                                                                                          ACCEPTED
                                                                                     12-13-00136-CR
                                                                          TWELFTH COURT OF APPEALS
                                                                                      TYLER, TEXAS
                                                                                1/20/2015 8:20:20 AM
                                                                                        CATHY LUSK
                                                                                              CLERK

                               No. 12-13-00136-CR

ROBERT LYNN PRIDGEN,             §     IN THE TWELFTH COURT   FILED IN
                                 §                     12th COURT OF APPEALS
                                                            TYLER, TEXAS
      Appellant,                 §                     1/20/2015 8:20:20 AM
                                 §     OF APPEALS           CATHY S. LUSK
vs.                              §                              Clerk
                                 §
THE STATE OF TEXAS               §     TYLER, TEXAS
________________________________________________________________________

              APPELLANT’S MOTION FOR REHEARING
________________________________________________________________________

        Respectfully, the Court’s decisional analysis falls short in three critical

respects:

     • It applies a constitutionally deficient standard of review.

     • It misapplies the substantive elements of self-defense.

     • And it gets the admission-of-evidence analysis wrong.

Any one of these errors should require a rehearing. Together, they simply

leave no choice but to rehear the case.

I.      The Court has applied a constitutionally deficient standard of
        review.

        The Court’s expression of the no-reasonable doubt standard is correct.

But in the context of this case, that serves only as window dressing. While

announcing that murder must be proved and self-defense rejected beyond all

reasonable doubt – i.e., to a near-certainty – the Court actually has applied a

“no evidence” standard, which is prohibited by the Constitution and the U.S.
Supreme Court in criminal cases. In practice, the Court searched only for a

scintilla or mere modicum of incriminating evidence and, on finding such

proof, called it a day.

      This – the Court’s application of a constitutionally infirm standard of

review – is no mere technicality. The proof here misses the required mark

(i.e., the no-reasonable-doubt standard) so widely that we can negate the

State’s necessary showing by considering a single fact: Rohne was found

clutching a knife.

      The scientific proof about the knife – the only probative evidence

respecting the knife – was that it was equally probable that Rohne wielded

the knife as that he didn’t. See RR12:224 (Pathologist “I wouldn’t even

speculate.”). The responding officers’ comments (about a so-called death grip,

etc.) were pure surmise, eliminated as nonsense by the pathologist.

RR12:224. Those comments thus are non-probative under established

evidentiary principles precluding bald speculation.

      If Rohne held a knife, the case for murder crumbles, regardless how the

Court might analyze the other facts. The knife’s presence in Rohne’s hand

looms too large. The State has not even suggested that murder could be

sustained if Rohne wielded the knife. The remaining items of the State’s

“evidence” (such as the lack of signs of a struggle) either are so flimsy as to be

either utterly incapable of sustaining any inference in the State’s favor or, in


                                        2
the case of the few items that will sustain some sort of favorable inference,

will sustain only the weakest sort of inference. See infra. In these

circumstances, the unresolvable uncertainty surrounding the knife simply

swamps any possibility that the State’s case eliminated the reasonable doubt

against murder. The abject uncertainty about Rhone’s use of the knife means

the case for murder can really be no more probable than the case for self

defense. No rational jury apprised by the pathologist of the probabilities

respecting Rohne’s use of the knife could find murder beyond all reasonable

doubt.

      A.    The Court’s favored items of proof did not come close to
            eliminating reasonable doubt.

      The Court listed nine items of evidence that “permit[ed] a rational jury

to conclude that deadly force was not immediately necessary,” slip op. at 8:

      1.    Bruises on Rohne
      2.    Lack of signs of struggle
      3.    Rhone and Pridgen were intoxicated
      4.    911 call
      5.    Absence of prior confrontations
      6.    Rohne’s mellow demeanor
      7.    Weapon discharged at elevated position
      8.    Rohne’s position on loveseat with ankles crossed
      9.    Pridgen’s testimony he thought only of Rohne and the knife

      While an appellate court must presume that the trier of fact resolved

any conflicting inferences in favor of the prosecution, Jackson, 443 U.S. at

326, it isn’t within the jury’s province to speculate its way into a criminal



                                       3
conviction. Neither the Constitution nor the Supreme Court endorses such

methods. And yet any attempt to rationalize a murder verdict in this case

hinges on speculation that the knife was planted – by the same drunk who

made the bizarre 911 call the Court quotes.

