                          ^7-/5
                       NO. 14-14-00885-CR                cOWOfSETwIW.
               IN THE COURT OF CRIMINAL.. APPEAL
              JUDICIAL DISTRICT OF AUSTIN TEXAS             , PEC 0 8 2015
ORIGINAL                                                    Abel Acosta, Clerk


                           NO.   1423099
               IN THE 183rd DISTRICT COURT OF
                      HARRIS COUNTY, TEXAS

                                                                    FILED IN
                                                           .COURT OF CRIMINAL APPEALS
             LUTHER    KARL   FERGUSON      APPELLANT,            r~~ 1lWr
                                                                  La, 11 Zilp
                                 v.

               THE STATE OF. TEXAS APPELLEE,                    Abe| ^ ^ Qefk


            PETITION    FOR   DISCRETIONARY       REVIEW
                           [i PRO. SE ]



     AFFIRMED AND MEMORANDUM OPINION FILED JULY 9th. 2015
                        KtKEEIH Q3URT OF APPEAL




                                                           DEVON ANDERSON
                                                           DISTRICT ATTORNEY
                                                           HARRIS COUNTY, TEXAS

                                                           ALAN CURRY
                                                           JOSEPH SANCHEZ
                                                           ALYCIA HARVEY
                                                           ASSISTANT DISTRICT ATT

                                                           MICHAEL Herrin
                                                           STUDENT INTERN


                                                           HARRIS COUNTY, TEXAS
                                                           1200 FRANKLIN SUITE 600
                                                           HOUSTON, TX.     77002
                               TABLE OF AUTHORITIES




CASES: WARD V, 787-(Tgx crim App .1992)'.
            JACKSON V. VIRGINIA 443 U.S 307,319 99SCT. 2781,2789,61 Ed 2d 560 (1979)
            Narvaiz   V. STATE 840 S.W 2d 415, 423(Tex crim App 1992)
            Inrewinship 397 U.S 358,364, 90 SCT1068, 1072, 72, 25 Led 2d 368(1970).
            Thomson v. Lovisville 362 U.S 199, 80 SCT 624 4 Led 2d 654.
            Moreno V State 755 S.W 2d 866,867.
            Davila v. State 547 S.W2d 606,608(Tex Crim App 1977)
            Hadden v State 829 S.W 2d 838 (1992)
            Cannon v. State 546 S.W. 2d 266(1977)

            Leonard L Martinez 304 S.W. 3d 642 (Tex Crim App 2010)
            Ex rel holmes v. Third 885 S.W. 2d 389,397(Tex Crim App (1994)
            Ex part Sadberry v. State 864-S2W.o541, 542 (Tex Crim App 1993)
            Ex parte Goodman V .State 816 S.W.2d 383,385 (Tex Crim Appl991)
            Willerso v. State 927 S.W.2d 112 (Tex Crim App 1996)


                                    STATUTIES:



TEX. PENAL CODE. 30.02 (A)(1) WEST SUPP 2013)                 TEX. PENAL CODE 31.01

TEX. PENAL CODE 12.33                            CONSTITUTION 1. sec.   1.09

                                    RULES.



TEX   . R    APP P.   44.29                  ART.    21.02



TEX. R.APP P.         202(k)                 ART 28.10, 28.11

TEX. R,APP P.81(C)
TEX.R.APP 66.2

TEX. R.OF EVIDENCE 1T03 (B) 3.02, 3.05




                                       IV.
                          TABLE-OF CONTENTS.

STATEMENT REGARDING ORAL ORAL ARUMENT                                            11.
IDENTIFICATION OF THE PARTIES                                                    II.

TABLE OF CONTENTS ---            -                                           III.

TABLE OFAAUTORITIES                                    ;                         IY.
STATEMENT OF THE CASE                •                                            3.

STATEMENT OF THE FACTS                               ===                          3.

REgLY TO APPELLANT, S SOLE POINT OF ERROR                                         4.
   I.) THE EVIDENCE IS INSUFFICENT TO SHO BEYOND A REASONABLE DOUBT THAT APPELL
       ANT COMMITTED BURGLARY OF HABITATION WITH INTENT TO COMMIT THEGT.

l.THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE VERDICT.

2.THAT THE TEX PENAL CODE ANN. 30.02(a)(1). IS NOT ALLEGES THAT THE INDICTMENT
  IS DEFECTIVE IN TWO RESPECTS: 1). THAT BOTH A FELONY AND A THEFT MUST BE ALL
  EG.ED IN THE INDICTMENT: 2.)that the elements of the offense were alleged in
  a different order from that found in th statute.

3. TWO EYEWITNESSES POSITIVELY IDENTIFIED.

4. AMENDING INDICTMENT, CHANGE OF NAME JASON WALKER TO WILLIAM EDWARD GARCIA,
   TO WILLIAM GARCIA.

5* DENIAL OF FUNDEMENTAL CONSTITUTION RIGHTS.
6. JURISDICTION DEFECT.

7. STATE JAIL FELONY ENHANCED.




CONCLUSION                                                                      1.2_


PRAYER FOR RELIFE                                                               14*




                                 III
                    COURT OF CRIMINAL APPEALS OF AUSTIN




                          LURTER CARL FERGUSON,   APPELLANT.

                                  VS.-

                          THE STATE.OF TEXAS,     APPELLEE.




                             No.l4-14-00885-CR

                          April 1. 2015 Brief Filed.
                          July   9. 2015 Affirmed and Memorendum opinion,
                          -In The-Fourteenth, Court of Appeals


                   TJn"T5jTpeaT~rl5bTiFt^
                                   Harris County, Texas
                    ...     Trial Court Cause No. 1423099 _ _
                   PETITION FOR DISCRETIONARY REVIEW



Appellant was charged-:byiindictment with burglary rof a habitation...with intent
to commit theft,enhanced by two prior felony convictions. Appellant         pled"True"
to the two enhancement allegations in the indictment, and the trial judge, sent -
enced appellant to 45 years confinment in the Texas Department of Corrections.
The:court of Fourteenth Court of Appeals overruled appellant's sole point of -
error, challenging the conviction=


                                         I. Background

Affirmed and Memorandum Opinion filed July 9, 2015. :.


