                   Cause   No.



                                 IN THE

                   TEXAS   COURT OF CRIMINAL APPEALS




DARRELL DEWAYNE   SNEED
Petitioner
                                    § TRIAL COURT CASE #Fll-607-30-Y
vs.
                                    §

THE STATE OF   TEXAS                § COURT OF APPEALS #05-12-bl061-CR
Respondent                          §


                                                               'RTOFCRK'!\'Ai.Ai::,.^

                                                                 DEC 312

                                                             'me* Anosta, Gier.

                                                                  FILED IN
                                                          COURT OF CRIMINAL APPEALS
                                                                C*_C 3 l 23i"}

                                                              Abel Acosta, Clerk



                  PETITION FOR DISCRETIONARY REVIEW




                                        Darrell Dewayne Sneed #1800663
                                        Alfred Stringfellow Unit
                                        1200 F.M.   655
                                        Rosharon,   Texas 77583
                                IDENTITY OF PARTIES




Trial Judge Michael Snipes
Criminal District Court No. 7

Frank Crowley Courts Bldg.

133 River Front Blvd.

Dallas, Texas 75207-4313




Prosecuting Attorneys

Ms. Stephanie Mitchell

Ms. J. Chris Hawkins

133 N. Riverfront 9th Floor, LB19

Dallas, Texas 75207-4313



Public Defenders

Mr. Christopher Thoirpson/Mr. Phillip Hays
133 N. Riverfront 9th Floor, LB2

Dallas, Texas 75207-4313



Riann C. Moore

133 N. Riverfront, 9th Floor, LB2

Dallas, Texas 75207-4313
                                  TABLE OF CONTENTS                  PAGE #

IDENTITY OF PARTIES                                                   i

TABLE OF CONTENTS                                  ".                 ii

INDEX OF AUTHORITIES                                                  ili-iv

I.   STATEMENT OF THE CASE.                                           1

II. STATEMENT OF PROCEDURAL HISTORY                                   1, 2

III. GROUNDS FOR REVIEW                                               3

     1. PROSECUTORIAL MISCONDUCT - REVEALING PRIOR CRIMINAL HIS-
          DURING READING OF THE CHARGES

     2. LEGAL AND FACTUAL INSUFFICIENCY OF EVIDENCE

     3. VIOLATION OF BRADY RULE-WITHHOLDING FAVORABLE EVIDENCE
          FROM JURY

     4. PROSECUTORIAL MISCONDUCT-ELICITING HEARSAY TESTIMONY

     5. INEFFECTIVE ASSISTANCE OF COUNSEL

     6.   ABUSE OF DISCRETION BY TRIAL JUDGE-FAILING TO GRANT
          MOTION FOR DIRECTED VERDICT

     7. ABUSE OF DISCRETION BY TRIAL JUDGE-INTERFERRING WITH
          DEFENSE ATTORNEY/BIAS

IV. ARGUMENT                                                              3,11

PRAYER FOR RELIEF                                                         11

VERIFICATION                                                    .'        12
CERTIFICATE OF SERVICE                                                    12




                                          11
CASE IAW                      INDEX OF AUTHORITIES   PAGE #

STATUTES, ROLES, CaSELBW



28 U.S.C. § 1746                                      9
28 U.S.C. § 2254                                       12




SUPREME COURT CASES



Barker v. Wingo, 92 S.Ct. 2182 (1972)                 10
Blackburn v. Alabama, 80 S.Ct. 174 (196)              4
Francis v. Bacon, 105 S.Ct. 1965 (1985)               3
Haines v. Kerner, 92 S.Ct. 594 (1972)                 3
Michigan v. Gallagher, 103 S.Ct. 1189 (1988)          4
Roberts v. Ohio, 100 S.Ct. 2531 (1981)                8
Rose v. Clark, 106 S.Ct. 3101 (1986)                  11
Runyan v. U.S., 113 S.Ct. 137 (2002)..                9
Singer v. U.S., 85 S.Ct. 783 (1965)...                n
Strickland v. Washington, 104 S.Ct. 2052 (1984)       H
Weatherford v. Bursey, 97 S.Ct. 837 (1977)            H




FEDERAL REPORTER




Pamplin v. Mason, 364 F.2d 1 (5th Cir 1966)           10

Runyan v. U.S., 290 F.3d 223 (5th Cir 2002)           9
Wiggins v. Procunier, 753 F.2d 1318 (5th Cir 1985)    3