      Worse, what this Court sees as conflicting inferences in the evidence

are not conflicting at all. Most of the items the Court cites just are not

probative and thus are incapable of sustaining any inference of murder. And

not one of these nine items rationally contradicts self-defense.

  Evidence        Supposition                   Rational Test
Non-Probative Evidence Equally Consistent with Murder or Self-Defense, and
     Therefore Incapable of Supporting Reasonable Inference of Murder
Bruises on      That Pridgen       Contradicted by science. The
Rohne           assaulted him     pathologist rejected the bruises as proof
                                  of Pridgen assault. RR12:216.

                                      The pathologist said the bruises
                                     could have existed for minutes or
                                     hours before the shot. RR12:215-16.

                                      Rohne was tall, heavy, and .33 alcohol
                                     drunk. More logical he stumbled and hit
                                     the floor or cabinet.

                                      Pridgen had no bruises himself. It is
                                     implausible that the smaller, weaker,
                                     sicker man inflicted bruises on the larger,
                                     stronger, younger man.




                                       4
   Evidence       Supposition                     Rational Test
Lack of signs of That Pridgen       The logical conclusion is that Pridgen
struggle         assaulted him     did not strike Rohne, there was no
                                   struggle and Rohne attempted to seduce
                                   Pridgen.

                                    The Court ignored the officer’s
                                   testimony that a man with a knife could
                                   stab a victim quickly unless victim acted
                                   fast. RR13:50-51.
Rhone and        In a stupor,       Why would Pridgen, in his own home,
Pridgen were     Pridgen decided   shoot a long time friend paying him rent,
intoxicated      to murder his     drunk or not?
                 friend
                                    The logical conclusion is that something
                                   unexpected occurred, increasing the vital
                                   need for Rohne’s photos to explain why.
911 Call         Pridgen’s          The 911 call is a neutral event. Pridgen
                 callousness       was drunk and in shock, equally logical
                 shows lack of     whether a murder or self-defense.
                 remorse
                                    Really, that he called 911 logically tilts
                                   toward self-defense because (1) he did not
                                   flee, (2) reconstruct the scene, (3) hide or
                                   rearrange the body, or (4) plant a gun.
Absence of       That Rohne did     Proof that something astonishing must
prior            not pull knife    have occurred to justify a shooting.
confrontations
                                    Additional reason why photos were
                                   vital to show why Rohne acted.




                                     5
         Probative, Albeit Weak, Evidence Such That a Rational Jury
               Could Infer Murder, Although the Jury Need Not
Rohne’s          That Rohne was  By science. Pathologist confirmed that
position on      sitting when       if Rohne was attempting to stand with a
loveseat with    shot               knife, and was shot by a shorter man,
ankles crossed                      gravity and the blast could have pushed
                                    Rohne back down into the seat,
                                    RR12:239-40, precisely what Pridgen
                                    said occurred, RR14:95-96, 119, 121-22.

                                     Police officer agreed. RR12:189.