Appellant was convicted of burglarizing William Garcia,s house, on the day of -sh
the offense, Myra Juarez, Garcia neighbor, witnessed appellant coming out of Gar
cia,s house wearing a "Yellowish- greenish" safety vest. She saw appellant carry
ing a small appliance to a green truck that was park in Garcia,s driveway. Jua.T.
rez.



                                         1.
took a picture of appellant on her cell phone because she had not seen appellant

or his truck in the neighborhood before. Juarez observed appellant go back into

Garcia,s house once more before calling her neighbor, Kathy Perez. Perez is a ,m§

mber of the neighborhood beardi&S"so;c!3ia&e.Juarez called Perez and sent the pictur

es   to her.



When Perez received the pictures she looked outside and also noticed the truck -t

that she had not seen in the neighborhood before. Perez called"Jason Walker',' the

the neighborhood security guard-, and asked him to investigate the suspicios acti

vity. After contacting"Walker,"Perez walked outside and saw appellant driving c*
the truck away. Perez was still on the phone with Walker and gave hime a descrip

tion of the truck and driver. Perez followed appellant in her own vehicle unit -
Walker could catch up. Perez identified appellant as the person she had seen fie

eing from Garia.s house.


When Walker received the photos he drove to the area where Perez reported seeing

appellant-. Walker followed appellant to a commercial area where appellant lost s

control of his vehicle,and"Hit a Light Pole'.' After the accident, appellant jumpr.

ed out of the vehicle and started to run away. Perez saw appellant hiding in the

the bushes and told Walker where to find him. Walker feestifiiedythataasaappeiLlamt

raas running;!awayi hethad the safety vest in his hand. Walker eventually detained

appellant, and held him until Harris County Sheriff,s deputies arrived. Walker

was unable to identify appellant in person, but identified a photo of appellant

as the person he apprehended.


When Harris County Sheriff,s deputy Ken Price arrive on the, seeffe^, he asked app

ellant for identification. Appellant identified himself as Luther Ferguson.


Garia testified that as he drove home that day he saw Perez and Walker standing

next to a      truck on the side of the road.   When^he arrived home he saw that his ho
me had been burglar ized.Thlirakimg.^tfoattWalkermay have caught the burglar, Garcia


                                     2.
drove back to the area where he had seen Walker with the truck. Garcia looked in

the bed of the truck and recognized Televison identified the iteams: Television
set,a jar with coins, a microwave,a stereo and his children,s shoes- Garcia ide
ntified the items as having been stolen from his house.

A Jury convicted appellant of burglary of a habition and the trial court assess,-;
ed punishment at confinement for 45 years in the Institutional Division of the -
Texas Department of Criminal Justice.


TO THE HONORABLE COURT OF APPEALS:



                  STATEMENT OF THE CASE.

Appellant was charged by indictment with burglary of a haditation with intent to
commit theft,enhanced by two prior felony convictions. (CR at 6); see also (CR -
at 14) (Amended indicment). Appellant,s case was heard by a jury on October 20,
2014, and the jury found Appellant guilty of the charged offense (CR at 99); see
also (RRTIVat 113-15). During the punishment phase, the trial court sentenced ap
pellant to fortyfive years confinement in the Texas Department of Criminal Justi
ce (CR at 100; RR V at 34). The court certified appellant,s right to appeal,and
appellant filed a timely notice of appeal (CR atl04s106).

                 STATEMENT OF FACTS-

On September 30, 20(03 at around 2:30 p.m., Luther C. Ferguson who an said date,
September 30, 2013 went with a friend Roy Jones cell phone# 713-283-3783 who air.
so came to court on Cause No: 40324301010. Charge: Burglary of a Habitation- 183
ed District Court of Harris County Texas,     Veiw: BORDER APPOINTING COUNSEL) Sh,-
a-*; (Marked);, EHIBIT:?A'.'   Dated Oct 3, 2013 three days after my arrest 9-30-13
Appellant lawyer: Silvia Pubchara - Attorney at trial. And spoRe with attorney-
about the date 30, Setember 2013? left word he put 100.00 on my books. Also a 1
light bill (jPihk slip notices ,) Cut::.- off Monday morning at 8445 p.m. Veiw Bev
erjfcy Ferguson at 832- 322-4729 ask for Beverly Ferguson. Who can state: I went -
help him move from his sister house.

                                   3.
Veiw THiS(HEARING REPORT (CONT.) Sheet.     Mark: EXHIBIT.(B). Also he contended -
that no culpable mental state, was alleged.. His lawyer knew/what he was charged
with and a do- defended was involve. And his"Mental"Health conditions: Bipolar I
REG MIX., SEV, W/PSY. ANTISSOCIAL PERSONALITY., IMPULSE _CONTROL DISORDER.
Which the court of 183rd knew my mental health conditions, and did violated the
mental health conditions of"ferguson'.'   Veiw: TEXANA CENTER
                                                4910 Airport Avenue, BLda. A
                                                   Rosenderg, TX 77471
                                                      281-342-6384
                                               Fax:    281-232-4312
January 10, 2014.

Send To: Silvia Pubchara
          12 Greenway Plaza, Ste 1100
          Houston:, TX 77046

Please veiw: EXHIBIT .(Q)
Hx of Hospitalization(s) #3 date last Hospitalized:2003-2004-2005... Slow/Retard
ed. Lay ..inside of my folder ?.and the court,and DA,and Judge,and lawyer knew about.
                            II. SUFFICIENCY OF THE EVIDENCE

 In a single issue appellant argues the evidence was insufficient to prove beyond
 a reasonable doubt that appellant knowingly and intentionally commited the Burg
 lary .