STATE STATUTES, RULES, CASELAW



Texas Penal Code § 22.01                              5
Texas Penal Code § 22.02                              5
Texas Penal Code § 30.02(a)                           5
Texas Rules Appellate Procedure § 68.1                1
Texas Rules Evidence Rule 803(22)                     3, 4


                                        in
CASE LAW                     INDEX OF AUTHORITIES           PAGE #


STATE STATOTES, RULES, CASELAW




SOUTHWEST REPORTER



Anderson v. State, 871 S.W.2d 900 (Tx.Cr.App. 1994)          5
Bignall v. State, 887 S.W.2d 21 (Tx.Cr.App. 1994)            7
Bonnet v. State, 938 S.W.2d 532 (Tx.App.-Austin 1997)        7
Clewis v. State, 992 S.W.2d 126 (Tx.Cr.App. 1996)            4, 6
Gaffney v. State, 937 S.W.2d 540 (Tx.App.-Texarkana 1996)    5, 7
McElhaney v. State, 899 S.W.2d 15 (Tx.App.-Tyler 1995)..     7
Rosales v. State, 932 S.W.2d 530 (Tx.App.-Tyler 1995)        11
Royal v. State, 944 S.W.2d 33 (Tx.App.-Texarkana 1997)       5
Saunders v. State, 840 S.W.2d 390 (Tx.Cr.App. 1992)          7




                                      IV
                            Cause No.



                                                    IN THE

                                  TEXAS COURT OF CRIMINAL APPEALS




DARRELL DEWAYNE SNEED
Petitioner

                                                           TRIAL COURT CASE #Fll-60730-Y
vs.
                                                           COURT OF APPEALS CASE #05-12-01061-CR
THE STATE OF TEXAS
                                                      §
Respondent                                            §




                                 PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE JUDGE OF SAID COURT:

       COMES       NOW, Darrell Dewayne Sneed, Petitioner, pro-se, in the above styled

and     numbered      cause,     and    respectfully files this Petition For Discretionary

Review       pursuant      to   Rule    68.1    T.R.A.P., and would show the Honorable Court

the following:

                                       I. STATEMENT OF THE CASE


       On 10 July, 2011, at the 1 203rd Judicial District Court of Dallas County,

Texas,       the    Petitioner     was convicted of unlawfully, intentionally, and know

ingly     entered      a   habitation without the effective consent of Tamikah Coffee.

He     was   furthermore        convicted      of   committing bodily iniury, family violence

enhanced, by a iury.            The trial judge sentenced the Petitioner to imprisonment

in     the   Texas Department of Criminal Justice-Correctional Institutional Divi

sion     (herein      after TDCJ-CID), for (30) thirty years.           Due to numerous viola

tions of the Petitioner's due process rights, this appeal follows.

                                II. STATEMENT OF PROCEDURAL HISTORY


(1)       The      Court   of Appeals - Fifth District of Texas at Dallas affirmed the

      conviction on October 30, 2014.




                                                     -1-
(2)         No Motion for Rehearing was filed.

NOTE: Oral Argument is not requested.

                                           III. GROUNDS FOR REVIEW


1.        Was    it     Prosecutorial       Misconduct for the prosecutor to read to the Jury

     of    defendant's        rarior      criminal    history       during the reading of the charges

and indictment to the jury?                  (R.R. Vol. 5 of 7, pg. 5, In 20 - In 3).

2.        Did    the     prosecution        legally    and    factually prove the ease against the

 defendant beyond a reasonable doubt as required by law?

3.        Was defendant's due process rights, violated when a,police report favorable

     to    the   defendant         withheld     by the Court due to inability of its author to

 appear          to     testify,    considering        it     is official State record?    (R.R. Vol.

     6 of 7, pg. 39* Ins 10 - pg. 40, In 16).

4.        Was    it     prosecutorial       misconduct        for    the prosecutor to elicit hearsay

     testimony         of a State's witness in violation of the Rules of Evidence? (R.R.

 Vol. 6 of 7, pg. 30, In 1 - pg..31, In 5).

5.        Was    it     ineffective assistance of counsel..for defense counsel's multiple

     failures         in rendering effective assistance of counsel at the trial?              During

     the    trial      he failed to object to prosecutor reading prior criminal history

 at start              of guilt/innocence         phase of trial, (R.R. Vol. 5 of 7, pg. 5, In

     20    to    pg.     6,   In    3);    failure to argue the Motion for a Directed Verdict

 when prosecutor failed to prove each essential element of the charges (R.R.