                                     Pathologist explained alcohol’s
                                    destruction of fine motor skills and the
                                    ability to walk. RR12:223; also officer:
                                    12:180-81. That Rohne stumbled,
                                    tripped or crossed his feet is
                                    predictable.
Pridgen’s         That Pridgen       The knife alone was sufficient to shoot
testimony he      shot Rohne only   Rohne.
thought only of   because he had
Rohne and the     a large knife,     Further reason for the photos. Pridgen
knife, not rape   not for fear of did not know at the time of Rohne’s
                  rape            secret desires. He did know his larger,
                                  younger stronger friend had a knife and
                                  was reaching for him. He did not know
                                  why. But now we do.
Weapon            That Pridgen     Pridgen, who admitted standing, never
discharged at     was standing    contended that Rohne was fully standing
elevated          while Rohne was when shot. Rohne was rising with knife,
position          sitting         consistent with self-defense.

                                     The knife is the reason for self-defense.




                                      6
Rohne’s mellow That Rohne did         Again, the Court ignored the knife.
demeanor       not pull knife on     What is this mellow man doing with a 16-
               Pridgen or seek       ounce knife? And mellow people kill
               to rape               every day.

                                      The government’s assertion of Rohne’s
                                     phlegmatic personality is further reason
                                     why jurors needed to see his photos.

      Even if these items could establish a modicum of proof that, taken in

hindsight, deadly force was not necessary, there is nothing approaching proof

beyond a reasonable doubt that Pridgen did not in fact reasonably believe

such force was necessary when he pulled the trigger.

      Here, it bears restating: Pridgen’s reasonable belief that force was

necessary can’t be disproved beyond all reasonable doubt if there was a knife.

The only credible evidence respecting the knife (and thus the only proof the

jury could credit in its deliberation) shows the presence of a knife was equally

probable with its absence. And this means no rational fact-finder could

conclude that murder was proved beyond all reasonable doubt, even upon

considering every other fact but the knife in the light most favoring the State.




                                       7
      B.    The Court’s analysis ignores undisputed facts inconsistent
            with murder.

      This Court ignored the following seven items of incontestable fact:

    Evidence                             Proof of Self-Defense
The knife             Officers testified the one-pound knife is a deadly
                     weapon. RR13:42.

                      Only 2 possibilities exist, and they are equally
                     probable: (1) Pridgen planted the knife, for which no
                     proof exists, or (2) Rohne had the knife, and Pridgen had
                     the right to shoot him.
Pridgen’s home        The shooting was not in a honky-tonk. It was inside
                     Pridgen’s home, where he had every entitlement to self-
                     protection.

                      Logically, it is implausible he would plot murder in his
                     home, without any motive, but highly likely he would
                     defend himself given a knife threat.
The difference in     Pridgen was 55, shorter (5’ 8”), and suffering from
size, age and        chronic obstructive pulmonary disease, RR14:38.
condition of the
two men               Rohne was 15 years younger, 8 inches taller, and 90 lbs
                     heavier. SX53, 63; RR14:38, 50.

                      It is impossible that Pridgen inflicted bruises on Rohne
                     while receiving none, without disturbing the room.

                      But it does explain why Rohne selected Pridgen as a
                     victim.
Pridgen’s prison      Police verified that officers are trained to fire center of
guard training       the chest of knife attacker within 21 feet (now 27-feet)
                     because attacker at close range can stab faster than
                     officer can fire. RR13:43-44, 46-47, 50-51;12:191-92.
                     Pridgen, a former prison guard, is similarly trained and
                     acted instantly to the threat, firing center mass. His
                     instinctive reaction to fire tends to support that he faced
                     a real threat by a knife.




                                        8
     Evidence                         Proof of Self-Defense
Officer’s testimony    The government supplied a officer as an
that shooting in      uncontroverted expert who confirmed shooting under
response to knife     these circumstances is self-defense. RR13:46-47; 50-51.
wielder within 21     No reasonable juror can set aside that testimony
feet is appropriate   without reason, and none exists.
self-defense
Rohne changed to       Proof of his intent.
shorts which he
unfastened             Further demonstration of Pridgen’s need for the photos
                      to show why.
The government’s       In the absence of the photos, it is impossible for any
weak attempt at       rational person to believe a homeowner killed an easily
motive – to expel a   evicted month-to-month tenant.
renter
                       With the photos, it is rational to believe a homeowner
                      would shoot a larger, younger man attempting actual or
                      simulated rape.


