CONTRACTUALLY HIRED APPELLATE ATTORNEY THEREBY FORCING APPOINTED APPELLATE
ATTORNEY WHO DID ABSOLUTELY NOTHING AS TO REPRESENTATION CONSTITUTIONALLY GUARANTEED,
AND REFUSAL 'ID ACKNO\tiJLEDGE 11.07 APPLICATION AS TO THE INEFFECTIVENESS OF COUNSEL
EXPRESSED HEREIN AND AS RELATED TO 11.07 APPLICATION.
The TITUS COUNTY DISTRICT ATTORNEY'S OFFICE has "ABUSED ITS DISCRETION" REFUSING TO
ANSWER 11.07 APPLICATION, COMMITTED "PROSECUTORIAL MISCONDUCT TO MALICIOUSLY PROSECUTE"
RELATOR THROUGH PERJURED STATEMENTS OF OFFICER'S WHO WERE INVESTIGATED, INDICTED, ARRESTED,
\
AND CONVICTED OF FELONY CHARGES FOR PERJURY AND DRUGS, KNOWING STATEMENTS IN REFERENCE
TO THE CONFIGURATION OF THE DISPUTED ROADWAYS IS FALSE, ESPECIALLY AS RESIDENTS OF MT.
PLEASANT, TEXAS, THEN TO CONTINUE WITH A MISREPRESENTATION OF AN 'IMPLIED "NO OBJECTION"
TO EVIDENCE WHEN STATED IN REFERENCE TO A."CHAIN OF CUSTODY TESTIMONY."
CONCLUSION AND PRAYER
For the foregoing reasons, this COURT should GRANT RELATOR'S ORIGINAL PETITION FOR
WRIT OF MANDAMUS. This COURT should issue said writ ORDERING THE SIXTH COURT OF APPEALS
to WITHDRAW~ THE PANEL'S OPINION DATED DECEMBER 13, 2012, and ISSUE A NEW OPINION
REVERSING RELATOR'S CONVICTION AND ORDERING HIS ACQUITTAL.
PRAYER
WHEREFORE, RELATOR PRAYS, based on the foregoing arguments , as well as those
arguments asserted in RELATOR'S BRIEF ON APPEAL, this COURT SHOULD GRANT RELATOR'S
ORIGINAL PETITION FOR WRIT OF MANDAMUS. THIS COURT should issue a writ ORDERING THE
SIXTH COURT OF APPEALS AT TEXARKANA to REVERSE THE JUDGEMENT AND ORDERING TIMOTHY LEE
ROBINSON'S ACQUITTAL AND IMMEDIATE RELEASE FROM TDCJ-ID POWLEDGE UNIT, located at 1400
FM 3452, ANDERSON COUNTY, PALESTINE, TEXAS.
RESPECTFULLY SUBMITTED,
:;tM~~B%ToW1;61~n1~''
POWLEDGE UNIT T/C 0 - 22
1400 FM 3452
PALESTINE, TEXAS 75803 - 2350
50
51
A P P E N D I X
T A B 1
C I T Y C 0 D E S
0 F
M 0 U N T P L E A S A N ~~ T E X A S
C 0 D E 0 F 0 R D I N A N C E S
S E C T I 0 N S
7 0 0 l a n d 7 l 0 3 0
H I G H L I G H T I N G I N T E R S E C T· I 0 N
AND
(S T 0 P P I N G A N D T U R N I N G S I G N A L S)
EVEN THOUGH THE STATE NOW CONCEDES THAT, "AT TRIAL, MUNOZ TESTIFIED THAT
EAST NINTH STREET MERGES, OR CONTINUES, INTO MARGARET DRIVE AT THEIR INTERSECTION."
(APPELLEE'S SUPPLEMENTAL BRIEF ON REMAND)
Page I of I
c-JcJ..
Cr'fY OF MOUNT PLEASANT, TEXAS
CODE OF ORDINANCES
2009 S-6 Supplement contains:
Local legislation current through Ord. 2009-15, passed 10-6-09
)
Published by:
American Legal Publishing Corporation
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Cincinnati, Ohio 45202
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'rilis-·c·ode--of Ordinances and/or any other documents that appear on this site may not reflect the most current legislation adopted by the
Municipality. American Legal Publishing Corporation provides these documents for informational purposes only. These documents should not
be relied upon as tl1e definitive authority for local legislation. Additionally, the formatting and pagination of the posted documents varies from
the formatting and pagination of t11e official copy. The official printed copy of a Code of Ordinances should be consulted prior to any action
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For furt11er information regarding the official version of any of t11is Code of Ordinances or other documents posted on this site, please contact
the Municipality directiy or contact American Legal Publishing toll-free at 800-445-5588.
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Page I of3
5:J
GEN-ERAL PROVISIONS
§ 70.01 DEFINITIONS.
For the purpose of this title, the following definitions shall apply unless the context clearly indicates
or requires a different meaning. .
ALL TERRAIN VEHICLE. A motor vehicle having a saddle for the use of the rider, designed to
propel itself with three or more tires in contact with the ground, designed by the manufacturer for off-
highway use.
ALLEY. A public way in the city extending either partly or through any city block in the rear of city
lots and in a direction generally from avenue to avenue not more than 20 feet in width and capable of
being traversed by a vehicle.
AUTHORIZED EMERGENCY VEHICLE. Vehicles ofthe Fire Department (fire patrol), police
vehicles, public and private ambulances for which permits have been issued by the State Board of
Health, emergency vehicles of city departments or public service corporations as are designated or
authorized by the City Council and private vehicles operated by volunteer firefighters while answering a
fire alarm.
BUSINESS DISTRICT. The territory contiguous to and including a roadway when, within any 600
feet along such roadway, there are buildings in use for business or industrial purposes which occupy 300
feet of frontage on one side or_JOO feet collectively on both sides ofthe roadway.
BUS. A commercial vehicle can·ying passengers for hire and operating over and along a fixed route.
BUS STOP. A section of the roadway along the edge thereof, authorized by order of the City
Council, marked by signs reading "bus stop" as a place for the sole use and convenience of the general
public to board and depart from any bus.
CROSSWALK. That part of a roadway at any intersection included within the connection ofthe
lateral lines of the sidewalks on opposite sides of the street, whether marked or not, measured from the
curbs or in the absence of curbs, from the edges ofthe traversable roadway. The word CROSSWALK
also includes any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian
crossing by lines or other markings on the surface.
DRIVEWAY, PRIVATE. Any entrance or exit over the sidewalk or sidewalk area.ofany street
affording a means of ingress or egress for vehicles to or from any private property or the entrance or exit
of any private garage into or from any alley.
DRIVEWAY, PUBLIC. Any entrance or exit over the sidewalk or sidewalk area of any street
affording a means of ingress or egress for vehicles to or from any public property.
DRIVER. That person who drives or is in actual physical control of the movements of a vehicle.
DIGGING OUT. The practice of starting any motor vehicle from a standing position by applying a
sudden burst of power, recognized by spinning rear wheels and noise of tires on the surface of the
roadway.
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Jf
JN.ERSECTION. The area embraced within the prolongation or connection of the lateral curb lines,
or if none, then the lateral boundary lines of the roadways of two streets which join one another at, qr
approximately at, right angles or the area within which vehicles traveling upon different streets joining
at any other angle may come in conflict. Where a street includes two roadways, 30 feet or more apart,
then every crossing of each roadway of such divided stre~t by an intersecting street shall be regarded as
a separate intersection. In the event such intersecting street also includes two roadways 30 feet or more
apart, then every crossing of two roadways of such streets shall be regarded as a separate intersection.
LANED ROADWAY. A roadway which is divided into two or more clearly marked lanes for
vehicular traffic.
LIMITED-ACCESS OR CONTROL-ACCESS HIGHWAY. E~ery highway, streetor roadway in
respect to which owners or occupants of abutting property or lands and other persons have no legal right
of access to or from the same except at such points only and in such manner as may be determined by
the public authority having jurisdiction over such highway, street or roadway.
LOADING ZONE. That portion of any roadway set apart, marked and numbered for the sole use of
the public as a place for loading or unloading passengers, merchandise or other cargo.