 Vol.        6    of 7, pg. 43, In 15-16); failed to object to trial judge not giving

 him proper             amount     of time       for closing argument in guilt/innocence phase

 of trial              (R.R. Vol. 6 of 7. pgs 45, in 14 - pg. 46, In 4); failure to hold

     the State to their burden of proof.

6.        Was    it abuse of discretion.by trial judge to fail to hold the prosecutor

     to    his   burden       of    proving     every    essential element of the charges beyond



                                                        -2-
     a   reasonable doubt?


li        Did    trial     judge   abuse     his    discretion in.forcing the defense attorney

     to      give    his   closing arguments         in the guilt/innocence phase of the trial

     within      a    five minute time period despite protests of the defense attorney?

     (R.R. Vol. 6 of 7, pg. 45, In 15 - pg. 46, In 4)

                                                    NOTICE


         The    Petitioner is not trained, in the science of law and prays this Honor

able Court not to hold him to the.same stringent standards as a licensed att

orney pursuant to: Haines v. Kemer, 92 S.Ct. 594 (1972) and Wiggins v.                        Pro

cunier, 753 F.2d 1318 (5th Cir 1985).

                                               IV. ARGUMENT


1.       PROSECUTORIAL MISCONDUCT


         According     to Rule      803,     Hearsay Exceptions, (22) Judgement of Previous

Conviction,'...In            criminal      cases,    evidence     of   a   judgement, entered after

trial ,or upon, a plea of guilty or nolo contendere, adjudjing a person guilty

of       a     criminal    offense, to.prove any fact essential to. sustain the judgement

of       conviction, but not including when offered by the State for purposes other

than impeachment, judgements against, persons other than the accused.'

         In     the instant case at bar, when the Jury was seated, the prosecutor read

the charges to the Jury including prior domestic violence enhancement.                       (R.R.
Vol. 5 of 7, pg. 5, In 20 - pg. 6, In 3).

          "Foregoing constitutional principle prohibits state from using evidentiary

presumptions           in a jury charge             that    have, the effect of relieving state of

its burden of persuasion beyond a. reasonable doubt of. every essential element

of a.crime."           U.S.C.A. 14, Francis v. Bacon, 105 S.Ct. 1965 (1985).

     . The trial court judge did catch the error and held a hearing outside the

presence of the Jury.                   It was denied not to tell the Jury to disregard the



                                                      -3-
error in           hopes          they did not hear or comprehend it.             (R.R. Vol. Supplemental

Volume, pgs. 11, In 5, through pg. 13, In 9).

      To just ignore the error does not correct it.                          It should be further noted,

the    trial           judges statement on page 11, lines 6-7, "This is a hearing on what

appears          to       be,     again,    a   possibly significant error."           The Petitioner, who

is    not      a       lawyer trained in the science of law, and whom has only been given

limited          trial          records    must     ask     this   Court,   "What other violations of the

Petitioner's               constitutional          rights    has    this    judge arbitrarily covered up?

And was the court appointed counsel a party to it?"

      The        guilt/innocence phase of the trial begins with testimony of the Peti

tioner's prior convictions.- Not impeached - as required under Rule 803 (R.R.,

Vol.       5     of       7, pg. 9 - 12).          "Due process clause of the 14th Amendment to the

federal constitution forbids                       fundamental       unfairness   in   use   of   evidence,

whether true or false, in criminal prosecution."                            Blackburn v. Alabama,       80

S.Ct. 174 (1960).

       "The        Court         is: abliged       to   grant a new trial where the error is such as

to    deprive             the    accused     of a fair and impartial trial, as in the case which

might have affected the verdict."                         Michigan v. Gallagher, 103 S.Ct. 1189 (1988)

When       the        first       thing    heard by the jury was two prior convictions, both the

same nature as the instant charges, conviction was a foregone conclusion.

2.    LEGAL AND FACTUAL ^SUFFICIENCY OF EVIDENCE


      In       the        instant ease at bar, the Petitioner argues the prosecution failed

to    prove          every       essential        element     of   the charge of assault causing bodily

injury, and burglary of a habitation - family violence enhanced.

       "When         an     appellant       challenges        the legal and factual sufficiency of the

evidence,            we first determine whether evidence adduced at the trial is legally

sufficient to support the verdict."                         Clewis v. State, 992 S.W.2d 126, 135(Tex.