 A, Standard of Review:
 Myra Juarez a neighbor next-door Of Complaint Jason Walker, ,9-30-13. which i ha
 ve in my present, and *}*ei7va been indicted zVetwllEXHIBIT(S) Ass ,D.A.#240574
 61. Comp'lant; and indictment date:12-2,-13. Nevever did the court"Amended"'either
 oneCCdmplafiitf) two. (Indictment?) 12-2-13rand three. (Indictment )change to William
 Edward Garcia. 4-3-2014.      On 4-3-14 8.30a.m. Case Rest From. Type of setting:
 "JURY TRIAL". The court staff use"only": []. Never did the court or D.A. states;
 D.A TO REINDICT [] Remains uncheck. Veiw .EXHIBIT(j).}(E). And never Amended.
 Appellant argues the offense,of burglary of a habitation as to who theehabitat,a
 ion owener is. Sen:oEXHIBIT,? B,G,Q, S, t- (fc* Exhibits will show case # 14230
  99. OCase Reset FromiJ- s 10-15-14.and Jury Trial (Pick Jury) 10r.l6-14,and 10-17
  14.                              4"
Type of setting: ARR. were Judge: Vanessa Velasquez stated: I,am making this not

ice of change in this Indictment : 1423099 -"Change" Williams Edward Garica strie
king out "EDWARD",and inital her first letters of her name under the strikingg -
out of EDWARD Middle name. "Amending the indictment her self, and Stated: [; THIS d
MY COURT ROOM, DA.,AND DEFENDANT"ALL"BE READY FOR TRIAL MONDAY 10-20-14
Appellant states: The trial Judge proceeded to trial on Merits. Indictment 14230
99(William Edward Garcia). In this case this ORIGINAL ,UNMODIFED INDICTMENT rema
ined in"full force and effeet."Appellant never receive any amendment of the Judg
es Indictment that change^from William Edward Garcia to William Garcia...
Appellant sole point of error,and evidence is sufficient to show beyond a reason
able doubt that appellant committed burglary of habitation (Who,s)??.
Appellant exit the front door of said: "Garcia are Jason Walker"4, (RR IV at 13-
14). Appellant carrying an ob§ec!:t£i&aatapppaa£e^ttoohaerttoob;beasma          -
appliance.

Veiwing(RR IV at 13-14 computer-generated document has a word count of 1,708 wo
rds,based upon the representation provided by the word processing that was used

to create the document. Tex.R.App. P.9.4(i).
(RR IV at20-21) Ms. Juarez immediately stated: she went inside her house and tor
ok "Photos" of Appellant,s activities with her cell phone,s camera. (RR IV at 16

see also (RR VI at 4-11),and(State,s Exhibitsl-4).
Court of Appeals: Photos took never show Appellant"Entry'n William Edward Garica
or Jason Walker, or Williams Garica front door.

2nd. Appellant was never Photo carrying house object of small household appliane

ce.



3rd. A photo of me standing by a green pick-on the passager side waiting on Roy

Jones who had paid me to help him move his stuff ou of his sister house.

Witness,and Speculation].

Juarez observed appellant go back int Garcia,s or JasonoWalker or William Edward

Garcia house more before calling her neighbor.
Witness. Speculation ? call;>'911,and not your neighbor Perez.

                                   5.                    ;       .
Calling Kathy:.Perez-. Neighborhood board and Juarez thought Perez would know how

to contact the neighborhood security guard."Jason Walker"(RR IV at 4-11) (State,s
exhhibits 1-4). 4th. Apellant is still on the side of a greeb truck..- Picture tak
en by Juarez«(RR IVatl6). Perez walked outside of thr house and after not recogn
izing Appellant,s truck,and contacted the homeowner association security officer
Jason Walker* terhave^hirrr investigate Appellant activity. (RR IV at30-31) ,6th..Ap
P^-lifilL'- Le_L_^1ie_recjpj_o^^how_who''Jason Walker1 is The Complaint; Appellant has ber
under,and Indicted under 12-2-13 as the homeower-. .7t h. Appellant also was givi-
ng a--"change in his indictment 4-3-14 four months later. Indictment William Edwar

d Garica veiw the exhibits. Veiw case;rest from,s; date: 5-22-14 typing of sett
ing P.T.M.O ,ad 6-17-14 exhibits D, Case rest from: 10-15-1.4 and 10-16-14 Typing
of setting ARR. Jury Trial.:and the Judge_ oJ-iange my_Indictment to William Garica
Stricking out Edward,and amending^it her self with out returning the indictment-
^ai?JS._t9_._GJL?_2d_ Ju^j^                                             •"• 8th. Appe 11ant -
is still have the Original unmodifed Indictment that remain in full force and ef
fect,         William Edward Garcxj^-. . . .

Perez stated: Still on the phone _wi t_h _Mr .Wa Iker she_j?aw_ Appe lj_an t_ drive off _Mr .
Garcia property. So she told Mr.. Walker to hurrt,(RR IV at-32) . Perez never side

?he_s.aw the Appellant carrying any household applianc, stated: (RR I.V59) ^erez did


ng in thr driver ?s seat of the green _pip_kup__because the_ driver_is__side window was

5-2i2i:ijii2.wF:_'„-C??„IX^                          .^^ndqw^s_are up _how? could she - .
see__Appel_lant^. 8th. Apellant aruge how could two eyewitness state thoy saw me
carrying household applianc and can, t show photo which were taken and sent to -

each but No photos of carrying any household goods or Entry of siad homeowner -

Garcia are driving green truck with the window,s down. Pictures shows the window

up, never did any one show a address of Mr. Ealker or a picture of me coming out

of any adress,.

When Walker approached the neighborhood in his patrol vehicle, he saw Appellant-
was exiting

                                         6,
the neighborhood in the green Dodge pickup'. (RR IV at 60). ? Licecse plate, s wou
Id have help.,Me. Walker following him and made a U-turn.Id. Mr. Walker contiued
following Appellant after the U-turn,and as Appellant leand out the window to lo
ok back at Mr. Walker, Appellant idrove ..the pickup over a curb and crashed into a

light pole.