MOTORCYCLE. Every motor vehicle having a saddle for the use of the rider and designed to travel
on not more than three wheels in contact with the ground but excluding a tractor.
.MOTOR VEHICLE. Every vehicle which is self-propelled and every vehicle which is propelled by
electric power obtained from overhead trolley wires but not operated upon rails.
OFFICIAL TRAFFIC-CONTROL DEVICES. All signs, signals, markings and devices not
inconsistent with this chapter placed or erected by authority of a public body or official having
jurisdiction for the purpose of regulating, warning or guiding traffic.
NO PARKING ZONE. A space on the roadway adjacent to the curb, whether marked by official
signs or not, in which no vehicle may be parked.
PARK or PARKING. The standing of a vehicle, whether occupied or not, otherwise than a temporary
stopping of such vehicle for the purpose of and while actually engaged in loading or unloading
passengers, merchandise or other cargo, except an involuntary stopping of such vehicle by reason of
mechanical failure or direction of a police officer.
PARKING STALL or PARKING SPACE. That portion or section of a roadway adjacent to the
curbing or edge, set apart, marked and bounded by lines painted or marked upon the surface of the
roadway and extending into the roadway for the use of parking vehicles; or that portion of any alley
marked by official signs showing such space to be a parking zone.
PEDESTRIAN. Any person afoot.
POLICE OFFICER. Any member of the Police Department of the city authorized by law to make
arrests in traffic offenses.
PUBLIC PROPERTY. Property owned or leased by the city or political subdivision of the city.
RESIDENCE DISTRICT. The territory contiguous to and including a street not comprising a
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. '· ~
Page 3 of3
S5
businus district, when the· property on such street for a distance of 300 feet or more is, in the main, ·
improved with residences or residences and buildings in use for business.
RIGHT-OF-WAY. The privilege of immediate use of the roadway.
ROADWAY. That portion of a street improved, designed or ordinarily used for vehicular travel. In
the event a street includes two or more separate roadways, the term ROADWAY shall refer to any such
roadway separately but not to all such roadways collectively.
· SAFETY ZONE. The area or space officially set apart within a roadway for the exclusive use of
pedestrians and which is protected or is so marked or indicated by adequate signs as to be plainly visible
. at all times while set apart as a safety zone.
SIDEWALK. That portion of a street between the curb lines, or the lateral lines of a roadway, and the
adjacent property lines intended for the use of pedestrians.
STOP. When required, means complete cessation of movement.
STOP, STOPPING or STANDING. When prohibited, means any stopping or standing of a vehicle,
whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance
with the directions of a police officer or traffic-control sign or signal.
STREET or HIGHWAY. The entire width between the boundary lines of every way publicly
maintained when any part thereof is open to the use ofthe public for purposes ofvehicular travel.
TRAFFIC. Pedestrians, ridden or herded animals, vehicles and other conveyances, either singly or
together, while using any street for purposes of travel.
TRAFFIC-CONTROL SIGNAL. Any device, whether manually, electrically or mechanically
operated, by which traffic is alternately directed to stop and to proceed.
TRUCK. A motor vehicle designed primarily for the transportation of cargo.
U-TURN. The turning or causing the turning of a vehicle, so that when such turn is completed that
such vehicle will be headed in the opposite direction from that in which it was headed before such
turning was begun, whether or not such vehicle is pulled into a driveway or any space beyond the curb
line of the street.
VEHICLE. Any device in, upon or by which any p~rson or property may be or is transported upon
any street within the corporate limits of the city, except devices moved by human power or used
exclusively upon stationary rails or tracks.
('87 Code,§ 17-151)
Statutory reference:
Similar provisions, see Tex. Rev. Civ. Stat., Art. 6701d, §§ 1-20;
Uniform Traffic Act; see Tex .. Rev. Civ. Stat., Art. 670ld
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. ' . Page I of I
§ 7Lt.i30 STOPPING AND TURNING SIGNALS.
(A) General.
( 1) When any other traffic may be affected by such movement, no person shall turn any vehicle
without giving a signal of his or her intention to turn right or left. Such signal shall be given
continuously during not less than the last 100 feet traveled by the vehicle before turning.
(2) No person shall stop or suddenly decrease the speed of a vehicle without first giving an
appropriate signal to the driver of any vehicle immediately to the rear, when there is opportunity to give
such signal.
(3) A stop or turn signal required by this section shall be given by means of the hand and arm or
by a signal lamp or mechanical signal device of a type approved by the State Department of Public
Safety; provided however, that when the body of a vehicle or the body and load of a vehicle projects 24
inches or more to the left of the center of the steering wheel, or under any condition when a hand and
arm signal would not be visible both to the front and rear of the vehicle, the vehicle must be equipped
with and the signals must be given by such turn-indicating lamp or device.
(4) The signal lamps provided for in this section shall be used to indicate an intention to turn,
change lanes or start from a parked position and shall not be flashed on a moving vehicle as a courtesy
or "do pass" signal to operators of other vehicles approaching from the rear.
('87 Code,§ 17-207)
(B) Manner of giving with hand and arm. All signals required by division (A) of this section, when
given by hand and arm, shall be given from the left side of the vehicle in the following manner and such
signals shall indicate as follows:
(1) Left turn. Hand and arm extended horizontally;
(2) Right turn. Hand and arm extended upward;
(3) Stop or decrease speed. I-Iand and arm extended downward.
C87 Code,§ 17-208)
Statutory reference:
Similarprovisions, see Tex. Transportation Code,§§ 545.103 through 545.107
'"':.·'
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A P P E N D I X
T A B 2
R E L A T 0 R I s S U P P L E M E N. T A L
D I A G R A M 0 F
N I N T H S T R E E T A N D M A R G A R E T D R I V E
C 0 N F I G U R A T I 0 N
(REFERENCED IN RELATOR'S ORIGINAL PETITION FOR WRIT OF MANDAMUS, PAGES 30- 35)
FOR "Y" "y" THEORY HOLD DIAGRAM WITH NORTH, ON THE RIGHT, POINTING TO GROUND.
FOR BOOT, HEEL,ANKLE, THIGH THEORY HOLD WITH NORTH POINTING UP AND ----- LINES.
i
I
-
:::r-f
------·----·-·---- -------
+I
I
t
---·~--~
I. ....,..t .......,
(t_"'
·-...._____
\t/0 0 D c:• , -.-·-~
4---- 1 (Bo£5T) ··--... ····-·---
! _K:_ _ ~ ---_)~--~-~--- ___ I ARCH . . . .,....._
A P P E N D I X
T A B 3
S I M 0 N R A Y P 0 R T E R
0 F F I C E R A R R E S T E D
0 N
F E L 0 N Y P E R J U R Y C H A R G E
Officer arrested on
felony erjury charge
Officer Simon F~ay Porter
Posted: Tuesday, August 24, 2010 12 00 am
By CASEY BUECHEL- Tribune Staff Writer
A Mount Pleasant Police Department officer has been arrested on a local felony charge of aggravated
perjury. Simon Ray Porter, 25, of Mount Pleasant, turned himself over to and was arrested by MPPD officers
Lt. Kyle Holcomb and Sgt. Ray Barrett Monday afternoon at the office of Pet. 2 Justice of the Peace Paula
Dyke, who arraigned Porter in her office and set his bond at $10,000.
The arrest came after Porter was indicted on the charge presented to the Titus County Grand Jury Monday
morning by Titus County District Attorney Charles "Chuck" Bailey. Warrant number CR17064was issued for
his arrest Monday afternoon.
After his arrest and arraignment at Dyke's office at approximately 5:15p.m., Holcomb transported Porter to
the Titus County Jail where he paid his bond and was released after going through the booking process ..
Porter had been on paid administrative leave for several weeks after the MPPD found that he was the
subject of ;:m itwestigation.
'The police department cannot comment on this c11se as it is not our case io comment on," said C.::pta:n ~ob
Vine in a press release issued Monday afternoon.
Vine referred any further comment to Bailey, saying only, "What we do know is that Porter is now awaiting a
trial date.
"We, as a department, recognize the severity of this charge and appreciate the implications it carries with it.
"When we first learned of the allegation against Porter, an internal affairs investigation was opened
immediately and he was placed on administrative leave," said Vine.