                                                             -4-
Crim.App. 1996);               Gaffney v. State, 937                S.W.2d   540,   541   (Tx.App.-Texarkana

1996,     pet.       ref'd).           "The       standard      for   reviewing the legal sufficiency of

the     evidence          is    whether, after reviewing the evidence most favorable to the

verdict,       any        rational       trier of fact could have found the essential elements

of the crime beyond a reasonable doubt."                            Royal v. State, 944       S.W.2d    33,

35 (Tx.App.-Texarkana 1997, pet. ref'd); Gaffney, supra, at 541.                               "If there is

any     evidence          that       would establish guilt beyond a reasonable doubt, the con

viction will not be reversed."                         Anderson v. State, 871 S.W.2d 900, 902 (Tx.Cr.

App. 1994).

       Burglary       of       a habitation under Texas Penal Code, § 30.02(a)(Vernon 1994)

states in part, "entering a habitation and committing or attempting to comit a

felony."         And       under       Texas          Penal   Code, § 27.02 (Vernon 1994),      "Aggravated

assault        is    an        act    where       a    person intentionally, knowingly, or recklessly

causes     serious         bodily injury to another or                  uses or exhibits a deadly weapon

during     commission            of     an    assault."         Texas Penal Code, § 22.01 (Vernon 1994)

states,        "An    assault          is    an       act where a parson intentionally, knowingly, or

recklessly          causes bodily injury to another or threatens another with imminent

bodily injury."

     The testimony from the alleged victim was that the defendant and the Plain

tiff     had an on again/off again sexual relationship.. (R.R. Vol. 5 of 7, pg.

24     through       pg. 25).          She says it was the first time he had come to her house

(pg.     26,     In 4-5),            yet says he left some property at her home, (pg. 29, Ins

7-11).         She    says       she     opened         the door a little ("about a foot") and handed

him     his    bag.            She    then testified he had. stayed at her house a total of ten

days.     (pg.       30,       In 8).         She       later states she saw him looking past her, so

she     opened       the       door     another foot and said, "You can look in here.               There's

nobody     in here,             Darrell.          I just don't want you anymore."          (Vol 5 of 7, pg.



                                                              -5-
      31,     Ins        7-10).       This statement could have easily sounded like an invitation

      to     come        inside     and     look       around.     Hardly entering a habitation to commit a

      felony        or     attempting to commit a felony.                  There was then an attempt to enter

      the habitation.              Not before the invitation.              There was no entry.

             During the pushing and shoving, the door struck the Plaintiff on her head,

      (pg 33, Ins 24-25).                 In the Supplemental Brief, page 14, Ins. 6-11, the alleged

      victim admits she hit her head on the door.                          There was no intent by the defen- '

      dant     to        cause     any     bodily injury, and the prosecution failed to prove every

      essential           element     of       the    charge.       This   the state failed to do.      In fact,

      when     the defense             counsel        motioned      for a directed verdict, the trial judge

      made     the        comment        "I'm    going     to deny the motion, although I must say, it's

      just     very       narrow."          (Supplemental Vol., pg. 43, Ins 15-16).           When one stops

      to     consider        the      situation,         to enter, the door one pushes it open, not shut.
"**
      The     Plaintiff           injured       both     sides of her head from slanming her own body in

      the door.          Note the position of the injury in Exhibit Volume pages 27-29.

            Can you blame the defendant for a self-inflicted injury?                       Had the Petitioner

      been afforded adequate representation, this.point would have been highlighted.

      Thus, legal sufficiency was not proven in the slightest.

            Nor was the case of entering in the residence, or assault proved as required

      by law.

             "In     conducting           a factual sufficiency review, we review the fact finder's

      weighing       of the evidence in an appropriately deferential way to avoid substi

      tuting our judgement for that of the fact finder."                          Clewis, supra,   at      135.

      "We    review        all     evidence without               the prism of "in the light most favorable

      to the prosecution,                and    set     aside      the verdict only if it is so contrary to

      the     overwhelming weight                    of the evidence as to be clearly wrong or unjust."

      Clewis, supra,             at   135.       "If     we      find rthe evidence factually insufficient,



                                                                  -6-
we reverse and remand the cause for a new trial."                           Gaffney, supra, at 541.

"Anything         more than a scintilla of evidence is sufficient to entitle a defen

dant to a lesser charge."                  Bignall v. State , 887 S.W.2d 21 (Tx.Cr.App. 1994).