9th. Crashing into alight pole? another Crime scene,and accidental would have be
in side of officer Kent P*report 9-30-13.

(RR IV at62) Appellant exited the pickup and rand into a commercial parking lot.
(RR IVat 62. Mr Walker testifed that Appellant was wearing"dark-colored shorts..
.,[a] black T- shirt,[and a] greenish or orange-ish safety vest" when he exited
the vehicle and began running(RR IV at 66-67)
10th. 3-differeht"Description" of Appellant. Myra Juarez description: wearing a
'^Neon yellow-green vest. Ms. Perez description: wearing a "Bright green safety -
vest. Walker description: wearing "dark-colored shorts and black T-shirt,and a -
greenish or orange-ish safety vest". Booked-in at the Harris County Jail- "Blue
muscle shirt,and Blue".
After the accident appellant jumped out of the vehicle and started to run away.
Perze saw appellant hiding in the bushes and told walker where to find him. Walk
er testified that as appellant was running away he had the safety vest in his ha
nd. Walker eventually detained appellant,and held him until Harris County Deputi
 es   arrived.

 11th. No. accident report or H.L.an .-P-light company receive any service call 9-30
 13 at any location. 2nd. wear is the vest appellant drop Walker saw him droped.
 3rd.911- caller Walker listen: Stated; two suspect runing 1400 hunder block of
 hardy,and then said 1600 hunder block of hardy.
 12th. Officer Harris County Deputy not deputies. Kent Pries .p.uiL> up and got on
 his PA, and stated: bring the prisoner to me.Walker brought me to Officer and -
 they ex-changed cuff-leg irons. Ordering the wrecker driver to take the truck ba
 ck to un-know address. Were 3-4 houses down people was standing out side the ro

 ad.

                                  7.
asking Appellant name? Appellant: Luther Carl Ferguson, date of birth:1-23-66,-
SSI# XXX-XX-XXXX. N.C.I.report came back...   Luther C.Ferguson convicted of 1st
degree Murder,and ULC. Unlawful Carrying a weapon, and Parole violation,and pas
Ale Nov 12, 2012. He"informed"them to go head and get you,re property Ferguson
is going back for violation of his parole he is on. They took all of said to be
property,and the officer Kent never checked serial numbers of the property, and
the he walk threw the home,and didn,t call Buglary Division. No pictures takenin
g by said officer Kent. No picture of the door said to be kick in. No finger pri
nts from ferguson was find inside or outside the home. No tools are gloves found
onthe Appellant are inside the truck.
(RR IV at90),(RR IV at91).
Mr. Garcia was available to identify as his own,or otherwise as property previou
sly within his house, the property included :two television sets, a stereo,a mic
rowave,a laundry basket and clothing, various costume jewelry,a coin jar,and a -
purse. (RR IV at 80-83;see also(RR IV at 20-29 (State,s Exhibits9-13).
13th. Appellant Garcia never show officer Ken price property papers on any of -
these iteams. After officer Ken Price order them to get their stuff,and the size

of the TV,and vaule, any,and all iteams.


A.   Standard Of Review

Appellant ask the court or apeals to veiw : Jackson V. Virginia 443 U.S 307,319,
99 SCT. 2781,2789, 61 Ed 2d 560 (1979).
If based on all the Evidence a reasonable minded jury must necessarily entert -

ain a reasonable doubt of the defendant guilt, Due process requires that"We Rev
erse and Order a Judment of Acqitted. Nar^aiz/v.State 840 SW 2d 415,423(Tex Cr -
App 1992).see Inrewinship 397 US. 358,364,90 SCT 1068, 1072, 72,25 L. Ed 2d 368
(1970). and Thomson V. Louisville 362 US. 199. 80 SCT. 624 4LEd 2d 654.
Narvaiz v. State 840 SW 2d 415. Sectio 2.01 of the penal code contains the same

requirement as appellate court reviewing a cold record long after the jury has
 evaluated the evidence and made its finding, our task is to consider all the -


                                8.
records ,and evidence direct circumstantial in the light favorable to the jury,s
verdict and to determine whether, based on that evidence any rational jury could

found all essential element of the offense Beyond a reasonable doubt. Appellate
judges are not factfinder, however; We may not- re-evalute the r-W^t-and credibi
lity of the record evidence rather we act only as find Due Process safeguard ens
uring... the rational of the factfinder Moreno v. State 755 SW2d 866,867.
Iriwinship presuppose as essential of the Due Process guarenteed by the Fourteen.:
th Amendent that No Person shall be made to suffer the onus of a criminal convic

tion except upon sufficient proof- Defined as"EVIDENCE"necessary to convince a t
trier of fact Beyond a Reasonable Doubt of the existence of every element of the
offense Burglary of a Habitation.

Evidence- (Black,s Law Dictionary).
Something (Including testimony documents and tangible ojects) that tends to pro,
ve or Disprove the existence of an alleged fact; Anything presented to the sense
and offered to prove the existence or nonexistence of the fact; The Bloody Glove
is the "Key" piece of Evidence for the proseution. The admissibility of what is
offered as proof into the recoed of a Legal proceeding. Under the rule of Eviden
ce, the"Witness"statement is"INADMISSBLE",and Hearsay that is not subject to any
Exception rules of Evidence; Law Of Evidence.- Evidence

Element-

A constituent part of a claim that must be prove for the claim to succed Burke -

failed to prove the Element of Proximate cause in Proseuting his "Negligence. To
recover for patent infringement, the Appellant must prove that the accused prod
uct infrings every Element of at least on claim either Literally or under the do

ctrine of Equivalentss.

Beyond a Reasonable Doubt, see Reasonable Doubt.