"As a result of this investigation, and the indictment handed down today, Porter's employment with this
department has been effectively terminated," Vine added. ·
"Our mission statement is 'to protect our citizens and maintain law enforcement excellence' and for those
officers and employees who are still standing tall and fulfilling their oath of office, I thank the citizens of this
city for giving us the opportunity to do just that," said Vine.
"I concur with Captain Vine's assessment of arrest and investigation into Simon Porter yesterday," said
MPPD Chief J.C. "Jay" Burch in a telephone interview Tuesday morning.
61
According to the indictment, number CR 17064, Porter is accused of issuing a false statement under oath in
the jury trial of Ruth Ann Sharper, cause numbers 15,529 and 15, 530, which were the trials Sharper faced
before a jury on, "two indictments charging her with possession of marihuana and possession of a controlled
substance."
During the trial, Porter allegedly quoted a statement made by Sharper that, "she stated to me that she
planned to tell them that she was just holding it. .. ," while he talked with her at the Titus County Jail on
December 9, 2009.
Bailey, in a telephone interview Tuesday morning, declined to release the name of the agency who
investigated the charge against Porter.
Reached Monday afternoon by phone, Porter himself declined to comment on the charge
and indictment.
NO.:
--------------------------------------------
IN RE TIMOTHY LEE ROBINSON IN THE COURT OF CRIMINAL APPEALS
RELATOR I PRO-SE
FOR THE STATE OF TEXAS, AUSTIN
UNSWORN DECLARATION
I, TIMOTHY LEE ROBINSON, TDCJ-ID NO. 1633311, RELATOR PRO-SE, for the matters
stated herein, to include: RELATOR'S ORIGINAL PETITION FOR WRIT OF MANDAMUS with
attachments TAB(S) l-3; CERTIFICATE OF SERVICE; and, AFFIDAVIT OF COMPLAINT FOR "A
CONSPIRACY TO UNLAWFULLY AFFIRM THE CONVICTION TO CONFINE RELATOR,"
RELATOR being confined in THE STATE OF TEXAS entitles the use of this UNSWORN
DECLARATION,under both, FEDERAL LAW (28 USCA § 1746) and STATE LAW (VTCA CIV PRAC AND
REM.S CODE§§§ 132.001- 132.003), to declare under penalty of perjury, and RELATOR
DOES SO DELARE, IN PLACE OF; A WRITTEN DECLARATION, VERIFICATION, CERTIFICATION, OATH,
OR AFFIDAVIT SWORN BEFORE A NOTARY PUBLIC, that the facts deposed, facts of record
claimed herein, to include documentation listed supra, are true and correct facts
d(O>posed and facts of record claimed, under penalty of perjury by this RELATOR.
THEREFORE, through this "UNSWORN DECLARATION," BY THE LAWS OF TEXAS, the facts
deposed, claimed of record, and as stated, ARE TO BE CONSIDERED VERIFIED, CERTIFIED,
AND SWORN TO UNDER PENALTY OF PERJURY BY THIS RELATOR PRO-SE, AND ARE NOT ATTAINABLE
DUE TO INCARCERATION.
FURTHER RELATOR SAYETH NOT.
THIS UNSWORN DECLARATION LISTING ALL DOCUMENTAT]ON ATTACHED ARE SIGNED AND TO BE
CONSIDERED FIELD THIS l.a_ DAY OF _ML--I.ALA.l..R~C_,t\'-'-----------' _ , · ~\5
\ ~f'11)ci~ ~ \lo~33\\ ¥t
TIMOTHY LEE ROBINSON # 1633311
POWLEDGE UNIT T/C 0 - 22
1400 FM 3452
PALESTINE, TEXAS 75803 - 2350
l
NO.:
IN RE TIMOTHY LEE ROBINSON IN THE COURT OF CRIMINAL APPEALS
RELATOR / PRO-SE
FOR THE STATE OF TEXAS, AUSTIN
CERTIFICATE OF SERVICE
I, TIMOTHY LEE ROBINSON, RELATOR PRO-SE h rein, CERTIFY that the following entities
have been served with: RELATOR'S ORIGINAL PET TION FOR WRIT OF MANDAMUS with attachments
TAB(S) l-3; UNSWORN DECLARATION; AFFIDAVIT OF COMPLAINT FOR "A CONSPIRACY TO UNLAWFULLY
AFFIRM THE CONVICTION TO CONFINE RELATOR," an this CERTIFICATE, BY U.S. MAIL delivery
first class postage pre-paid:
ATTORNEY GENERAL'S OFFICE, CRIMINAL PROSECUTI N DIVISION, P.O. BOX 12548, AUSTIN, TEXAS
78711 - 2548;
HON. ABEL ACOSTA, CLERK, TEXAS COURT OF CRIMI AL APPEALS, P.O. BOX 12308, AUSTIN,
TEXAS 78711;
HON. LISA C. McMINN, STATE PROSECUTING ATTORNEY, P.O. BOX 13046, AUSTIN, TEXAS 78711;
COURT OF APPEALS, SIXTH APPELLATE DISTRICT OFITEXAS, BI-STATE JUSTICE BLDG., 100 N.
STATE LINE AVE. #20, TEXARKANA, TEXAS 75501; l
HON. DISTRICT JUDGE, 76th JUDICIAL DISTRICT c¢URT, P.O. BOX 1306, MOUNT PLEASANT, TEXAS
75456 - 1306; and,
HON. CHARLES C. BAILEY, TITUS COUNTY DISTRICT:ATTORNEY, P.O. BOX 249, MOUNT PLEASANT,
TEXAS 75456;
therefore by this CERTIFICATION all documentation listed herein are true and correct
copies of the foregoing instruments.
SIGNED AND SUBMITTED THIS~ DAY OF _ML-..l.L.f\~~~~-'\-\~------' li!IJ!ili'j. d()\5
:Lxncihu~ aklbJn~urn* \lo3~ \ I
TIMOTHY LEE ROBINSON #1633311
POWLEDGE UNIT T/C 0 - 22
1400 FM 3452
PALESTINE, TEXAS 75803 - 2350
1
IN THE MATTERS OF: IN THE ATTORNEY GENERAL OFFICE FOR
TIMOTHY LEE ROBINSON v THE STATE OF TEXAS
CAUSE NO . ( S) :
76th DISTRICT TRIAL COURT: CR-16,097 & (A/B); THE STATE OF TEXAS, AUSTIN.
TEXARKANA SIXTH COURT OF APPEALS: 06-09-00225-CR;
COURT OF CRIMINAL APPEALS: PD-0238-ll &
WR-80, 739-01 & 02
******************************************
THE STATE OF TEXAS § § § § §
COUNTY OF ANDERSON § § § § §
*******************************************
i
AFFIDAVIT OF COMPLAINT FOR
A CONSPIRACY TO UNLAWFULLY
i~FFIRM THE CONVICTION
TO CONFINE
i
RELATOR
I
i
I
My name is TH10THY LEE ROBINSON, TDCJ-ID Ne. l63331L AFFIANT PRO-SE for the
matters as listed above and deposed herein, cu'rrently confined 1n the TDCJ-ID POWLEDGE
UNIT T/C, DORM - 0, BUNK 22, located at 1400 FM 3452, ANDERSON COUNTY, PALESTINE, TEXAS
75803 - 2350.
AFFIANT is:
l) A UNITED STATES citizen born in LUBBOCK, TEXAS on 3/20/1978, current age 36 years old;
2) Capable to accurately perceive, recall, recount the facts based on personal knowledge
as said facts are true and correct; and,·
3) Competent to testify to the matters of fact.
AFFIANT for the matters stated herein has included as EXHIBITS true and correct
copies of the self p:t:ovinq originals, as follows:
1) RELATOR'S ORIGINAL PETITION FOR WRIT OF MANDAMUS with attachments TAB(S) l - 3;
2) CERTIFICATE OF SERVICE;
3) UNSWORN DECLARATION; and,
4) All other documentation of' relevance is NOT ATTAINABLE DUE TO CONFINEMENT and REQUEST
JUDICIAL NOTICE BE TAKEN.
