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APPELLANTS PRO,SE BRIEF
MOTION TO ABATE THE APPEAL
BACK TO THE 354th DISTRICT

COURT TO FILE AN
OUT-OF-TIME MOTION FOR NEW TRIAL

 

APPELLANT MARK EUGEN ENGLE PRO, SE
V.

THE STATE OF TEXAS
TRIAL CAUSE NO. 29110
COURT 354th DISTRICT COURT
HONORABLE JUDGE BEACOM

 

Mark Eugene Engle
TDCJ# 1958430

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The Courzof -
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~’J.AN 2 fs 2075

Jéxarkana,TéXas

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Honorable Judge Beacom

_______ _ Of_
Connally Unit 354th Dlstrlct Court

899 FM 632
Kenedy, Texas 78119
Pro Se

(l)

IDENTITY OF PARTIES

 

APPELLANT: Mark Eugene Engle

HONORABLE: Judge Beacom

(2)

TABLE OF CONTENTS

 

page
Identity of Parties _£_
Index of Authorities ‘__i_
Statewént of The Case - ;i_
Statement of Facts ' 6

ISSue Presented 7

(3)

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23)

INDEX OF AUTHORITIES

 

Ashe V. Swenson 397 U.S. 436/443 (1970)
carter v. State 656 swzd 468,469 (Tex.'crim. APP. 1983)

callis v. State 756 SWZd 826,827 (Tex. APP; Howston
[1St DiSt.] 1988 No Pet.).

~CF. State Ex Rel. Cobb V. Godfrey 739 SWZG 47749

(Tex. crim. APP. 1987).

cooks v; State 240 sw3d 906,907-08 (Tex. crim.`APP.
2007).
Drew v. state 743 swzd 207 (Tex. crim. APP; 1987).

Garcia V. Garza 729 F. Supp. 553/554 (S.D. Tex. 1989)

United States V. Gonzalez 548 F. 26 1185/1191 (5th
Cir. 1987)-

Garcia V. Dial 596 SWZG 524, 528 (Tex. Crim. APP.
[ panel op.] 1980).

De La rosa V. Lyhaug 817 F. 2d 259, 263 (5th Cir.
1987).

Franks V. Delaware 438 U.S. 154, 155-61, 98 S. Ct.
2674 (1978).

Harris V. State 227 Sw3d 83,85 (Tex. Crim. APP. 2007)

Heitman V. State 789 SWZd 607, 610#11, ( Tex. APP?
DallaS 1990 pet ref'd)

Gonzalez 855 SWZG at 694

Hernandez V. State 726 SW26 53, 57 (Tex. Crim. App.
1996).

Koh1er v. Englade 470 F.3d 1104, 1113 (5th cir. 2006)
Myers V. Johnson 76 FBG 1330 (CA. S 1996)

Mullins v. State 37 Tex. 337, 339 (1872,73)

Dixon, 893 SWZG at 288

Ex-Parte MatheS 830 SW2d 596, 598 (Tek. Crim. App.
1992) ‘

Rezac V. State 782.SW26 869, 870 (Tex. Crim. App.

Reynolds V. State 4 (SW 3d) 13, 23 (Tex. Crim. App.
1999) -

Strickland V. WaShington 466 U.S. 668, 104 S. Ct.
2052 80 L.Ed. 26 674 (1984)

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.4)
(4)

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24) Sambrano V. State 754 SW2d 768 (Tex. App. San
Antonio 1988, no pet, )

25) State v. Nash 817 SW 26 837, 840 (Tex. App.
Amarillo 1991 pet. ref'd)

26) Ladner V. State 780 SW 2d 247, 258 (Tex. Crim.
App. 1989)

27) Adams v. U.S. 287 de 701,705 (5th Cir. 1961)

28) Rios v. State 901 SW 28 704, 706 (Te§# App. San
Antonio 1995/no pet.)

29) Torres V. State 804 SW 26 918 (Tex. App. El-Paso
1990 no pet,)

30) State V. Evans 843 SW 26 576 (Tex. Crim. App. 1992)

STATUTES:

1) Tex. R. APP. PROC. 31 (a)

2) Tex. R, APP. P.2 (a) 80 (c)
3) Tex. R. APP. P.31 (e) (2) 32
4) Tex. R. APP. P.BO_(b)

5) Te . APP. P. (3) 74,90,(A)
6) Tej. R. APP. PROC. 21.4

CONST.
1) Tex. ConSt. Art. V. Sub. Sec. (b)

Gov'T coDE: _
1) 22.201, 22.205 (vernon 1988)

Tex. Code. Crim. Proc. 4.01, 4.03

11

10

10

10

STATEMENT OF THE CASE

 