The Doubt that prevent one from being firly convinced of a Defendant guilt or :-

the belief that there is real possibty that a Defendant is not guilty. Beyond a

Reasonable Doubt is the standard used by a jury to determine whether a criminal

Defendant is guilty, see. molde penal code 1.12 In deciding whether guilt has .-.

                                    9.
been with the presumption that the defendants is innocent- see: Moral certainty;

Burden of persuasion.CF. Clear and convincing Evidence under Evidence;

Thompson v Louisville 362 US. 199, 80 SCT, 624 4LEd 2d 654. remains the appropri

ate guide for a federal Habeas Corpus in view of this P.D.R to apply in assesss-

ing a state prisoner challende to his conviction as found upon Insufficient Evid

ence. The Winship doctive requiee more then simply a trial ritual. A doctrine Es
tablishing so "Fundamental a substantive Constitutional stand must also require-

that the factfinder will rationally apply that standard to the facts in evidence

A. Reasonable Doubt at minimum is one base upon reason! "Yet" a properly instruc
ted jury may occasionally convict even when it can be said that no rational tri

er of fact could find guilt Beyond a Reasonable a Doubt the same may be said of

a trial, such an occurrance has traditionally been deemed to require"Reversal"of

conviction Glasser v. United State 315 US. 60,80,62 SCT. 457 469,86 LEd 2d 680 -

Sppellant "defer to the jury,s responsibility to fairly resolve or reconcits in -

the    Evidence.

Code of Criminal Procedure:      Title 1.

Chapter 21. Indictment and Information Art.21.21 Requisites of an Informant. An

Information is sufficient if it has the following requisites: 1-9

9. IT MUST BE SIGNED BY THE DISTRICT OR COUNTY ATTORNEY,OFFICIALLY.Appellants in
dictments is stamped.

Code of    Criminal Procedure:   Titlel.

Chapter 47. Disposition of Stolen Property.

Art.    47.01 "SUBJECT TO ORDER OF COURT.

(b) An officer Ken Price who comes into custody of property governed by Chapter

371, Finance Code, that is alleged to have been stolen "Shall':' hold the property
subject to the order of the proper court regardless of whether the owership of -

the property is contested or disputed.

Art. 4701a. Restoration When no trial is pending.

(20. On the filing of written motion before trial by an attorney representing
the state, order the property delivered to the whoever has the superior right to


                                    .10.
possession, subject to the condition that the property be made available to the
prosecuting authority should it be needed in future proseuting or, Art. 47.02.
RESTORED   ON TRIAL.

(a) On the trial of any criminal action for theft or any other offense involving
the illegal acquisition of property, the court trying the case"shall"Order the -
property to be restored to the person appearing by the proof to be the owner of-

the property. Which Ken Price fail to have Garica to show proof 9-30-13. When
he Order them to get the property off the truck, never did he Tag or' seize it.

B. Applicable Law
To prove the offense Of burglary of a habitation, the state must show(l) the ace
used(2) without the owner,s consent, (3) entered a habitation, (4) with intent -
(5) to commit a felony, theft, or assult. see Tex Penal Code Ann. 30.02(a)(1). -
The sufficiency of evidence is determined from the cumulative effect of all the
evidence; each fact in isolation need not establish the guilt of the accused.
Appellant Indictment burlary of habitation does,nt state a statue or under any -
Tex Penal Code Ann. And both complaint,and indictment,and new indictment 4-3-14,
all read: Felony charge: Burglary of a Habitation, see Tex Penal Code Ann. 30.02
(a)(1). Following: The accused without the owner,s consent entered a habitation
with intent to commit a felony, theft, or assault.

It states: "Luther Karl Ferguson, hereafter styled the defendant, heretofore on
or about September 30,2013, did then and there unlawfully with intent to commit
theft,enter a habitation owned by Jason Walker a person having a greater right -
to possession of the habitation      (Complaint), and Indictment. 1403243

'2nd. Indictment: 1423099. date 4-3-14

States:    Luther Karl Ferguson,hereafter styled-the defendant, heretofore on or -
about September 30,2013, did then and there unlawfully with intent to commit -••-
 theft, renter a habitation owned by William Edward Garcia a person having a grea
 ter right to possession of the habitation than the defendant and hereafter styl.
 ed the compainant, without the effective consent of the complainant, namely, wi
 thout any consent of any kind.

                                  111..
Appellant indictment is insufficiency of an indictment is that the indictment mu
st "State everything necessary to proved. Davila v. State, 547 S.W. 2d 606, 608,
Rex. Code Crim. Proc. Ann Art. 21.03(Vernon 1989). see Hadden/v State 829 S.W 2d

838,,   Leonard L. Martinez./v. State 304 S.W 3d. 642 ( Tex Cr. App 2010).
Burglary Elements.

A.person commits the second degree felon offense ofburglary if he or she enters
habitation, without the consent of the owner, with the intent to commit a Felony
,theft or an Assault. Tex Penal Code 30.02(a)(c)(2)(2003). A person enters a hab
itation if he or she intrudes any part of their body or any physical object conn
ected to their body 30.02(b) [Entry] is established when the plane of the openi-
ing of the house is broken, and may be accomplished by placing a foot inside a -
door frame, by cutting window or door screens, or by braking a door lock or fra
me. The Entry can be any breach of the close of the residence. The entry element
of a buEglaryoffense may be prove by inference, just as inference may be used to
the element of any other offense.

C. Analysis

Appellant concedes that the evidence supports the jury,s finding that an individ

ual entered Garcia house without his consent and took his property.
Appellant argues that the Judge court 183th stated: DA don,t tell me this is ano

ther case were the property was given back to the owner? DA "yes" your honor, an

contuine to go on with the case using Appellant priors to use as evidence to conv

ict him.

Appellant argues that the evidence is insufficient to prove that he was the indi

vidual who burglarized Garcia house.

1. Finger print lifted off property,or tv,s   et,al.. and shoe.iprint, s . pictures
  of entry

2. pictures of him carrying iteams. household goods.