      This Court must consider these facts if it is going to conduct a

sufficiency review consistent with the beyond-a-reasonable-doubt standard.

The Court’s refusal to consider them proves the Court applied a “scintilla” or

“mere modicum” test: having found 9 items it believes supply a modicum of

guilt evidence, the Court saw no point in examining any other record facts, no

matter how strongly they might point away from murder. Such analysis is

constitutionally wrong. “A ‘mere modicum’ of incriminating evidence cannot

‘by itself rationally support a conviction beyond a reasonable doubt.’” Jackson,

443 U.S. at 320 (citation omitted) (emphasis added); accord Brooks v. State,

323 S.W.3d 893, 916 & n.20 (Tex. 2010) (Cochran, J., concurring) (Agreeing

because, “Under a ‘no evidence’ standard, a reviewing court would affirm the


                                         9
judgment if any evidence supported the conviction.”) (emphasis added)

(Precisely what this Court did).

      The Court’s limited review of cherry-picked evidence, the kind of ‘no-

evidence’ review afforded in civil cases, is precisely barred in this criminal

suit. “[A] person accused of a crime . . . would be at a severe disadvantage, a

disadvantage amounting to a lack of fundamental fairness, if he could be

adjudged guilty and imprisoned for years on the strength of the same

evidence as would suffice in a civil case.” In re Winship, 397 U.S. 358, 363

(1970) (citation omitted) (emphasis added).

      C.    The murder verdict              cannot   withstand      a    proper
            evidentiary review.

      Application of the correct beyond-reasonable-doubt standard in

Pridgen’s case is not a rhetorical exercise: he will win his freedom if the Court

rigorously applies the standard. In Jackson the Supreme Court upended

decades of case law to impose the beyond a reasonable doubt safeguard for a

clear imperative: to protect innocent people like Pridgen from conviction. As

that court explained, the reasonable-doubt standard “is a prime instrument

for reducing the risk of convictions resting on factual error” and “provides

concrete substance for the presumption of innocence [which] . . . lies at the

foundation of the administration of our criminal law.’” In re Winship, 397

U.S. 358, 363 (1970) (citation omitted); Jackson v. Virginia, 443 U.S. at 315.



                                       10
      Pridgen should be acquitted on this record. And if a Texas jury had

seen Rohne’s photographs, Pridgen would have walked from the courtroom.

II.   The Court has not applied the correct substantive law of self
      defense.

      When it comes to the matter of self-defense, the Court hasn’t even

gotten the substantive elements right. The nub of the Court’s analysis, on

page eight of its slip opinion, is that certain items of cherry-picked proof

“permit[] a rational jury to conclude that deadly force was not immediately

necessary to protect Appellant from Rohne’s alleged use or attempted use of

unlawful deadly force.” Slip op. at 8. Respectfully, the question, as concerns

self-defense, is not whether a jury could in hindsight conclude that deadly

force was unnecessary, as the Court says. Id. It is instead whether a jury

rationally could conclude that Pridgen – clearly drunk and reacting in real

time – could not have formed a reasonable belief that deadly force was

necessary, see TEX. PENAL CODE ANN. § 9.32, and, further, could conclude

that this conclusion was established so soundly as to exist beyond any

reasonable doubt, to the point of near certainty. Jackson v. Virginia, 443 U.S.

307, 319 (1979) (“[B]y impressing upon the factfinder the need to reach a

subjective state of near certitude of the guilt of the accused, the standard

symbolizes the significance that our society attaches to the criminal

sanction”).



                                      11
      The question, as respects self defense under Penal Code Section 9.32, is

what Pridgen himself, in the critical instant and faced with the particular

circumstances, might reasonably have believed, when he pulled the trigger.

