§|.%B'<W

Abel Acosta, Clerk
P.O. Box 12308
Capitol Station
Austin, Texas 78711

To Abel Acosta, Clerk:

Please enclosed find the following documents to be filed in this

Court of Criminal Appeals of Texas, Cause No. ll,707B.

These documents shall be executed upon this court's discretion to

determine the next course of action. This will be at your earli~

est convenience and as time permitted for as the docket calls.

The following documents are:

(l)-Applicant's Reply and Rebuttal to the Trial Court's denial of
relief sought in the llSth Judicial District Court of Upshur
County, Texas-total of seventeen (17) pages; ‘

(l):Applicant's Request for Judicial Notice~total of one (l) page;

(1)-Moti0n for Writ of Habeas Corpus Ad'Testificandum-total of
one (l) page;

(l)~Copy of (R.R. Vol. 5 of 8, pg. 69)-total of one'(l) page;

(l)~Copy of (R.R. Vol. 5 of 8, pg. 82)-total of one (l) page.

Applicant's Reply to the Trial Court‘s denial presented to the

court shall be executed by the clerkl applicant's Request for

Judicial Noticel Motion for writ of habeas corpus ad testifican-

dum, copies of (R. R. Vol. 5 of 8, pgs. 69-82) presented to the

court shall be executed by the Clerk.

Applicant, Billy G. Colvin, thanks you for your time in this

matter before the court.

Executed on this:l¢?~ day ofDE£§(H,é§'j* , 2015.

Respectfully Submitted

REcElvED :N /:3` J@//W (j‘£aw

couRT oF cnnvnNAL APPEALS §§§§y;/§:#§§<l)§§;

L.C. Powledge Unit
1400 FM 3452

DEC28 2015 ~ Palestine, Texas 75803'

"\I

Abel Acosta, C|erk

 

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

EX PARTE NO. WR-5l/885-O4
BILLY G. COLVIN TR. CT. NO. ll/707B

APPLICANT

 

APPLICANT'S REPLY TO STATE'S PLEADING

Comes now Billy Gordon Colvin, hereinafter Applicant, in the
above styled and numbered cause, pursuant to Art. ll.O7l Texas
Code of Criminal Procedure (C.C.P.) and brings this reply to the
State and Trial Court's contentions that the applicant's Writ of
Habeas Corpus be denied.

Applicant contends that this Honorable Court should strike
the State's pleading as frivolous and deceptive to the Court and
for cause applicant demonstrates:

(a) The State utilized no statutes, law, or cases to support

their contentions;

(b) the State merely stated their own opinion without any
evidence to support their theory; `“"

(c) the State' s contentions of subsequent writ theory is based
on"just that, a baseless theory with no arguable basis
in law;

(d) the writ cannot be subsequent because of past precedential
case law mandates to the contrary and the State is
deceptive, demonstrating bad faith, willfully disobedient
to the Court and presenting fraud in the Court.

REPLY `

Applicant addresses the State's contentions by page and line
number as such example: pg. 3 lines 7~12, Grounds l & 2 etc..

The State contends the "Writ of Habeas Corpus in 2008 should
have included the instant grounds herein this writ"; their

argument is without merit and should be dismissed based upon past

Applicant's Reply-l
Colvin, Cause No. 11,707B

 

established law made precedent by this Honorable Court.
For examplel this Court held:~y
"...this Court identified two claims that do not
constitute as a challenge to a conviction..." Ex
Parte Santana, 227 S.W.3d 700, 703-04 (Tex.Crim.
App. 2007)

The Santana court held that when an applicant challenged a
revocation of parolel "did not qualify as an applicant that
challenged the conviction," Santana, Id.at 703; (citing Ex Parte
.Evans, 964,S.W.2d 643 (Tex.Crim.App. 1998); an applicant that
"sought an out-of-time appeal because counsel's failure to file
the notice," much like applicant's case, the court held that it
did not constitute as subsequent; see Ex Parte McPhersonl 32 S.W.
3d 360 (Tex.Crim.App. 2000): this decision in Santana tracked the
statutory language, muchilike applicant herein is attempting to
get the trial court to do in his "primary writ" that is challeng-
ing not the conviction-but the Statute upon which the conviction
was had.

Therein, the State and trial court required that this Court
should track the statutory language of Art. ll.07 §z4t(C¢CéP});,,
while at the same time the State and trial court wish th present
fraud on the court with their deceptive pleading knowing the
appiicant would refrain from taking any action on the basis of the
document. See Texas Penal Code § 32.48, 37.10 or Code of Criminal
Procedure § 21.15 and Texas Government Code § 5l.901; as defined
in Texas Penal Code § 37.0l.

The State's pleading should be denied and the state sanction-

Applicant's Reply~2
Colvin, Cause No. ll,707B

ed for submitting a frivolous pleading.
ARGUMENT

l.) The State combined both grounds l & 2 in their inarticulated
contentions that do not rely upon any facts or law that should
reflect the same; applicant does hereby request that sanctions
lshould be levied upon the State, in their deceptive pleading, and
should strike such pleading just the same.
2.) Applicant herein relies upon his history with this Honorable
Court, and established law, in regards to Art. ll.07 (C.C.P.) that
clearly denotes the dispositions of such writs of habeas corpus:

"Dispositions relating to the merits should be

labled 'denials' while dispositions unrelated

to the merits should be labled as 'dismissals‘..."