AFFIANT being confined in THE STATE OF TEXAS entitles the use of the attached
UNSWORN DECLARATION; under both, FEDERAL LAW (28 USCA § 1746) and TEXAS LAW (VTCA CIV
PRAC AND REM.S CODE§§§ 132.001- 132.003); "IN PLACE OF: A WRITTEN DECLARATION,
VERIFICATION, CERTIFICATION, OATH, OR AFFIDAVIT SWORN BEFORE A NOTARY PUBLIC;" to
declare under penalty of perjury that the facts deposed, facts of record claimed herein,
1
with documentation of fact listed supra, are true and correct facts deposed, and facts
of record claimed, under penalty of perjury by this AFFIANT.
THEREFORE, BY THE LAWS OF TEXAS, the facts deposed, claimed of record, listed in
attached documentation, and as claimed herein ARE TO BE CONSIDERED VERIFIED, CERTIFIED,
AND SWORN TO UNDER PENALTY OF PERJURY BY THIS AFFIANT PRO-SE.
AFFIANT asserts unde~ FEDERAL LAW circumstantial evidence is sufficient to prove
existance of CONSPIRACY. Agreement may be infered from concert action among alleged
participants and voluntary participants may be infered from a collation of circumstances.
18 USCA 371; see also, US v THON, 917 F 2d 170, Id.
PARTICIPANTS listed herein have chosen to enter into A CONSPIRACY TO UNLAWFULLY
CONFIRM THE CONVICTION TO CONFINE RELATOR (AFFIANT), whether by calculated intent and
design, or by their combined error, incompetanae, apathy and ignorance, have collectively,
whether, either through their acts of commission and/or ommission, have entered into
a CONSPIRACY to subject this AFFIANT to CONSTITUTIONAL DEPRIVATIONS AND INJURIES thereby
inflicting grievous losses of the AFFIANT'S protected life, liberty and property
interest by and through PARTICIPANTS blatant violations and lack of requisite process
before depriving AFFIANT of those interest.
PARTICIPANTS collective acts, as combined in PARTICIPANTS CONSPIRACY and as utilized
in a judicial process that as desigped, structured, implemented as currently practiced
1n PARTICIPANTS oppressive, abusive, and grossly prejudicial application to this AFFIANT
is totally lacking in even a facsimile of reasonable procedural safegaurds that are
CONSTITUTIONALLY sufficient to protect against unjustified deprivations of AFFIANT'S
FfJNDEMENTAL RIGHTS and RIGHT TO DUE PROCESS. (
I
PARTICIPANTS collect'ive ACTS/CONSPIRACY have resulted in violations that rise to
the level of A SUBSTANTIAL DEFECT- Thereby subjecting AFFIANT to the deprivation of
AFFIANT'S FUNDEMENTAL DUE PROCESS RIGHTS~ Resulting in A COMPLETE MISCARRIAGE OF
JUSTICE that is inconsistant withFAIRPROCEDURE; To THE SUBSTANTIAL DETRIMENT AND
INJURY OF THIS AFFIANT.
PARTICIPANTS hereof are criminally responsible for "THE CONSPIRACY" while acting
with the intent to promote and/or assist "THE CONSPIRACY ALLEGED." PARTICIPANTS have
solicited, encouraged, directed, aided, and/or attempted to aid the OTHER PARTICIPANTS
in the commission of SAID CONSPIRACY; and/or having A LEGAL DUTY TO PREVENT the
commission of SAID CONSPIRACY, PARTICIPANTS did act with intent to promote and/or
assist SAID CONSPIRACY, THEREBY, PARTICIPANTS FAILED to make A REASONABLE EFFORT TO
PREVENT THE COMMISSION OF SAID COMSPIRACY. (TEXAS PENAL CODE ('I'PC) § 7.02).
AFFIANT ASSERTS, it is NO DEFENSE that THE PARTICIPANTS belong to a CLASS OF PERSONS
THAT BY DEFINITION OF THE OFFENSE IS LEGALLY INCAPABLE OF COMMITTING SAID CONSPIRACY
IN AN INDIVIDUAL CAPICITY; and/or that SAID PARTICIPANTS FOR WHOSE CONDUCT THE OTHER
PARTICIPANTS ARE CRIMINALLY RESPONSIBLE ARE IMMUNE FROM PROSECUTION. (TPC § 7.03).
2
PARTICIPANTS, listed b•2low, ·as PUBLIC SERVANTS have chose to enter into "A
CONSPIRACY 'ID UNLAWFULLY AFFIRM THE CONVICTION 'ID CONFINE RELATOR (AFFIANT)," with the
INTENT, KNOWLEDGE, AND RECKLESS voluntary engagement in conduct that include overt acts
and ommissions infered from the conscious disregard for the substantial and
unjustifiable risk that AFFIANT COULD BE m~LAWFULLY CONVICTED AND IMPRISONED THROUGH A
VIOLATION·OF SAFEGAURDS AGAINST UNLAWFUL TRAFFIC STOPS, PERJURED TESTIMONY, INEFFECTIVE
ASSISTANCE OF COUNSEL (TRIAL I HIRED APPELLATE I APPOINTED APPELLATE), MALICIOUS
PROSECUTION, PROSECU'IDRIAL MISCONDUCT, DENIAL TO FAIR AND IMPARTIAL TRIAL, AND ARBITRARY
ABUSIVE AUTHORITY OVER: SUPPRESSION HEARINGS, ISSUANCE OF ABATEMENTS, OPINIONS, DRDERS,
AND .MANDATES. This is a risk of such a degree that its disregard constitutes a gross
f::\-
x devaition from the standard that a PUBLIC SERVANT would exercise under all circumstances
as viewed from this AFFIANT'S standpoint.
PARTICIPANTS
EX - MOUNT PLEASANT, TEXAS POLICE OFFICERS:
DETECTIVE CESAR MUNOZ, CONTACT UNAVAILABLE DUE TO INDICTMENT, ARREST AND CONVICTION FOR
FELONY DRUG CHARGES; and,
OFFICER SIMON RAY PORTER, CONTACT UNAVAILABLE DUE TO INDICTMENT, ARREST AND CONVICTION
FOR FELONY PERJURY CHARGES. See attached TAB 3.
MOUNT PLEASANT, TEXAS DISTRICT ATTORNEY AND TRIAL COUNSEL FOR APPELLEE:
CHARLES C. BAILEY, P.O. BOX 249, MOUNT PLEASANT, TEXAS 75456; and,
ASSISTANT DISTRICT ATTORNEY:(APPELLEE BRIEF I APPELLEE SUPPLEMENTAL BRIEF ON REMAND):
DAVID COLLEY, TX. BAR NO. 24007027, PHONE: (903) 577-6726; FAX: (903) 577-6729.
AFFIANT'S APPOINTED TRIAL ATTORNEY:
SAM W. RUSSELL, P.O. BOX 1223, MOUNT PLEASANT, TEXAS 75456-1223.
76th DISTRICT TRIAL JUDGE (DECEASED):
JIMMY LEON WHITE, P.O. BOX 1306, MOUNT PLESANT, TEXAS 75456-1306.
AFFIANT'S CONTRACTUALLY HIRED APPELLATE ATTORNEY:
L. CHARLES van CLEEF, TX. RAR NO. 00786305, P.O. BOX 2432, N. CENTER STREET, LONGVIEW,
TEXAS 75606-1432; PHONE: (903) 248-8244; FAX: (903) 248~8249.
THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS, AT TEXARKANA: (ORIGINAL I REMAND)
BEFORE MORRISS, C.J., AND CARTER AND MOSELEY, J.J.; MEMORANDUM OPINION BY JUSTICE
CARTER, BI-STATE JUSTICE BLDG., 100 N. STATE LINE AVE. #20, TEXARKANA, TEXAS 75501.
STATE PROSECUTING . ATTORNEY:.
LISA C. McMINN, TX.' RAR NO. 13803300, P.O .. BOX 13046, AUSTIN, TEXAS 78711, PHONE: (512)
463-1660; FAX: (512) 463-5724; and,
ASSISTANT STATE'S ATTORNEY: (PETITION FOR DISCRETIONARY REVIEW (PDR))
3
JOHN R. MESSINGER, TX. BAR NO. 24053705.