3. Entry of the house, witness pictures.

4. Jason Walker who arrested me couldn,t ID me in trial.

5:. Burglary division were never call to the location.
6. ? who,s the owener of the house, Jason Walker or'vWilliam Edward Garcia or wil
   liam Garcia?                  12.
 7. No address of William Garica or Jason Walker or William Edward Garica shown t
    in Indictment.
 8. Question? Door Broken in or Kick In. No pictures taken of"Entry'.'
 9.Were pictures taken by Sheriff Dept Ken Price inside of yourhome,and showing -
   were household iteams were,and missing.

 10.Were pictures taken by Burglary Division or prints lifted from the door or in
    side of the home, were appellant my have touched other iteams in the house.

 11. finger prints taken of the iteams found inside the truck? or Tag. Why ? the •:.
    truck was not search,and why? Burglary Division call to the scene for prints,
    investigation?

 12. officer Ken Price failed to perform certain duties in his investidation of ~
    the burglary, also did a walk threw the house and check for other supect....
 13. finger prints or foot prints would link the appellant to what the witness-
    Juarez,and Perez eyewitness carryingsmallhousehold appliance?
 14. Appellant hands were not bag for testing prints.

 15. Burglary Investion or Division would have follow all steps.
 16. Judge   stated: DA:"don,t tell me this is another case were you "All" give bac
     k the property. DA Yes your Honor.

 17. why? was the propert here in court 10-20-14 as evidence of a crime and not -
     pictures or witness but    Evidence ever¥ fact need. [.Ejvidence 1. ..Television,
     set, jar with coins a Microwave, a Stereo and children,s shoes, with Tag as
     Exhibits ...

 18. Officer Ken. Stated: Luther Karl Ferguson just came home for Murder Novl2,20
     12.'.-.Go .head and:, get. your ,11 stuff he going back for prole violation I don,t
     need to call burglary division out her or take any pictures,this one you ha/
     ve stated: Ms Myra Juarez ,and Ms Perez, and Mr.Garica,and Walker, property
     was taken and seat inside of ------ -r a garage,and appellant was taken in.

 19. Jason walker couldn,t ID me. and he arrested me and stated: He^not in the --
     court room the guy i arrested is 250LB,and"6','l

 20. Three Description of appellant. On page. 7. line 10.

Appellant argues the evidence is insufficient because (1) Juarez did not have en

otrghahtime to observe appellant to make a proper in-court identification; Let the
record,show that in the state,s Brief p.l (RR IV at 20-21)Ms. Juarez immediately
went inside her house and took photos of appellants activities with her cell pho
ne camera (RR IV atl6);se also (RR VI at4-ll)(State exhibitsl-4)Appellant who --
she couldn,t make a proper identification; (2)Walker only identified appellant -
from a photograph; That photograph was enter into records by the DA. A booking -
photograph. Let record show State,s Brief(RR IV at 40,64-65),(RR IV at 42-47) Mr
caught up with appellant and detained him

                                 113.
and at trial Mr Walker did not recognize Appellant in the courtroom during dire-,
examination (RR IV at63),However, on redirect, he verified the booking photo fro
m that incident to be of"the person tee detained. Appellant let the record show -
Mr. walker(RR IV at 42-47) is who detained the appellant,and is Jason Walker the
homeowner,s association security officer.who stated::DA ? Is The:"DEFENDS.NT"in z-
court room? Walker "NO". DA are you sure? Walker "Yes" i am, again the DA ? Walk
er "NO" he,s not in here . the guy i arrested is 250LB,and"6"l" This when the DA
use a booking photo of appellant. (4) Garcia could not identify appellant.
Appellant,s first two arguments attack the crebidility of the eyewitness,s testi
mony,mot its sufficiency; witness credibility, however is solely within the pro
ivce of the jury. Devaughn v.State 749 S,W„2d 62<Tex CR.App 1988) En'Banc; Haddr
en.iv.State 829 S.W. 2d 838(Tex CR.App 1992), Exparte James Cannon 546 S.W,2d 266
Moreover, the fact febat^frice and Garcia did not witness the burglary does not -
bear weight on the sufficiency of Juarez,s arid Perez,s eyewitness identification
Two eyewitnesses positively identified appellant as the man they saw .exiting'?Qar
cia,s house.

Appellant. Let the record show that both eyewitnesses never saw appellant, exiti-.
ing Garcia, s house, see. State.,s(A.ppellate Brief) at. (RR IV at 13-14).Myra Juar-;
ez saw appellant exit the front door of Mr. Garcia,s house carrying an object th
is or appeared to be a small household, appliance. ?"WhatV
Appellant will show the fact,s: (RR IV at 20-21,Ms.Juarez immediately went insi^
de her house and took photos of appellant,s activities with her Cell ;phone,s Cam
era.(RR IV at 16; see also (RR VI at 4-110)(State,s Exhibits 1-4) Will show appe
llant standing on the passager side of a truck, and not carrying any household a
ppliance(RR IV at 13-14).
Garica identified the items found in the back of the truck appellant was driving
as   items   that were    taken   from his house.

Appellant.. Let the record show that(State,s Brief) No photo of Mr Garica taken -r
the time Appellant crashed into a light pole. (RR IV at62). and(RR IV at 42-47)-
Appellant was caught and detained. Shortly after Appellant.s detention, Deputy -
Ken Price of the Harris County Sheriff,s Office arrived to conduct an investigat
ion of the incident(RR TV at 69,88-89), were Burglary Division was not call to -
to incident or HL,and-P was never to a truck crashing into a light pole,and pho-:
to was never taken by Juarez orPerez or Walker or Garica to prove these were his
items or property- ? property,s of each items would have help.

Officer Ken Price had appellant,s pickup towed to Mr Garcia,,s house(RR IV at 91)
Appellant .aruges        this is were he   was detained in the back seat of officer Ken -
Price parole car,        check appellant   record N.C.R came back Parolee, .'Parole Nov 12-
2012. Officer Ken        then got on his   P.. A horn stated: To Garica,Perez,Juarez to go
head a get you, 11       property Luther   Karl Ferguson is on parol.an he,s going back -
for Violation of his "PAROLE".