       "There        are two ways in which the evidence may raise the issue of a lesser

included         offense.         First there may be evidence which refutes or negates evi

dence of the greater offense."                      Saunders v. State,. 840 S.W.2d 390, 391 (Tx.Cr.

App.        1992).         "Second, there may be evidence subject to different interpreta

tions implicating, the lesser included offense."                        Id., at 392.    "The determina

tion        of   whether         these    offenses are lesser .included offenses of burglary.of

a    habitation           must     be    made on a case by case basis, because lesser included

are     defined           in    terms    of    the facts of the case as well as the terms of the

offense."         Bonnet v. State, 938              S.W.2d 532 (Tx.App.-Austin 1997, pet. ref'd).

"The        second      prong      of    the test requires an examination of the record to see

whether          it presents an alternative factual scenario which, if believed, would

support a finding of the lesser offense."                         McElhaney v. State, 899   S.W.2d    15,

18 (Tx.App.-Tyler 1995, pet.ref'd, untimely filed).

       So     the      question is, does the record contain evidence that if guilty, he

is guilty of only simple assault, and therefore criminal trespass.

     An examination of the lesser included offense definition is:

1.     Burglary of a habitation with intent to commit misdemeanor assault.

2. Assault/enhanced,                   which   is    a    third    degree   felony of assault/enhanced

    is intentionally, knowingly, or recklessly causing bodily injury to another.

3.     Reckless,          or     simple    assault       for just disregarding the fact that he hit

    her with the door.


       What      was      not proven, that is an essential element of.all the offense de

scriptions           is    intentionally,        knowingly        or recklessly causing bodily injury

to     another.           Had    the     Petitioner      intended     to assault the Plaintiff, would




                                                          -7-
it    not    have        been easier for him to simply strike her in the face, or simply

knock       her     to    the      floor?          He     was bigger than.the Plaintiff and stronger.

The     fact      is      the    Plaintiff had her head stuck outside the door when she hit

herself      on        both     sides of her head (NOTE the same place on both sides of the

head)       while        trying to slam it shut.               It would not be possible for the defen

dant to try to enter the home by closing the door.

3.    DENIAL DUE PROCESS - WITHHOLDING EVIDENCE FAVORABLE TO PETUTCMER

      During the              trial    a     police report from Officer Sain was produced.              When

the     defense          counsel      attempted           to have a supervisor of Officer Sain testify

to    its      contents,         the    Court refused to allow it.              Officer Sain was deployed

to    the      Middle East and could not appear to testify.                         The prosecutor produced

documents          verifying          his    deployment.           The   trial court refused to allow the

defense        to      question        Officer Sain's supervisor on what was in the police re

port.

      In Roberts v. Ohio, 100                     S.Ct.    2531    (1980),    the   Supreme Court discussed

the confrontation issues raised by hearsay and directed the following require

ments be met before an out-of-court statement                              should be admitted.

       In    sum,        when    a     hearsay          declarant is not. present for cross-examination

at     trial,       the       Confrontation             Clause normally requires a showing that he is

unavailable,             and    then    his statement is admissible only if it. bears adequate

'indicia          of reliability.'            Reliability can be inferred within a firmly rooted

hearsay        exception.             In other cases, the evidence must be excluded, at least

absent a showing of articularized guarantees of trustworthiness."                                   Roberts,

supra, at 2531.

      The police              officer        is     considered a trustworthy official.           Officer Sain

had no personal                 interests           in the case.         His police report was an official
document,           is normally             used     at    any crime scene, and does record the police



                                                             -8-
officer's         daily       contacts           with    incidents      he is called to investigate.   The

only     true      reason       the        prosecutor did not want it shown to the jury and read

at     trial      was     it proved the Plaintiff lied on the witness stand.                    As already

shown,       she       changed       her testimony even on the witness stand.               Under the Con

frontation         Clause,          the     Petitioner has            a constitutional right to have the

jury hear and see what Officer Sain wrote in the official police report.
Note,    the Court Reporter                       failed       to provide a copy of Report Exhibit I for

the trial transcripts.

       "...if      the applicant                 challenges         the sufficiency of evidence adduced in

such state             court     proceedings            to support the state court's determination of

a    factual issue made therein, the Applicant, if able, shall produce the State

Court's        part      of     the       record pertinent to a determination of the sufficiency

of     the     evidence         to       support        such    determination.    If Applicant, because of

indigency or other reasonis                       unable       to    produce   such part of the record, the

appropriate official shall do so."                         28 U.S.C.. § 2254(B) (f).