TEXAS COURT OF CRIMINAL APPEALS, AT AUSTIN:
CLERK OF THE COURT: LOUISE PEARSON; and,
UNKNOWN JUSTICE( S) DELIVERYING OPINION IN, PD-0238-11, from TITUS COUNTY- 06-09-00225-CR;
P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711.
In the matter and means explained thus far, the PARTICIPANTS listed have chose to
enter into A CONSPIRACY TO UNLAWFULLY AFFIRM THE CONVICTION TO CONFINE RELATOR (AFFIANT),
either by calculated intent and design, or by their combined error, incompetance,
apathy and ignorance, have collectively, whether, either through their acts of commission
and/or ommission, have entered into the said CONSPIRACY deposed as follows· by this
AFFIANT'S COMPLAINT:
AFFIANT is presently confined on the testimony of two MOUNT PLEASANT POLICE OFFICERS,
specifically, DETECTIVE CESAR MUNOZ, "ONLY WITNESS TO TESTIFY AT SUPPRESSION HEARING,"
and OFFICER SIMON RAY PORTER, who where investigated, indicted, arrested, and convicted
for perjury and drug charges in the time frame of this AFFIANT'S, TRIAL, CONVICTION,
APPEAL, REVERSAL OF CONVICTION, APPEAL BOND RELEASE, AND AFFIRMATION TO RE-INSTATE
CONVICTICDN BY~ MEANS OF A-MISLEADING STATEMENT IMPLIEDBY TITUS'COUNTY ASSISTANT DISTRICT
ATTORNEY, DAVID COLLEY, AND LACK OF EFFECTIVE COUNSEL DUE TO RELEASE OF CONTRACTUALLY
HIRED APPELLATE COUNSEL BY 76TH TRIAL', COURT WITHOUT NOTICE AND APPOINTMENT OF APPELLATE
COUNSEL AT APPEAL BOND HEARING-WHO FILED "NOTHING."
AFFIANT DEPOSES:
On August 25, 2008, AFFIANT was returning to MOUNT PLEASANT, TEXAS after a few days
of.visitation to various places. AFFIANT was on his way to LAKISHA WILLIAMS residence
on MARGARET DRIVE, AFFIANT'S girlfriend. LAK:E:SHA had rented the car for the trip, a
black Dodge Charger. Upon arrival to MOUNT PLEASANT we came in on NINTH STREET which is
a residential street of black top with a width that if cars are parked on both sides
at a residence you have to get in the middle of the street to continue down the street,
and if a car i-s coming from the other direction when cars are parked at two opposite
residences one will have to wait for the other to pass between the parked cars. This
is a description of both NINTH STREET and MARGARET DRIVE as to their width. Neither
street have a center line or stripe in the middle of the street. This is a description
for the configuration of both streets.
AFFIANT drove down NINTH STREET following the direct course of the street that
curves into MARGARET DRIVE. At this CURVE there are NO MERGE SIGN, STOP SIGN, YIELD
SIGN, STOP LIGHT, FLASHING YELLOW LIGHT, NO INDICATION TO BE AN INTERSECTION, "ONLY A
CURVE INTO MARGARET DRIVE tVFIEN COMING FROM NINTH STREET." However, a .person coming up
MARGARET DRIVE toward._NIN'I'H·_,STREET has a differ~n:t_::p~r9p~ctive .as· there are two options.
4
MARGARET DRIVE corning toward NINTH STHEET comes to a dead end as if the planners of
this subdivision had or has intention to extend at a later date. This dea•J end is
wi thi~1 150 to 200 feet of the curve that continues from !IJARGAHET OlUVE changing into
NINTH STREET. This dead.end has one home·on each side of the street, with only one home
having an accessible driveway to !JJARGAH.ET DRIVE at this dead end. At thiis dead end
there is a ba:.::-acade withtrees grown up behind it, movement on this dead end other than
the two residents of either side of this dead end would:be questionable. Therefore, as
stated , there a1.·e two options when on MARGARET DRIVE coming toward NIN'l"H STREET, you
either continue going strai•;:Jht corning to a dead end in front of the residence on the
right with a baracade in front of you, or you curve to the left which is now to be
considered NINTH STREET as in this curve the STREETS CHANGE NAMES with the only signs
being the street names MARGARET DRIVE and NINTH STREET or visa-versa.
AFFIANT therefore took: the:' curve where the streets change names from. NINTH STREET
and was now on l'IARGARET DRIVE going to LA1traight at this AFFIANT shouting for
everyone to put their hands outside the vehicle, to which all comply. MUNOZ, alone at
this moment walks up to the vehicle, gun still drawn, shouting for AFFIANT to step
out of the vehicle with his hands in the air. Z\FF1ANT complies, 3.nd at this time MUNOZ
takes c., black plastic tio.=~ strap pulling AFFIANT'S hands behind him, telling :WFIANT he
is being detained. At this moment a police car pulls up and OFFTCER SIMDN RAY PORTER
comes up to MUNOZ, with MUNOZ telling OFFICER PORTER to take AFFIANT toward the homes
front door from -::he drivers door of the car, and all,_of a sudden, now MUNOZ smells
marijuana, while yet another police car arrives with OFF1CER NICHOLS being directed by
DETECTIVE MUN02 to remove the pass·2ngers from the car and 'detain them so he can search
the car for drugs, assuming h2 has probable cause due to his assumed smell of marijuana
and further claims of finding "RESIDUE AND LEAFY SUBSTANCE" RE'rAINL\lG NOTHING AS
EVIDENCE FOR PROBABLE CAUSE, NOR DID MUNOZ ISSUE ANY FORM OF CITATION AND/OR TICKET,
NOR HAS THERE BEEN 'ANY PROOF OF A TRAFFIC VIOLATION' FOR WHICH THIS ASSUMED TRAFFIC
STOP WAS TO BE MADE." MUNOZ makes an extensive search of the vehicle for which he finds
nothing inside the vehicle. After this lengthy and extensive search of the vehicle
which reveals NOTHING, while ~1UNOZ has yet to acknm1ledge his reasoning for this
unauthorized search and detainment of AFFIANT, LAKJSHA WILLIAMS, AND AFFIANT'S BROTHER,
TRACY HARRIS, AFFIANT has continually been detained a good length from -::he car on the
drivers side and his passengers have been detained as well _in cite of all officers.
5
MUNOZ afte~ searching for a good length of time with other officers on the scene
now steps to the fr.:mt of the vehicle he has been searching and makes a phone call just
out of hearing range for this AFFIANT to distinguish what the conversation was detailing.
However, after hanging up on this call he(!VIUNOZ) announces, "I kno~:~ its here. Where is
it ?" No one replies to his question, so he continues the search again. After a little
while longer DETECTIVE ROBERT VINE pulls up to the scene across the street and ask
"Whats that unrler the car ?" !VIUNOZ ha.s searched Lhe car doors wide open, trunk open,
hood open, fot n~arly 45 minutes to one hour finding nothing, makes a phone call and
claims I know"its .here, now another DETECTIVE arrives and the drugs appear under the
car, on the passengers side where AFFIANT has never been through the duration of this
search. AFFIANT \-las detain·~d the full duration on the drivers side of the car, with his
hands tie strapped behind him, and under full observation of nu;nerous officers on the
scene, and was at NO TIME i\NYW::-JERE NEAR WHERE 1'HE DRUGS WERE FOUND UNDER THE CAR. A:O::.L
THE SEARCH IS ON THE STATE'S EXHIBIT 3 (VIDEO) 1 ·REVEALING MUNOZ VEHICLE DESCRIPTION 1
POSITION OF LAKISHA WILLIAMS AND TRACY HARRIS (PASSENGERS) 1 AND NUMEROUS OFFICERS AT
THE SCENE, WITH AFFIANT OUT OF THE FRAME OF RECORDING TO THE LEFT OF THE SCENE, AND AT
"NO TIME DURING THE SEARCH WAS AFFIANT OBSERVED NEAR THE CAR ESPECIALLY, NEAR THE
PASSENGERS SIDE REAR OF THE CAR."