Veiw: (RR IV at 91, (RR IV at 80-83,92-93 )Will show pictures taken by Juarez,an
sent to Harris County Sheriff,s Ken Price, this is how the DA5and Sheriff,s got
these photo,s- never were they taken by Sheriff Deptment Ken Price- during his-
investigation of the incident, photo.s don,t state Harris County Seriff investi
gation- 9-30-13

                                        114.
                        SUMMARY OF TH ARGUMENT

Giving due deference to the jury., s role as the factfinder and judge of the credi
bility of evidence., and reviewing the record in the light most favorable to the
guilty verdict, the evidence presented at Appellant, s trial was-"Fundamentally De
fective and insufficient to support conviction for Burglary of Habitation, Amend
ment Indictment by Changing the name of the Complainted Jason Walker 9-30-13, un
der Indictment 12-2-13, name change 4-3-14 William Edward Garica,and 10-16-14,--
10-17-14 Judge 183th amended the indictment herself by stricki'ng out Edward, and-
amended the indictment she-had and not me appellant to william Garica. 10-20-14
trial datee= Appellant is still under the Indictment of William Edward Garica -
the is in full effect here at the Mark W.       Michael Unit,

Case,s cited - Fundamentally Defective Exparte. James Earl Cannon v^sSatfe 3416-©©*
2dd256i~Madden V.   State 829 S.W.    2d 838=

Appellant 2nd point of err allegs that the indictment is defective in two respe
cts: 1) that both of Felony and a theft must be alleged in the indictment: and-
2) .that the elements of the offence were alleged in a different order from that

found in statue, All that is necessary is that the indictment list the elements
of the offense.TEX.CODE CRIM,   PROC.ANN-art,21.03 Hadden v     State 829 S.W 2d 838


Appellant was Denial of Fairness and Equity.see Exparte Euresre 725 S.W.214.217

»Tex crim App 1987); and Constitution rights.
• also JURISDICTION DEFECT   Ex.rel Holmes v.Third court of app 885 S.W.2d 389,397

(Tex Crim App 1994)   Exparte Saddberry 864 S.W.2d 541 542 (Tex Cr ;App 1993),
Ex parte Goodman 816 S.W. 2d 383,385 (Tex Crim App 1991)
Error,s under 7.C.C.F.. Art. 105 TEXAS RULE OF EVIDENCE and 1.03(B) 3.02 3.05 (Fu

ndement error Doctrine) as U.S. Constitution righty, Texas ,Jurisdication error
and 1. sec 109 and as Jurisdictional see Exparte Sadberry 864 s. w. 2d 541 (1993


Appellant   states case: Wilkerson v. State 927 s.w. 112.

Appellant was charge by indivtment with burglary of a habitation committed on 9-

30-13. Since September 1,1994 this has been a State Jail Felony. Tex Penal Code

Ann 30.02 (A.) (1) May not be punished under the Habitual offender provision.




                                     15.
                                      PRAYER FOR RELIFE

       ^:''' 'S. V   ".-

       Court of Appeals Appellant Luther Karl Ferguson Pro.Se. who has not achiev
ed goals of Due process of law"s
Recent decision of the Supreme Court, court of Appeal, s in area of Criminal lav?

Pro se defendant. s rights fail to tack into account, three crucial aspects of so

cial structure which may tend to render the more libertarian rule as Nugatory,.

The decision overlook(l) the nature of courts as formal organization(2) relation

with the state court appointed lawyers misconduct.

Veiw how my lawer Thomas J,Lewis is the same lawyer in my murder case in 1986 ap

peal and the court of 183rd appointed him again in this case. He denial my appe

al in 87,        case # 429997

I receved 45 years for going help a friend move, and he was helping me from havi

ng my lights cut-off. Dring summer time it to "Hot" in the summer, and cold to

with lights I was paid 50.00 to paid a 48.56 light bill that lay untold in side

of my court, Beverly i drop off at the store at 8: 30am time the store open.

Veiw the ORDER APPOINTING COUNSEL Exhibit his # he gave my lawyer who never told

the court. I was about to complet parole on my old # 426969 1985 case 1-1-2015 -

long way discharge; the courts knew this. The judge told me i see were you gave

back 25 years on you murder case, and you beat a Gun case, murder wasn.t final

til 1-1-2015 the DA use it as a prior, and a 14 year old Weapon case 9418981,
veiw were my lawyer stated if you want to proceed your own P.D..R. you have the

right to file Pro se. so I did hears my case only the true so help me "GOD" I
DIE 6-27-14                in the Harris County Jail and 4 month later i recvie 45 years. To

day I ,ve Surrender to God and leading others to God . John 14: 6 Say: Jesus is-

the Truth, and Way .and Life, and its all in this P.D.R.
                                                                         THANKY0U:

COURT OF CRIMINAL APPEAL AUSTIN.


    HAPPY HOLIDAYS. MARRY XMAS .AND HAPPY NEW YEARS 2016.

  P.S THIS MY SEASON FOR GRACE AND MERCY:
                                        THOMAS J. LEWIS
                                               Attorney at Law
                                             1602 Washington Ave.
                                             Houston, Texas 77607
                                              Tel: (713)868-0081
                                              Fax: (713)861-2951
                                          E-Mail: tjlaw2@comcast.net


                                               July 9, 2015

 Luther Karl Ferguson
 TDCJ# 01961670
 Michael Unit F-1-24-B
 2664 FM 2054
 Tennessee Colony, Texas 75886

            RE:    Luther Karl Ferguson v. State of Texas.
                   Mo. 14-14-00885-CPv.                                 o
                   Fourteenth Court of Appeals.
                   VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
 Dear Mr. Ferguson:

           Enclosed is a copy of the Judgment and Opinion of the Court of Appeals in your case.
 Unfortunately, the Courthas affirmed yourconviction.