       The     Petitioner           has     no source of income, and no way to procure a copy of

Record Exhibit I.

       "Evidence         is     material          under    Brady when there is reasonable probability

that     the       outcome          of     the     trial would have been different if the suppressed

evidence been disclosed to the [jury]."                              Runyan v. U.S., 290 F.3d 223, reh.den.

37 Fed.Appx. 93; cert.denied, 113 S.Ct. 137 (5th Cir 2002).

4.      ABUSE OF DISCRETION OF TRIAL JUDGE


       "The       State       has        a duty is insuring that the trial is consistant with due

process."          Barker v. Wingo, 92 S.Ct. 2182 (1972).

       During          this    entire        trial       the    trial judge disregarded the Petitioner's

right        to    a    fair and impartial trial.                    He himself acted as the State's advo

cate.        Note       he     himself           mentions, "This is a hearing on what appears to be,



                                                               -9-
again,       a    possible         significant error."             (R.R. Vol. Supplemental Vol. pg. 11,

In 6-8).             In    the     Supplement Vol., pg. 43, during, the hearing on Motion For

Directed         Verdict         the   Judge himself stated "Okay.             What I'm concerned about

is     the       INTENT     to     commit       assault     in this particular case."       Lines 10-11.

The State            did not prove the essential element of "intent to commit assault,"

yet     the      Judge      denied the Motion stating, "I'm going to deny the motion, al

though I must say it's just very narrow."

      Then when the Court Judge asked how much time was needed for final argument,

defense          counsel        stated "Ten.Minutes."            The Judge then protested, saying "You

need     that        much."        The      State    said     they'd do it in "five."       Defense lawyer

said,        "Really       five,       I    mean,    with     these short cases."     Not concerned with

defendant's           right to effective assistance of counsel,, the trial judge stated,

"Had     a       one-witness        case, really.           Okay.    I want this case to go to the jury

by lunchtime."                  Defense      counsel's       response, "Five will be fine."       (Supple

mental        Vol.       pgs.     45^46).        Further      note that the defense counsel took less

than five minutes and                  failed       to   argue     any   points of evidence to the jury,

while the          prosecution took ten minutes.                     No. objection from the Judge.    (See

R.R.     Vol.        6    of 7, pgs. 6-9 (state); 9-10 Ins. 23-                    (defense) pages 10-16

(state).          Approximately             1   page for the defense and 10 pages of argument for

the prosecutor.

       "Requirement             of impartiality in criminal trial includes entire atmosphere

in which the trial is conducted."                        Panplin v. Mason, 364       F.2d     1   (5th Cir

1966).

       In     the     Supplemental           Vol. pgs. 44-45, the charges to be presented to the

Jury     hadn't           even    been      given a proper review.         Note, the Court Reporter did

not     bother        to    print          the Court's charge in R.R. Vol. 6, pg. 5, In 20, so it

is unknown if it was even correct.




                                                            -10-
      "Trial      Court     has    responsibility     of conducting orderly trial and making

record;      requiring       attorneys to waive or object is within parameter of proper

comment."       Rosales v. State, 932 S.W.2d 530, pet.ref'd. (Tx.App.-Tyler 1995).

      This      trial     was not within the parameters set by the Supreme Court or the

U.S. Constitution.          Rose v. Clark, 106 S.Ct. 3101 (1986);           Weaterford      v.

Bursey, 97 S.Ct. 837 (1977); Singer v. U.S., 85 S.Ct. 783 (1965).

ntHttECTlVE ASSISTANCE OF COUNSEL


     This attorney failed to investigate, failed to argue the essential elements

of    the    charges,       failed    to procure alternate witnesses or a tele-conference

with Officer' Sain,           a     key defense      witness; failed to argue the Motion For

Directed Verdict;           failed to render effective assistance of counsel through
out the trial.


     Under Strickland v. Washington, 104              S.Ct.   2052 (1984) Supreme Court stan

dards, the Petitioner was denied effective assistance of counsel.

                                            PRAYER FOR RELIEF


     WHEREFORE, ALL PREMISES CONSIDERED, because the prosecution               did   fail   to

prove     the    essential        element of intent; withheld the favorable police report

from the        jury;     prosecution's illegal introduction of prior criminal history
during      reading of the           charges;     prosecution eliciting hearsay testimony of

State    witness;       biased      judge    on the bench affecting the defense counsel's

ability to represent his client; and ineffective assistance of counsel.