TEX. PENAL CODE ANN. §9.32(a). This statute imposes a clearly subjective

standard for self defense under which deadly force is justified “when and to

the degree the actor reasonably believes the deadly force is immediately

necessary . . . to prevent the other’s use or attempted use of unlawful deadly

force” or “to prevent the other’s imminent commission of . . . murder, sexual

assault, [or] aggravated sexual assault . . .”). Id. Under this statute, the

Court’s substitute analysis – which asks whether a detached observer, in the

calm and clarity of hindsight, could “conclude that deadly force [in fact] was

not immediately necessary,” slip op. at 8, is utterly beside the point. And, as

stated, for the jury to have validly rejected self-defense the State’s proof must

have gone far, far beyond merely “permit[ting] a rational jury to conclude”

that Pridgen lacked the necessary belief. Rather, that proof must have been

so strong that a jury rationally could say it eradicated any reasonable doubt

at all as to whether Pridgen, already drunk and suddenly confronted, could

have reasonably believed his use of force was necessary when he fired.




                                       12
III.   This Court’s dismissal of Rohne’s photographs conflicts with a
       proper relevance analysis.

       “A defendant has a fundamental right to present evidence of a
       defense as long as the evidence is relevant and is not excluded by
       an established evidentiary rule.”

             Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001)

       This Court rejected all the photographs taken by Rohne of himself and

offered by Pridgen to prove his statutory defense, solely on relevance

grounds. Respectfully, that evidence is relevant under Rules 401 and 402 and

thus constitutionally admissible because it is (1) material and (2) probative

toward a statutorily authorized defense.

       Evidence in a criminal trial is “relevant” if it has “any tendency to

make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the

evidence.” TEX. R. CR. EVID. 401. “All relevant evidence is admissible, except

as otherwise provided by . . . these rules . . . . Evidence which is not relevant

is inadmissible.” TEX. R. CR. EVID. 402.

            A. The photos are material            to   Pridgen’s    statutorily
               authorized defense.


        “The photographs, I’ll concede, there are some images of sexual
       violence. We are dealing with bondage and S&M nature, where
       people are in a superior position and an inferior position, where
       someone was being sometimes violently abused, and someone was
       receiving that violent abuse.”

             --- Prosecutor, RR2:11-12.

                                       13
      For evidence to be material it “must be shown to be addressed to the

proof of a material proposition, i.e., ‘any fact that is of consequence to the

determination of the action.’” Miller, 36 S.W.3d at 507. The photos of Rohne

role-playing sexual fantasies directly addressed the statutory defense jurors

were charged to decide: “[a] person is justified in using deadly force . . . to

prevent the other’s imminent . . . sexual assault or aggravated sexual

assault.” Jury Charge, CR152-53. The government conceded the violent

relevance at trial. RR2:11-12. The photos counter the government’s

contention that Pridgen fired to evict a tenant, and to answer the prosecutor’s

rhetorical question to jurors: “And who knows what went on that night?”

RR15:62-63. The State’s counter arguments alone can make evidence Rule

401 relevant. See Cooper v. State, 95 S.W.3d 488, 491 (Tex. App. --- Houston

[1st Dist.] 2002, no pet.). And, of course, the photos are vitally necessary to

rebut the government’s cries that Pridgen planted the knife.

            B. The photos are probative of self-defense.

      To be probative, “the proffered evidence must tend to make the

existence of the fact ‘more or less probable than it would be without the

evidence.’” Miller, 36 S.W.3d at 507. So what facts are made more or less

probable by the photos?


                                      14
            • That the lack of signs of struggle verify Rohne’s attempt to
              seduce or rape Pridgen.

            • That Rohne in fact had a knife.

            • That Rohne in fact grabbed Pridgen’s genitals.

            • That despite his otherwise mellow disposition, Rohne was
              capable of and possessed intent to commit sexual assault.

            • That Rohne in fact whispered ““Don’t get up. Just relax and
              enjoy the pleasure.”