           Rule 48,4 ofthe Texas Rules of.Appellate Procedure requires me to give you the following
 notice:
           If you wish to appeal the ruling in your case, you may petition the State's
           highestcriminal court,the Court of Criminal Appeals. The Court hasdiscretion
           toacceptor deny your petition. If you want to proceed on your own,you have
           theright to file apro sePetition for Discretionary Review oftheAppeals Court's
           decision withtheCourt ofCriminal Appeals. You must file your petition within
           30 days of July 9, 2015, the date the Appeals Court handed down its decision.
           The petition must be filed with the Clerk of the COURT OF CRIMINAL
           APPEALS, P.O. BOX 12308, AUSTIN, TX 78711. Ifyou need moretime than
           30 days, you may file a request for aa extension no laterthan 15 days after the
           due date. If you need more details, you should look at Rule 68 of the Texas
           Rules of Appellate Procedure.

           If you have any further questions, please let me know.


                                         Very truly yours,


                                        Thomas J. Lewis

file
^t_Q^6ejOD_^ /{^yctA /&**£ Tscrt-s fow^{^ Me^r'^f/ou^ CQ 5^ yoti ajbbJ^^
     COURT OF CRIMINAL APEALS     OF AUSTIN




          No.   14-14-00885-CR.




    LUTHER C.FERGUSON, APPEALEANT.

                  VS.



    THE STATE OF TEXAS, APPELLEE.




    ON APPEAL FROM THE 183er DISTRICT COURT

                HARRIS COURTY, TEXAS

        TRIAL COURT CAUSE NO.1423099




PETITION FOR DISCRTIONARY REVIEW




     "EXHIBITS - A-
                               EXHIBIT   -   A.




  CASE NO.   1403243




                             ORDER APPOINTING COUNSEL


DATE: 3RD DAY OF OCT. 2013




for the record exhibit A. my co- defended ROY JONES. # (713) 283 3783"WAS" never


told of til this day.    My lawyer and the court keep this from the jury,s .



This is the guy who gave me 1/2   50.00 dollars to help him move his stuff^out fo
r, his sister house.




ENTER EXHIBIT IN TO THE RECORD OF COURT OF APPEALS OF AUSTIN TEXAS.
                                                    •*•       Nft*       -* **_,                                    ^u- \ <i—ssyK*"
                                                                                                ^je**-**
    ~"«EPt
           j£4.
      «^T.
    ^felpSfeCAUSE NO W
                                       THE S^E OF TEXAS                                             <-    \
                                                                                                                                 §                       S^             - DISTRICT COURT
                                                                                                         J I   -


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                     r        y'                          \                     •—                                                                                        0.
                                                                                                                                                                          Wi&rtJKi                   i7?^
                                                                                                                                                                               n%
                                                                                                                           *- §                HARRIS COUNTY,Tb>AS
                                                                                                 J             •
                                   Defendant                                                    ~                     * £-
                                   TO THE HONORABLE JUDGE OF SAID COURT                                               - ^E

                               ^ i x 'i \^C*J—&£-k- l-C'C^j ^CnarneyT5^the DEFENDANT Q aWITNESS in the above styiy.
                                   and numbered cause respectfully petitions the Court to appoint counsel to represent him/her in this cause and
                                   would show the Court that he/she is financially unable to hire an attorney /


                                                                —       —I

                                                                                                         /Defendant/Witness
                                                                                                         / n*afpnHant/\rt/itn*acc   _      —

                                                   -                                                                    A         '                                        i
                                              Sworn to ana^ubscribed before me on this, the\1/i^                                               day-of ()£ /^<J^>^0                       2q/ ?
            . ^5&-
                                                                                                                        Ax -
                                                                                                                      r^fiL-JPeP^y District Cleri^ _ „ ^ _^
                                                                                                                         L^^'HalTis^6tifr^|e^srT—v^e-*^                                             "T-y^y.

                             .J-                                                          ORDER APPOINTING COUNSEL*- '                                                          * %'"=
                                                                                                                          -S\,

                                         ~" On this, the tjd.d day of /)€£% £-&?j?~~                                                      2o/j>rY.tHe Cburt*determined that the above
                                   named defendant/witness hagfexecuted an affidavit stating that he/sh'e is without counsel and is financially
                              • unableTo hire an attorney "The Court ORDERS that   -Stile ATTORNEY LISTED'BELOW LJthe HARRJS
         :s -?
                         X         COUNXY,pDblIcDEFENDER'S OFFICE is appointed to represent the defendant/witness named above in this
    -a'*—-                               ^"                         -                                                        ,                     1 -              *
                                   cause                            ^—>            /        /                              j&                  ^     f         ->
                                   /


                                   AttorneyAssistant Public Defender Assigned by HePD                                      fl.% CMail
                                                                                                                           ^i^l        Addr«<:
                                                                                                                                C Mail Address                •— -              X
                                                                                          -&m£--*-±                1^ -CS^f^y ^ jr^jy^^^y^.
                               'Address                                                                                     ij Phone Number
                                                                                                                            wr
                                                                y                       ^ -7** 4                           j(f v -7/j,; k<£-/*~ j
                               '"City                                   State                   Zip                       ^|r"
                                                                                                                          —sir-      Fax Number




                                   SPN Number                                                                           •% '^^ Bar Number
    »   ^


                               J"he„£our.tfurth,erX>RDERS the cause=set.for ^s^dJy^^^^^J'^ '** ril ' ^                                                                                   —'~^~' -
                                   0nthe                        day of /^4tf 7Xjl ,20                                                              at ^TJQa mat 1201 Franklin,
                                   Houston, Harris County.Jexas
                                   Signecl*this~~             day*of~



%                                                                                                                                                         Judge Presiding
r
                               I IThe State has offered or                         | JThe State and Defense'Sgree as follows


                                   Defense Attorney (Initials).                        Prosecutor (Initials)