     The Petitioner prays this Honorable Court hold its own evidentiary hearing,

especially       on     the contents        of Record Exhibit Number I, to determine if the

Petitioner has proved his allegations, and GRANT a reversal of the conviction,

and grant him a new trial.                                            /n
                                             rx                 /-\   ( I


         Respectfully Submitted,
                                                                            £H2nb\sl
                                            Darrell Dewayne Sneed, TDCJ-CID #1800663
                                            Mac Stringfellow Unit, 1200 F.M. 655
                                                  -11-
                                             Rosharon, Texas 77583

                                          VERIFICATION


      I,    Darrell Dewayne Sneed, Petitioner, pro-se in the above styled and num

bered      Petition   For    Discretionary       Reviw    do hereby verify and declare under

penalty of perjury, that the           statements       contained   in   this   P.D.R. are true

and correct.      Affirmation made pursuant to 28 U.S.C. § 1746.



           EXECUTED on this the^lp day of j jQPPMB&r                            , 2014.


                       Darrell Dewayne Sneed, TDCJ-CID #1800663
                                       Petitioner, Pro-Se

                                     CERTU?'ICATE OF SERVICE


    I, Darrell     Dewayne    Sneed,     being    currently     incarcerated in the TDCJ-CID

in Brazoria       County,    Texas,     do    hereby certify that a copy of this Petition

For   Discretionary     Review has been served by placing the same in the Internal

Mailing System at the Stringfellow Unit, an approved recepticle of the U.S.M.S.

a   true    and   correct    copy,     postage    prepaid,, first class mail, addressed to

the following:



                              Dallas County District Attorney
                               Frank Crowley Courts Building
                        133 N. Riverfront Blvd., 9th Floor LB19

                                      Dallas, Texas 75207


                                               AND TO



                                State Prosecuting Attorney
                              P.O. Box 12405, Capitol Station
                                      Austin, Texas 78711




                                                -12-
»




                       ^P) day of S)QC£iY}hQjr
    EXECUTED on this the                               , 2014.


             Darrel Dewayne Sneed, TDCJ-CID #1800663
                       Petitioner, Pro-Se




                              -13-
Affirmed and Opinion Filed October 30, 2014




                                              In The

                                     Court nf Appeals
                          ifftftlf Btatrtct nf atexas at Ballas
                                       No. 05-12-01061-CR

                           DARRELL DEWAYNE SNEED, Appellant
                                                V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the Criminal District Court No. 7
                                      Dallas County, Texas
                               Trial Court Cause No. F11-60730-Y


                              MEMORANDUM OPINION
                            Before Justices Bridges, Francis, and Myers
                                    Opinion by Justice Francis
          A jury convicted Darrell Dewayne Sneed of burglary of a habitation, and the trial court

assessed punishment at thirty years in prison. In two issues, appellant challenges the legal

sufficiency of the evidence to support his conviction and the assessment of court costs. We

affirm.

          Tamika Coffee and appellant began dating in September 2010. By the fall of 2011,

Coffee wanted to end the relationship. On October 6, appellant came to her house uninvited and

knocked on the door for several minutes. Coffee did not answer the door. Appellant left and

then called Coffee on her cell phone. She did not answer. An hour later, appellant returned to

Coffee's home and again began knocking on her door. Coffee had a bag containing personal
items that appellant had previously left at her house. Thinking he might want his belongings,
Coffee grabbed the bag and opened the door "about a foot" so that she could hand it to him.

Appellant said he wanted to talk, but Coffee told him it was over and she did not want anything

else to do with him. When she noticed appellant looking past her into her house, she opened the

door "about another foot" so that he could see no one was with her and understand she just did

not "want" him anymore. When Coffee tried to close the door, appellant had placed his foot in

the doorway. She told appellant to move his foot, but he "stood there solid." When she told him

again, she said he made a motion to "like, step on in" and she tried to push him out. The two

struggled over the door, and as appellant tried to push it open, the door hit Coffee in the head and

injured her. (Photographs depicting the injury were admitted into evidence.) Coffee said she

pushed appellant as hard as she could, which caused him to lift his foot, and Coffee was able to

slam the door and lock it.