Ex Parte Torres, 943 S.W.2d 469, 474 (Tex.Crim.
App. 1997)

3.) As this Court has held that a subsequent writ that does not
challenge a conviction is not a subsequent writ pursuant to
section 4 of Art. ll.O7 (C.C.P.),

4.) Again, here as in his memorandum at law, applicant contends
that judicial notice should be applied to the law and facts as
presented in the record. Clewis Supra at 129; see also Texas Rules
of Evidence 201. Clewis v. State, 9225&Wi2d lZ€x%TexJkim.M%leQ€)
5.) According to the facts, applicant requested a post discre-
tionary review (ie., out of time appeal to the appellate court's
decision to affirm his conviction) which had no bearing on this
court's determination of his conviction or sentence.

6.) This Court held;that, initwoqcases'to determine the subses

quent writ doctrine, writs that do not challenge the conviction

Applicant's Reply-3
Colvin, Cause No. ll,707B

are'notysubsequent§wriwspfor.purposeshof section 4, Art. ll.O7
Code of Criminal Procedure.
7.) Ex Parte Santana was such a case that recognized that an
applicant, much like that in Ex Parte Evans, that the initial
application challenged only the revocation of parole "did not
qualify as an application that challenged the convictionr" withing
the meaning of Art. ll.O7 § 4; Ex Parte Santana, 227 S.W.3d 700,
703-04 (Tex.Crim.App. 2007); Ex Parte Evans, 964 S.W.Zd 643 (Tex.
Crim.App. 1998)(because the former application did not challenge
the validity of the underlying conviction).
3.) Applicant did not challenge the conviction in his primary
writ submittedsinhZOOS¢ such like that ih.Evansr Id. and those in
Santana, Id{.

. \ ,
9.) One other case was noted in Santana, Ex Parte McPherson, ex-
actly equal to the applicant's case, held "that the applicant's
[McPherson] initial application that sought only an out-of-time
appeal due to counsel's failure to file a notice of appeal did
not challenge the conviction under section 4." Ex Parte McPherson,
32 S.W.3d 860 (Tex.Crim.App. 2000)
lO.) Santana only reset the time to appeal, "thereby making any
substantive claims challenging the conviction premature; Santana
Supra_at 703-04.
ll.) Santana Court concluded that "when an ihitial;application
presents claims challenging the validity of prosecution...and pre-
sents a claim concerning the denial of the right to appeal and
this Court grants an out-of-time appeal while dismissing the

Applicant's Reply-4
Colvin, Cause No. ll/707B

\

remaining grounds for relief, the initial application does not
qualify as an application that challenged the conviction for pur-
poses of section 4(a)." (emphasis added) Id. at 703-04; see also
Ex Parte Thomas, 953 S.W.2d 286 (Tex.Crim.App. 1997).

LESSER INCLUDED

Applicant contends the trial court erred by not including the
charge of the lesser-included-offense in the alternative as evince
ed in Abnor v. State, who stated:

In [Williams] v. State, 547 S.W.Zd 18, 20 (Tex.
Crim.App. 1977), we_explained "[tJhe law must
come from the court, the facts must be decided
by the jury, and the charge to instruct the
jury properly, must apply the law to the facts
raised by the evidence." Abnor v. State, 871
S.W.Zd 726, 731 (Tex.Crim.App. 1994); see also
Daniels v. State, 633 S.W;Zd 899 (Tex.Crim.
App. 1982); Doyle v. State, 631 S.W.Zd 732,
738 (Tex.Crim.App. 1982); Rider v. State, 567
S.W.2d 192, 195 (Tex.Crim.App. 1978)

The lesser included offense would have given the jury leeway
to decide properly the facts as applied to the law. Bailey v.
Haddy, Dallam 376, 378 (Tex. 1841)

The first step in the lesser-included-offense, determining
whether an offense is a lesser-included-offense of the alleged
offense, is a question of law. The evidence aduced at trial should
remain an important part of the court's decision whether to charge
the jury on the lesser-included-offense. See Code of Criminal Pro-
cedure § 37.09; see Texas Penal Code § 21.11.

The second step in the analysis should ask whether there is
evidence that supports giving the instruction to the jury. Hall v.

State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007); see also Ex

Applicant!s Reply-5
Colvin, Cause No. ll/707B

 

Parte Watson, 306 S.W.3d 259, 262-63 (Tex.Crim.App. 2009); Murray€
v. State, 302 S.W.3d 874, 876 (Tex.Crim.App. 2009); (Hall's cogn-
ate pleading test applies in both jury and bench trials).