AFFIANT AND PASSENGERS upon the officers find of the drugs at the rear passengers
side of the car, were taken to the police st~ttion. PI\SSENGERS WERE QUESTIONED and
later released. AFFIANT was questioned and asked to sign a typer3 out confession by
OFFICER .SIMON RAY PORTEH and DETECTIVE CESAH MUNOZ. AFFIANT DECLINED ro SIGN CONFESSION
and was arrested for "POSSESSION WITH INTENT TO DELIVER, CXlCAINE," without ANY CITATION
OR TRAFFIC TICKET FOR "ANY TRAFFIC VIOLATION~"
AFFIANT was appointed TRIAL ATTORNEY SAtVJ W. RUSSELL and shortly after bonded out
of jail. A short time after bonding out of jail AFi''IANT went to talk with appointed
I
attorney'in his office in MOUNT PLEASANT. Durirg this visit AFFIANT '.·Jas informed of
DISCOVERY ITEMS, such as DETECTIVECESAR MUNOZ'S POLICE REPORT AND THE.POLICE VIDEO
I ,:r.:
THE STATE INTRODUCED AS ST.~TE 'S EXHIBIT 3. ATTORNEY RUSSELL showed the video to th~
AFFIANT then read DETECTIVE CESAR MUNOZ'S POLICE REPORT which specifically stated MUNOZ
HAD BEEN WAITING FOR 2 DAYS FOR AFFIANT, when this AFFIANT heard this he ask, "Let me
r-ead the report," and attorney complied. The next QUESTION WAS TO ATIORNEY, "IF HE HAD
BEEN WAITING 2 DAYS WHY DIDN'T HE GET A SEARCH WARRANT?" Attorney agreed this.was a
VERY GOOD QUESTION. This question and the observation that AFFIANT is CLEAIU.Y NOWHERE
IN VIEW OF THE VEHICLE BEING SEARCHED, LET ALONE NOWHERE NEAR THE PASSENGERS SIDE REAR
OF THE CAR WHERE THE DRUGS WERE FOUND 1 AND NO PROOF THAT A TRAFFIC VIOLATION HAD BEEN
COMMITTED 1 NO CITATION 1 TICKET OR VIDEO, NOR WAS ANY PRESERVATIOO OF ASSUMED PARAPHERNALIA
ASSUMEDLY OBSERVED AT THE SCENE TO CLAIM PROBABLE CAUSE TO JUSTIFY SEARCH, was the
reasoning to pursue a trial for an unlaw.t:ul arrest, search and seizure, A'rTORNEY AGREED.
Furthermore, while AFFIANT does consider LAKISHA 'VVILLI.Z\MS his girlfriend and does stay
at HER RESIDENCE-from time to time AT 511 MARGARET DRIVE, MOUNT PLEASAN'r, "rEXl\S,
AFFAINT 1 S RESIDENCE IS LOCATED AT 1006 EAST FIRST STREET, MOUNT PLEASANT, TEXAS as
DRIVER 1 S LICENSE NO. 24796126 \Jill confirm, as well as numerous persons will attest.
AFFIAN'J:' asserts, from the repeated structuring of numerous answers to the questions
COnCerning and in reference tO 1 Street CQnfigm.-ation J dSSUmed tra::fiC Violation and
~1eed for turn signal, as recalled .seemed to be preparatory in nature, as if nothing
more than a half truth prepared for specific questions. I t was revealed throughout the
record MUNOZ was less than truthful in his answers and credibility is clearly in
question when their was an investigation, indictment, arrest, and conviction for drug
charges . while AFFIANT 1 S triaL conviction, appeal, etc. are still i!1 pr.y.:ess. Fur·ther
the testimony of OFF'ICER SIMON RAY PORTER is clearly in question when his investiga.ti::m,
indictment, a:c-rest, -3.nd conviction for felony perjury w€'l:"e revealed.
AFFIANT asserts at the SUPPRESSION HE.ZI.~TNG the statement of this AFFIANT was not
signed by the AFFIANT, just as it was revealed that the .statements of LAKLSHA wi.•.:.LIAMS
and IRACY HARRIS had been FORGED WITH SIGNATURES COMPAHED BY THE JUDGE DID NOl' MATCH,
AND WERB NOT ALLOWED TO BE ADMITTED AS EVIDENCE .. STATE'S EXHIBIT 1 ".mmE TYPED STATEMENT
WAS NOT SIGNED NOR GIVEN BY THIS AFFIANT.
AFFIAN'.i.' ::J.sserts as recalled, at trial, the jury "tJaf3 n<)t clear as to the traffic
stop du:cing deliberation and asked to see the video of the traffic stop, court took
a recess. After some time had passed P1FFIANT and members of the family d12cided to go
back into the court mom. This attempt was ob.:.;tructed by C:J. balliff stating >Ve were not
allowed in yet. A few moments later we were allowed to go into the court room and as
we entered obs·2rved MUNOZ exiting the jury room. When balliff was qu2stioned about
this obs;~rvation he stated MUNOZ had to show the jurors how to operate the LAP TOP.
AFFI.ZI.NT complained that MUNOZ was not to be allowed j_n there with the jur·:::>e 1 s, to no
avail, wi"ch ATTORNEY SAM W. RUSSELL , addre:3sing this very issue with DISTRICT
NITORNEY CHAi~LES c. i3AILEY, stating "THIS IS NO'r 'ill BE HAPPENING," yet it went no
further than the addressal. NO DVD WAS EVER ENTERED AS STATE'S EVIDENCE:OF A TRAFFIC
i
STOP, SO WHAT WAS MUNOZ OOING ?
with all these irreqularities and improprieties AFFIANT ·r~as eventually convicted,
sentenced, and subjected to confinement in the TDCJ-ID.
AFFIANT hired APPELLATE ATrOHNEY' L. CHARLES van CLEEF, contractually .ta see to the
APPEAL PROCESS THROUGH ITS ENTIRETY. AJ?FIANT 1 S BRIEP. was filed at an uncet-tain date
•o~i th submission to CHARLES C. BAILEY on FRIDAY JULY 23, 2010.
AFFIANT has attached, inter alia, APPENDIX, T.AB 3, OFFICER ARRESTED ON FELONY PEi:UURY
Cf'J.I\RG.C. o?ag•.:o 2 states, "Acco;cding to the i.n::Ectm2nt, number CRl7064, Porter is accused
of issuing ::1 false statement under oath in the jury trial of 8UTH .1\I~J :3~i\RPER, ... while
7
71
he talked with her at the TITm·; COUNTY JAIL on DECEMBER 9, 2009," noLqu.ite 3 months
after AFFIANT'S TRiil.L by jury to which OFFICER SIMON RAY PORTER ga'Je testimony as a
primary wi tnes~;; ~;,It is also an impo;::-tant fact as RUTH ANN SHARPER is the AUNT of this
AFFIANT. CHARLES C. BAILEY, TITUS COUNTY DISTRICT ATTORNEY, was aware of the agency
that made this investigation and as DISTRICT ATTORNEY was aware of any indictment
proceedings before the GRAND JURY in the cases of DETECTIVE CESAR MUNOZ and OFFICER
SIMON RAY PORTER.
AFOREMENTIONED in mind, AFFIANT asserts that the filing of APPELLEE'S BRIEF on
ORIGINAL APPEAL was constructed, having full knowledge of both.DETECTIVE CESAR MUNOZ'S
and OFFICER SIMON RAY PORTER'S questionable reliability, trustworthiness, and ethical
procedures, by the same DISTRICT ATTORNEY'S OFFICE who was to recuse themselves as a
prejudice toward AFFIANT was established in and through the officers' testimonies for
a TRAFFIC VIOLATION, NEVER COMMITTED AND/OR ESTABLISHED AS COMMITTING, WITH NO TRAFFIC
TICKET, CITATION, OR VIDEO TO ESTABLISH TRAFFIC VIOLATION FOR A LAWFUL TRAFFIC STOP TO
MAKE A LAWFUL SEARCH AND SEIZURE. APPELLEE'S ORIGINAL BRIEF was: FAXED to HIRED APPELLATE
ATTORNEY CHARLES van CLEEF, AUGUST 24 2010, and,filed and received in THE SIXTH COURT
OF APPEALS, at TEXARKANA, AUGUST 26, 2010, while OFFICER SIMON RAY PORTER, THE OFFICER
ARRESTED ON FELONY PERJURY CHARGE, was POSTED IN THE TRIBUNE PAPER, AUGUST 24, 2010-
In the APPEAL BRIEFS, THE APPELLEE'S and THE APPELLANT'S, there are many discrepancies
ased :tn a deceptive manner. The APPELLEE for instance says MUNOZ attempted a traffic
stop by turning on his lights and activated his siren. APPELLANT'S BRIEF however states
MUNOZ used his personal vehicle, which coincides with the STATE'S EXHIBIT 3, THE DVD.