            • That Rohne in fact picked up a large knife to enforce his lust.

            • That Rohne intended or simulated rape, or alternatively
              violence, with one man as submissive, the other dominant.

            • That Rohne’s bruises, whatever their source, had nothing to do
              with his advances on Pridgen or were self-inflicted using his
              sex toys (recall his chains and clamps).

            • That Rohne and Pridgen’s lack of prior confrontation is
              consistent and explained with the secret and threatening
              activities Rohne knew of but Pridgen did not.

            C. The photographs speak loudly for themselves and 12
               citizen jurors should be permitted to listen.

      This Court’s frankly astonishing assertion that, “There are no images

contained in Defense exhibits 1 through 27 that show Rohne acting as an

aggressor or engaging in homosexual conduct,” slip op. at 10, cannot be

reconciled with the images. First, whether Rohne is homosexual is beside the

point. Is this Court declaring that for one man to rape another, he must first

be proved to be homosexual? Who is to say that Rohne did not see this

encounter with Pridgen as a fresh opportunity to branch out from female



                                      15
prostitutes to male participants? What rational distinction can (or should) be

made between simulated violence against women and men, censuring the

one, and sanctioning the other?

      Remarkably, this Court has erected an artificial barrier to sexual

assault evidence: the evidence must be of a homosexual nature when the

victim and perpetrator are of the same gender. This is not only wrong, but is

a violation of the Equal Protection Clause of the Fourteenth Amendment. See

Craig v. Boren, 429 U.S. 190 (1976).

      Second, as the government conceded, RR12:11-12, the photos do show

Rohne as an aggressor:

         • 7 photos following page 28 of Pridgen’s brief show Rohne inflicted
           pain on himself with a genital clamp (proof his bruises may be
           self-inflicted);

         • 2 photos following page 29, and 1 following page 28, show that
           Rohne not only hired prostitutes, but supplied (or rented)
           restraint devices to simulate bondage and pain. Is payment to
           women to role-play in this manner not an aggressive act?

         • The photos following pages 31 (DX7) and 32 (DX12) display rope,
           penis clamps, handcuffs and chains --- designed to inflict pain
           and recognized as deadly weapons --- similar to a knife. See Hill
           v. State, 913 S.W.2d 581, 583 (Tex. Crim. App. 1996) (chain is
           deadly weapon); Castro v. State, 2006 Tex. App. LEXIS 704, 7
           (Tex. App. --- Houston [1st Dist.] Jan. 26, 2006, no pet.) (rope is
           deadly weapon); Smith v. State, 186 N.C. App. 57 (N.C. App.
           2007) (handcuffs as deadly weapon). Rohne simply kept the knife
           elsewhere in the house.




                                       16
              D. The Court arrogated an impermissible fact-weighing
                 and credibility assessment --- a role assigned to
                 Pridgen’s jurors.

       The Court wrote, “Appellant testified that he shot Rohne because he ―

‘was in fear of his life and thought Rhone was going to kill him.’ But as the

sole judge of witness credibility and the weight to be given their testimony,

the jury was free to disbelieve Appellant’s contention that he feared for his

life.” Slip op. at 8.

       We heartily agree. The problem is that this Court is withholding from

the jurors an entire class of evidence necessary for them to decide whether

Pridgen in fact “feared for his life.” Why did Rohne sit next to him on a

loveseat with shorts unfastened? Did Rhone in fact reach for his genitals? Did

Rhone in fact whisper in his ear? The photos were critical to that “witness

credibility” and “weight” determination assessment.