As to the second step, victim testimony clearly demonstrates
that "then hellaidjdown:and;thenasexually molestedwme"iinvwhich
this is "the scintilla of evidence" needed to include the lesser-
included-offense because "anything more than a scintilla of
evidence may be sufficient to entitle a defendant to a lesser
included offense." Hall, Supra 225 S.W.3d at 535-36; EX Parte
Watson, Suprai Murray v. State, Supra. Seé:also C.C.P. 37.09(1).

Further, the second step analysis should include whether the
victim was a willing participant, enamored with applicant in that
before, during, and after the indecent contact, victim was never
in any fear-got into bed dressed then disrobed-demonstrating the
requisite elements. Tex.Penal Code § 2l.ll "with intent to arouse
or gratify the sexual desire of any person" temphasis added). See
also pg. 12 memorandum at law; pg. 69, lines lO-21 and pgs. 81-84
trial recordL attached herein.

The victim bespeaks of sexual intercourse that has went un-
corroborated by any outcry witness and inadmissible hearsay as 38.
072 in which, "the requirements of C¢C.PL Art. 38.072 are`
mandatory." Lopez v. State, 315 S.W.3d 90l 98 (Tex.Appr-nguston:
2010, pet. granted, 9-22-10). y

The statement made by the victim was not corroborated by any
outcry witness; its prejudicial effect could not be cured by any
objection or instruction to the jury.

Applicant's Reply-6
Colvin, Cause No. ll,707B

However, the charge to the court clearly demonstrates that
one charge, Aggravated Sexual Assault, and no more; depriving the
applicant of a fair and impartial trial. "...the court must\re-
verse unless it finds that evidence exists which refutes each`
theory of aggravation pled by the state." Arevalo v. State, 970
S.W.2d 547 (Tex.Crim.App. 1998), conviction aff'd on remand, 987
S.W.2d 167 (Tex.App.-Houston 1999, pet. ref'd).

Also, on pg. 4 of the state's opposition to applicant's writ,
their ramblings contend the law is something to hide from the

y ~
citizens of this State, because if the state can give great weight
of credibility to the victim's testimony on outcry, then by normal
consequences of common sense would denote that same weight would
be given any form of participation testimony as "a person acts
intentionally, or with intent, with respect to the nature of
his[/her] conduct when it is his[Yher] objective or desire to en-
gage in the conduct," verbatimy CHARGE OF THE COURT, pg. 2, lines
3-5; see also Koah v. State, 609 S.W.2d 156 (Tex.Crim¢App. 1980)
(the formulated distinction between intentional and knowing, as to
results, is thus between desiring the result, and being reasonably
certain that it will occur.") Id. at 160 n.l.

Society has always short-changed our youth with the concept
that they are not responsible for_their actions when it involves
the commission of a crime; such as the victim's blatant nudity
after climbing into bed to be with a grown adult; with the intent
to arouse and gratify her own sexual desire knowing such an act is

clearly against the law. see'pg. 69, lines 10-21 trial record-

Applicant's Reply-7
Colvin, Cause No. ll,707B

 

"Intent and knowledge may be inferred from the
facts and circumstances." CHARGE OF THE COURT
Id. at pg- 2 lines 9-10
And yet the State contends, or more appropriately, it demands
that the law mandates his application does not fall within one ex-
ception regarding subsequent writ doctrine, pg. 4 lines 13-19 of
state's answer. This is deceptive in their pleading and this Court
should strike the pleading, granting relief to the applicant as a
matter of law.
The reception of the State's pleading continues to the last
page all through its conclusion and prayers; "Applicant fails...?;
then continues with "...that there are no new controvered; previ-
ously unresolved facts..."
Applicant relies upon the applicable law of this State, in
that:
"Each District Attorney shall represent the State...to see that
justice is done," C.C.P. 2.01; but the DZA. is not providing
justice by denying proper punishment for the crime committed
because "its primary duty is to enforce the law," Tex.Att.Gen.
DO-JM-266; by suppressing facts that belong to the jury to de-

ii'ih F:cide, tied to a fair and impartial jury of his peers; a
matter of right that our(legislature has established the means
of vindicating that interest. (emphasis added)

Applicant does not challenge the conviction but challenges
the statute upon which it was obtained, that is inconsistent with

the evidence aduced at trial, and requests this Honorable Court to

remand as such.

Applicant‘s Reply-8
Colvin} Cause No;'ll,707B

PRAYER
WHEREFORE PREMISES CONSIDERED, Applicant respectfully prays
that this Honorable Court will order this cause to the trial court

for a reduction to the lesser included offense of Texas Penal Code

§ 21.ll, in all things granted.

Executed on thisl.` ; day off,}f*§;£#~'!§ é§;f' 1 2015

Respectfully Submitted

 

1 Bill G. Colvin #760687
Applicant Pro Se
L.C. Powledge Unit
1400 FM 3452
Palestine, Texas 75803

Pursuant to 28 USC § 1746, I Billy G. Colvin do hereby certify
that the aforementioned Reply and Rebuttal is true and correct to

the best of my knowledge, under penalty of perjury.

Respectfully Submitted

 

Applicant Pro Se

Applicant's Reply-9
Colvin, Cause No. 111707B

 