This instance is further relied upon in the SIXTH COURT OF APPEALS ORIGINAL MEMORANDUM
OPINION as MUNOZ activated his overhead lights which is clearly not true. NINTH STREET
and MARGARET DRIVE are labeled and confirmed as an intersection which is in complete
opposition to the CITY OF MOUNT PLEASANT, TEXAS, CODE OF ORDINANCES as there is NO
CONFLICT·ING. VEHICLE .TRAFFIC .AT THIS CURVE FOLL:; INTERSECTION, :rr:mrrder MOUNT PLEASANT, TEXAS, CODE OF ORDINANCE, GENERAL PROVISIONS
§ 70.01 DEFINITIONS, at INTERSECTION. Appendix, TAB l. The "Y" "y" theory is an issue
too, as revealed in attached documents. FURTHER, the APPEAL was from the 76th JUDICIAL
DISTRICT COURT, NOT THE 276th. HOWEVER, THIS COURT DID REVERSE AND REMAND TO TRIAL COURT.
This is but a fe·-1 issues from the SIXTH COURT OF APPEALS that reveals their reluctance
to use the record of the TRIAL but tend to rely upon the presentation of the, in this
case, 'DISTRICT ATTORNEY'S NARATIVE AS FACTS. See the ORIGINAL SIXTH COURT OF APPEALS
OPINION, APPELLEE'S BRIEF, and AFFIANT'S ORIGINAL BRIEF.for confirmation and compare
to the transcripts.
The SIXTH COURT OF APPEALS did reverse and remand for further proceedings, decided
JANUARY 13, 2011.
The TITUS COUNTY DISTRICT ATTORNEY'S OFFICE did not file a MOTION FOR REHEARING,
nor did this AFFIANT. However, the STATE PROSECUTING ATTORNEY, LISA C. McMINN, tht.6Ugh
ASSISTANT STATE'S ATTORNEY of AUSTIN, TEXAS, decided to file a PETITION FOR DISCRETIONARY
REVIEW (PDR) that was due on FEBRUARY 14, 2011 and NOT FILED IN THE SIXTH COURT OF
APPEALS until FEBRUARY 22, 2011, and COURT OF CRIMINAL APPEALS MAY 03, 2011.
9
73
. AFFIANT was never ma.de aware of this PDR FILING although the CONTRACTUALLY HIRED
ATTORNEY, CHARLES van CLEEF had been notified, assumedly, by u.s. Mail, in accordance
with the CERTIFICATE OF SERVICE found attached to said PDR,on FEBRUARY 14, 2011, same
day due to be filed.
The STATE'S ATTORNEY admits it does not have access to the record at that time and
the statement of facts is paraphrased from the COURT OF APPEALS' rendition of the facts
and the STATE'S BRIEF to .that court. Still not using the record for facts that reveal
MUNOZ'S CAR CLEARLY HAS NO LIGHTS,AND QUESTIONABLE SIREN, as STATE'S EXHIBIT 3, the
DVD clearly shows. Furthermore,.AFFIANT questions any facts from the PDR as the
STATEMENT OF PROCEDJRAL HISTORY reveals;NO. 01-09-00134-CR, when in fact the number is
NO. 06-09-00225-CR, ROBINSON v STATE. The STATE'S ATTORNEY reveals OFFICER MUNOZ at
trial agreed that the streets in question do "MERGE" and that there are no traffic signs
of any kind "AT THE INTERSECTION," this is probably because there is "NO INTERSECTION."
The point to be drawn is MUNOZ WAS LESS THAT TRUTHFUL THROUGHOUT THE ENTIRE TRIAL AND
SUPPRESSION HEARING, and this should be cause for concern considering his ARREST AND
CONVICTION, ALONG WITH HIS PARTNER, OFFICER SIMON RAY PORTER, BOTH ARRESTING OFFICER'S
IN AFFIANT'S CASE., HAVE BEEN ARRESTED ON FELONY DRUG AND PERJURY CHARGES WITH. THE.
INVESTIGAII'ION TO SAID CHARGES ESTABLISHED DURING THIS AFFIANT'S ARREST, TRIAL, CONVICTION,
APPEAL, THE ENTIRE PROCESS OF TIME, ESPECIALLY THE ARREST OF SIMON RAY PORTERAND'
INDICTMENT 2 DAYS PRIOR~ APPELLEE'S ORIGINAL BRIEF BEING FILED- PORTER ARREST, AUGUST
24, 2010, APPELLEE!S ORIGINAL BRIEF, AUGUST 26, 2010, filed in SIXTH COURT OF APPEALS.
AUGUST 24, 2010, was a Tuesday and on that morning a telephone interview was established
with CHARLES C. BAILEY, TITUS COUNTY DISTRICT ATTORNEY, through the TRIBUNE NEWS PAPER
in said interview BAILEY declined to release the name of the agency who investigated
the charge against SIMON RAY PORTER, an arresting testifying officer in AFFIANT'S case.
With the reverse and remand to the TRIAL COURT, some time in JULY OR AUGUST 2011,
unbeknown to this AFFIANT at said time and without hearing or notice, CONTRACTUALLY
HIRED ATTORNEY, CHARLES van: CLEEF, was allowed to withdraw to retrieve his IOLTA ACCOUNT
without filing a response to the STATE FILED PDR AND/OR NOTIFICATION OF SAID FILING BY
THE STATE, OR THE TRIAL COURT ALLOWING WITHDRAWAL FROM CASE. This ATTORNEY WAS
CONTRACTUALLY OBLIGATED TO CONTINUE THE APPEAL PROCESS, TO INCLUDE THIS PDR RESPONSE,
AND AS HIRED FOR SUCH A MATTER THE TRIAL COURT ABUSED ITS DISCRETION TO RELEASE HIRED
ATTORNEY WITHOUT A HEARING AND/ AFFIANT PRESENT TO ADDRESS SUCH ISSUES, THEREBY DENYING
THE DUE PROCESS FOR SUCH A M~TTER. FURTHERMORE, it can't be said HIRED ATTORNEY was
released before notice was given on PDR as said ATTORNEY filed, and the TRIAL COURT
accepted the MOTION FOR APPEAL BOND. At said BOND HEARING was when. AFFIANT was made•
aware that the TRIAL COURT had released HIRED ATTORNEY, stating one was needed before
said release on bond. AFFIANT made the TRIAL COURT aware that unable to HIRE ANOTHER
ATTORNEY, due to bond money spent for release, the COURT APPOINTED CHARLES MAC COBB.
10
1f
The APPOINTMENT OF CHARLES MAC COBBt and release on APPEAL BOND, was sometime 1n
SEBTEMBER / O_CTOBER 2011.
The COURT OF CRIMINAL APPEALS clearly sees the issues of the matters involved in
the questioned facts addressed and that the TRIAL COURT should have reconsidered its
(
original ruling on ~FFIANT'S MOTION TO SUPPRESS IN LIGHT OF THE LATER TESTIMONY at both
the MOTION TO SUPPRESS HEARING AND AT TRIAL - JUST AS AFFIANT REQUESTED THE TRIAL COURT
TO DO DURING THE JURY CHARGE CONFERENCE. Furthermore, the COURT OF APPEALS was not
required to defer to MUNOZ'S OPINION with respect to the legal significance of historical
facts, as the COURT OF CRIMINAL APPEALS OBSERVED FROM THE RECORD. The COURT OF CRIMINAL
APPEALS thought it appropriate to remand the cause to the COURT OF APPEALS FOR
CONSIDERATION OF THE AFFIANT'S FIRST POINT OF ERROR AND GUIDED THE COURT OF APPEALS TO
ARTICLE 38.23 (a), that "no evidence obtained by an officer ... in violation of any
provision of the CONSTITUTION or laws ... shall be admitted against the accused" at
trial, and MAHAFFEY II, 364 S.W.3d 908 (Tex. Crim. App. 2012), DELIVERED AND PUBLISHED
SEPTEMBER 19, 2012.