       After locking the door, Coffee said she heard nothing. She looked out her front window,

but did not see appellant. She was worried he might try to break in the back, so she got her

weapon, a 32-caliber revolver, and checked the back. She did not see appellant there. She then

went outside to check a vehicle in the front and saw appellant walking toward the highway and

away from her home. At the same time, her phone rang. Coffee answered, and appellant said he

wanted to talk to her. Coffee told him to leave her alone. Appellant immediately turned around

and started walking toward her home at a "speedy pace." Coffee called 911. While she was on

the front porch talking with the police dispatcher, appellant approached from a blind spot and

attacked her. Coffee pulled the trigger on her gun twice, and he backed away. When appellant

rushed her again, she fired twice more.

        In his first issue, appellant complains the trial court erred by denying his motion for

directed verdict because there is "no evidence he entered the habitation with the intent to commit




                                                 -2-
assault." Instead, he argues, the evidence shows that he wanted to talk with Coffee and "was

trying to look inside the residence to ascertain if anyone else was present."

       A complaint about the denial of a motion for directed verdict is treated the same as a

challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.

Crim. App. 1996). Evidence is legally sufficient when, viewed in the light most favorable to the

verdict, a rational jury could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard accounts for the

factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007).

       A person commits burglary if, without the effective consent of the owner, he (1) enters a

habitation, or a building not then open to the public, with intent to commit a felony, theft, or an

assault; or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a

building or habitation; or (3) enters a building or habitation and commits or attempts to commit a

felony, theft, or an assault.     See Tex. Penal Code Ann. § 30.02(a)(l-3) (West 2011).

Habitation is defined as "a structure . . . that is adapted for the overnight accommodation of

persons and includes (A) each separately secured or occupied portion of the structure . . . and (B)

each structure appurtenant to or connected with the structure .... Id. § 30.01(1)(A), (B). Enter

is defined as to intrude "any part of the body" or "any physical object connected with the body."

Id. § 30.02(b).

        In this case, the indictment alleged appellant entered Coffee's habitation without her

consent and committed assault causing bodily injury/family violence enhanced, a violation of

subsection (3). See id. § 30.02(a)(3). The application paragraph of the jury charge tracked the
language of the indictment.1 The basis of appellant's complaint, however, is that the evidence

was not sufficient to prove he entered the residence with the intent to commit assault, which is a

violation under section 30.02(a)(1). While the intent to commit a felony or theft must exist at the

moment of the entry under subsection (a)(1), the attempted or completed theft or felony required

by subsection (a)(3) "supplantsthe specific intentwhich accompanies entry in §§ 30.02(a)(1) and

(2)[.]" See DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988). Because appellant

was not charged under subsection (a)(1), the State was not required to prove that appellant

intended to commit an assault at the time he entered the residence. See id. & n.4. Rather, the

State had to prove appellant entered Coffee's habitation without her consent and assaulted her.

         Viewed in the light most favorable to the verdict, the evidence showed appellant went to

Coffee's house uninvited, knocked on the door for several minutes, and left when she would not

answer. He returned an hour later, again knocking, and Coffee opened the door to give him

property he had left at her house. She told appellant their relationship was over. When she tried
to close the door, he intruded a part of his body, his foot, into the habitation by placing it in the

doorway. As appellant pushed on the door to open it further, the door hit Coffee in the head and

caused her bodily injury.                 From these facts, a rational jury could have found, beyond a

reasonable doubt, that appellant intentionally or knowingly entered Coffee's habitation without

her consent and committed assaultcausing bodily injury/family violence enhanced. We overrule

the first issue.

          In his second issue, appellant contends the evidence is insufficient to support the trial

court's assessment of court costs in the judgment because the clerk's record does not contain a

bill of costs. A supplemental clerk's record was filed, prior to the filing of appellant's brief,


     1We note that the jury charge referred to the offense as "burglary of a habitation with intent to commit felony assault/family violence
enhanced." The application paragraph, however, correctly set out the elements ofsubsection (a)(3) and tracked the language ofthe indictment.


                                                                   -4-
containing the bill of costs. Appellant raises no other complaint. We overrule the second issue.

We affirm the trial court's judgment.




Do Not Publish
Tex. R. App. P. 47                                /Molly Francis/
121061F.U05                                       MOLLY FRANCIS
                                                  JUSTICE




                                               -5-
                               Court of Appeals
                      iFtftlj district of utexaa at Batlas
                                     JUDGMENT


DARRELL DEWAYNE SNEED, Appellant                   On Appeal from the Criminal District Court
                                                   No. 7, Dallas County, Texas
No. 05-12-01061-CR       V.                        Trial Court Cause No. Fl 1-60730-Y.
                                                   Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                       Justices Bridges and Myers participating.

      Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered October 30, 2014.




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