       Respectfully, and counter to this Court’s conservative credentials, this

Court has decided to act as a thirteenth juror and decide the fact question

itself, and this is wrong. Brooks, 323 S.W.3d at 911; see also Eaves v. State,

141 S.W.3d 686, 693-94 (Tex. App. -- Texarkana 2004, pet. ref’d) (“The court’s

reasoning does not go to the admissibility of the evidence, but to its

believability, or the weight that jurors might place on such testimony. That is

a call to be made not by the trial court, but by the fact-finder.”); accord

United States v. McClure, 546 F.2d 670, 673 (5th Cir. 1977) (“a jury could not


                                       17
properly convict him absent the opportunity to hear the proffered testimony

bearing upon the theory of defense and weigh its credibility along with the

other evidence in the case.”); Miller v. State, 36 S.W.3d 503, 508 (Tex. Crim.

App. 2001) (“A rational jury could find that this evidence helps to prove that

appellant was under a constant state of duress from Magee when she

delivered the cocaine, that this duress caused her to fear for her safety, and

that her fear was reasonable.”).

      “[T]he Constitution guarantees criminal defendants ‘a meaningful

opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683,

690 (1986). As the Court of Criminal Appeals explained in Miller, exclusions

of evidence under Rules 401 and 402 implicate the Due Process and

Confrontation Clauses of the Sixth and Fourteenth Amendments. See Miller,

36 S.W.3d at 506 (these rights “basic in our system of jurisprudence”). By

dismissing the photographs of Rohne on mere relevance grounds and refusing

retrial, this Court has violated Pridgen’s right to present a complete defense,

in contravention of Holmes v. South Carolina, 547 U.S. 319 (2006), and the

Due Process and Confrontation Clauses of the Sixth and Fourteenth

Amendments. See California v. Trombetta, 467 U.S. 479, 485 (1984);

Washington v. Texas, 388 U.S. 14 (1967) (right to present complete defense

that another committed the crime violated); Chambers v. Mississippi, 410

U.S. 284, 302-303 (1973) (same). “The Constitutional right of confrontation is


                                      18
violated when appropriate cross-examination is limited.” Carroll v. State, 916

S.W.2d 494, 497 (Tex. Crim. App. 1996); accord Evans v. State, 519 S.W.2d

868, 873 (Tex. Crim. App. 1975) (defendants were denied effective cross-

examination when prohibited from cross-examining a state’s witness about

pending charge).


                                 CONCLUSION

      A citizen with no criminal record, former prison official, shot a

transsexual who pulled a knife on him in his own home with plans for

simulated or actual rape. Every rational Texan would say this is fair reason

for self-defense. When jurors see the photos they will acquit Pridgen. This

Court --- which asserts its conservative credentials --- should not stand in the

way of the most important right we have, to have accusations decided by a

jury of peers with full presentation of evidence. The Court should acquit or

remand for trial.


      Respectfully submitted this 20 of January 2015,
                                          /s/ James W. Volberding
                                        By: ____________________________
                                        JAMES W. VOLBERDING
                                        SBN: 00786313

                                         100 E. Ferguson Street
                                         Suite 500
                                         Tyler, Texas 75702
                                         (903) 597-6622
                                         (866) 398-6883 (Fax)
                                         e-mail: jamesvolberding@gmail.com


                                      19
                                        Attorney for Appellant,
                                        Mr. Robert Lynn Pridgen

                       CERTIFICATE OF COMPLIANCE

      I certify that this document is written in 13-point font and contains
4,083 words, as measured from the first sentence of the motion through the
Conclusion.
                                   /s/ James W. Volberding
                                   ____________________________
                                   James W. Volberding

                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this pleading has been
delivered this 20 day of January 2015 to:

     Anderson Co. District Attorney
     Courthouse
     500 North Church Street
     Palestine, TX 75801

by the following means:

     _____        By U.S. Postal Service Certified Mail, R.R.R.
     _____        By First Class U.S. Mail
     _____        By Special Courier _______________________
     _____        By Hand Delivery
     __X__        By Fax before 5 p.m. to (903) 723-7818
     _____        By Fax after 5 p.m.
     _____        By email.               /s/ James W. Volberding
                                        ____________________________
                                        JAMES W. VOLBERDING




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