However, the COURT OF CRIMINAL APPEALS is too indoctrinated with the
misrepresentations by the COURT OF APPEALS AND DISTRICT ATTORNEY '/APPELLEE particularly
the portion of the traffic stop where "MUNOZ WAS TO HAVE ACTIVATED HIS OVERHEAD LIGHTS
TO INITIATE A TRAFFIC STOP," which clearly could not have happened as STATE'S EXHIBIT 3
the DVD reveals there are NO OVERHEAD LIGHTS ON MUNOZ'S CAR IN SAID DVD. Furthermore,
upon careful examination of said.DVD,one will notice a difference in the configuration
and shape of the drugs observed under the car, on the DVD, and the actual drugs offered
into evidence at trial. With the officers of arrest DETECTIVE CESAR MUNOZ and OFFICER
SIMON RAY PORTER, being investigated, charged, and convicted of both felony perjury and
/or felony wrug charges, as key witnesses for the state while the state has been aware
of said investigation, indictment, arrests, and conviction, one might question the
full intent behind this farce of a trial and conviction.
Which brings tJS to the DISTRICT ATTORNEY / APPELLEE, after the STATE PROSECUTING
ATTORNEY.OFFICE HAD BECOME THE ATTORNEY OF RECORD'IN ITS FILING OF THE PDR, WHICH IF
AFFIANT WAS TO ATTEMPT SUCH A MOVE IT WOULD BE CALLED HYBRID REPRESENTATION, NONETHELESS
DAVID COLLEY, who failed to even personally sign off on the then submitted APPELLEE'S
SUPPLEMENTAL BRIEF ON REMAND, to which APPOINTED ATTORNEY OF RECORD CHARLES MAC COBB
on NOVEMBER 19, 2012 was served with a copy via HAND DELIVERY, and still failed to
PURSUE ANY FORM Of J~EBUTTAL, SUCH AS THE "NO OBJECTION" THE STATE RELIES UPON FOR THE
OOURT OF APPEALS TO RULE ON, WITHOUT INVESTIGATION BY THE COURT OF APPEALS INTO THE ,:;:;:
REOORD, IS A "NO OBJECTION TO TESTIMONY REFERENCING THE CHAIN OF ffiSTODY, PARTICULARLY
'THE ENVELOPE' AS STATES EXHIBIT 2,u AS THE APPELLANT'S BRIEF (ORIGINAL) REVEALS STATE
WAS ALLOWED TO PLACE THE ALLEGED WRITTEN STATEMENT ... AND EVIDENCEDESPITE DEFENSE
COUNSEL's OBJECTION (HEARSAY)•at RR V 3, p 23-25. The "NO OBJECTION" 'lHE STATE IS
l_l
75
ATTEMPI'ING TO ESTABLISH FOR . "THE STATE OFFERED THE CONTROLLED SUBSTANCE AS 'STATE'S
EXHIBIT 2,'" when in fact at this point in the trial RR V 3, B 105- 112, was the
TESTII'I)NY OF DETECTIVE RAY YOKEL BAGGING AND DELIVERYING "THE ENVEWPE 1 Sl'ATE 'S EXHIBIT
2 11
'ID THE TEXAS DEPT. OF PUBLIC SAFETY WHERE KAREN SHUMATE "TESTIFIES 'ID THE ACCEPTANCE
OF STATE'S EXHIBIT 2 ('HIE ENVELOPE) AND THE PROCEDURES OF EXAMINING THE PROPER SEALING
LABELS, THE OPENING OF STATE'S EXHIBIT 2 (THE ENVELOPE) 1 THE NATURE OF "ll'HE CONTENTS
FOUND INSIDE STATE'S EXHIBIT 2 (THE ENVELOPE), THE WEIGHT OF THE CONTEN'l"S INSIDE STATE'S
EXHIBIT 2 (THE EINIVEIDPE) 1 AND THE ENVELOPES (STATE'S EXHIBIT 2) RESEALING PROCEDURE
FROM HER LAB TO THE PRESENTATION OF STATE'S EXHIBIT 2 (THE ENVELOPE} TO THE OOURT ROOM, 11
A CHAIN OF CUSTODY HEARING OF PRarocoL.
THEREFORE THE RULING OF THE SIXTH COURT OF APPEALS IS IN ERROR "THAT AFFAINT FAILED
TO PRESERVE FOR APPEAL THE ISSUE OF WHETHER THE CONTRABAND SEIZED WAS ADMISSABLE •• 11
THE STATE HAS INTENTIONALLY, WILLFULLY, AND MALICIOUSLY LEAD THE APPEAL COURT TO
AN IMPRESSION THAT AT THE POINT CLAIMED IN THIS TRIAL THE "STATE'S EXHIBIT 2 (THE
ENVELOPE) WAS THE CONTROLLED SUBSTANCE (AT RR V 3, -
P -
105
-- -112)
- WHEN IN FACT THE
'CDNTROLLED SUBSTANCE (EVIDENCE)' WAS OFFERED AT THE BEbiNNING OF TRIAL FOR WHICH TRIAL
ATI'ORNEY OBJECTED '1'0 Bm'H THE .EVIDENCE {THE CON'IROLLED SUBSTANCE} AND THE ALLEGED
WRITI'EN STATEMENT(AT RR V 3, f 23- 25, compare to above, 82- 85 pages later)."
AFFIANT'S HIRED APPELLATE ATTORNEY IN HIS BRIEF WRITES THAT "THE ENVELOPE IN WHICH THE
SUSPECTED COCAINE WAS PLACED (STATE'S EXHIBIT 2) AND A DVD (STATE'S EXHIBIT l) WERE
ALSO ADMITTED "WITHOUT OBJECTION," WHICH LEAVES THE QUESTION "WHAT WAS STATE'S EXHIBIT
1 ?"
In conclusion, AFFIANT filed an 11.07 APPLICATION FOR WRIT OF HABEAS CORPUS, the
STATE REFUSED TO ANSWER AND THE TRIAL COURT REFUSED TO ANSWER, then thecy forwarded the
APPLICATION TO THE COURT OF CRIMINAL APPEALS for which they DENIED WTTHOUT WRITTEN
ORDER, with AFFIANT MAKING THE PARTICULAR CLAIM WHICH IF AS STATE HAS STATED TRIAL
ATTORNEY STATED "NO OBJECTION 11
'1'0 THE EVIDENCE BEING ADMITTED AT TRIAL AND NOW AS THE
COURT OF APPEALS HAS CLAIMED BY DOING SO HAS FAILED TO PRESERVE ERROR FOR REVIEW, AFFIANT
HAS BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS PROVEN BY THE Sl'ATE AND THE COURT OF
APPEALS. THEREFORE, THE STATE AND THE COURT OF APPEALS CAN'T HAVE IT BOTH WAYS AND
EITHER WAY AFFIANT IS ENTITLED TO REVERSE AND REMAND FOR NEW TRIAL AND/OR IN THE
ALTERNATIVE ACQUITTAL AS NO EVIDENCEWASEVER FOUND IN THE CARE, CUSTODY, AND CONTROL
OF THIS AFFIANT,AS TO THE CRIME AS CLAIMED,IS TO HAVE BEEN CONSIDERED ACTUALLY INNOCENT.
AFFIANT HAS READ AND UNDERSTANDS THE FACTS CLAIMED HEREIN AS TYPEB'; AND NOW REQUEST
THIS ATTORNEY GENERAL OFFICE TO INVESTIGATE THE INFORMALITIES RENDERED FOR CONSPIRACY
CLAIMED FROM THIS AFFIDAVIT AND ATTACHED MANDAMUS WITH APPENDIXES LISTED AS TAB(S)
1 - 3, with CERTIFICATE OF SERVICE and UNSWORN DECLARATION.
FURTHER. AFFIANT SAYETH NOT.
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Abet Acosta, Clerk
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