On December 7th 2012 at 3:50 pm, I was arrested for failure to sig-
nal, intent to turn. While in jail I was held until they got a com-
plaint and arrest warrant for the specific offense of sexual assault.
No consent to search ée-seasch was given. Nothing in view or in plain
view was seen at the time of arrest. The police removed a locked safe
from the backseat of my automobile. Police broke into the safe and
removed 4.1 grams of methanphetamines. Complaint of probable cause
was written at 6:00 pm . They then got a search warrant as stated

in the affidavit for search warrant which was sealed when they got
the search warrant that has no specific offense, no name of accused,
no vehicle to be searched, no make or model of vehicle to be searched
only locked boxes and safe. It has a signature of a district Judge
and issue time of 6:28 pm. On Feb. 4th 2013 an examining trial was
held. The Judge found no probable cause in the complaint, arrest
warrant, and search warrant for the specific offense of sexual as-
sault. I was held over on the drugs taken as.a result of the search
warrant for the specific offense of sexual assault. In Sept. 2014

a hearing was held on a motion to suppress evidence, (drugs) based
on the search warrant for the sexual assault that has been dismis-
sed. No probable cause, motion denied. Counsel then suggests plead-
ing to a jury. l retracted my not guilty plea to a plea of guilty.

I was given a right to appeal on Oct. lst 2014. Jurv then hands down
a life sentence- From the time I was given my sentence up to the
point was appellant counsel appointed was a total of 20 days. This
was a crucial stage to file a motion for new trial that I was with-
out counsel. I recieved ineffective assistance of counsel who ab-
bandond my only defense, which was the doctrine of collateral es-
toppal. Had she raised this defense the probability of the out

come would have been different. The state could not have used the
drugs in the sexual assault complaint that was dismissed. I also
_received ineffective assistance of counsel who failed to invest-
igate the search warrant had she the probability of the outcome

would have been different she would have discovered that the search

warrant had false statements or misleading and the judge would have
dismissed this case as we11.

(5)

STATEMENT OF FACTS

 

If this Honorable Court would look at the clerks record and the
court reporter records, it will show that appellants was without
counsel for (20 days) which is a critical stage to file a motion
for New Trial and that he received ineffective assistance of coun-
sel on two issues. (one) Trial counsel abanddond his only defense
in the drug case which was the doctrine of collateral estoppel.
(two) Trial counsel failed to investigate the search warrant had
she, she would have discovered that it was misleading and false

statements.

(6)

ISSUE PRESENTED
Did the trial court deny appellant counsel in
a critical stage of twenty days to file a motion

for a new trial._

 

 

FACTS WITH AUTHORITIES

Appellant files this motion brief to Abate and remand
the case to the trial court so he may file an out-of-
time motion for a New Trial based on the State denied
him counsel at a critical stage of (twenty days) to
file a mbtion for New Trial and he received ineffetive

assistance of counsel in two issues:

 

Appellant brings this brief that he has a right to submit
a pro,se Brief see. Case: Myers v. Johnson 76 F3d 1330 (
CA. 5 1996)

 

STANDARD

The time for filing a motion for a New Trial has expired.

Texas Rules Appellant procedure 31 (a). In an appropriate

case for good cause shown this honorable court may suspend
requirements and provisions of any rule in a particular case on
application of a party or on this court own motion and may order
proceedings in accordance with your direction. TEX. R. APP. P.2
(b), 80 (c). This includes Abating an appeal for an out-of-time
motion for a New Trial. Schaired v. State, 786 s.w. 2d 497, 498
(Tex. APP.- Houston [1st Dist.] 1990, no pet.), Callis v; state,
756 S.W. 2d 826, 827 (Tex. App. - Houston [1st Dist.] 1988, no pet),
CF. State ex rel. Cobb v. Godfrey, 739 S.W. 2d 47, 49 (Tex. Crim.
App. 1987). (Trial court had no jurisdiction to rule on motion for
New Trial after it had been overruled by operation of Law, and
court of Criminal'Appeals would not utilize rule 2(b) in absence

of showing of good cause).

(7)

In Torres v. State, 804 s.w. 2d 918 (Tex. App. EL PASO l990,no
Pet) (Opinion of June 6, 1990) The appellate court was asked to
Abate the appel and return the case to the Trial Court for a hear-
ing on the question of ineffective of assistance of counsel. In
the opinion on motion for rehearing/ the court held that such a pro-
cedure would not violate that portion of appellate rule 2 (b) pro-
hibiting the suspension of code of criminal procedure provisions,
because time limits for motions for New Trial are no longer cover-
ed by statute but by court rules. Id. at 920.

This courts jurisdiction is constitutionally and legislatively
created. Tex. Const. Art. v. Subsection 6, Tex. Gov' t code sub-
section 22.201, 22.205 (vernon 1988), Tex.Code Crim. Proc. Ann. Arts.
4. 01, 4. 03 (vernon supp. 1991).

A party invokes this court' s appellate jurisdiction by timely fil-
ing a notice of appeal. Shute v. State, 744 SW2d 96, 97 (Tex. Crim.
App. 1988). Once a court acquires jurisdiction of a case. "That jur-
isdiction embraces everything in the case and every question aris-
ing which can be determined in the case. Garcia V. Dial, 596 SW2d
524, 528 (Te§. Crim. App. [_Panel Op. ] 1980). Lack of jurisdiction
and the improper exercise di jurisdiction are vitally different con-
cepts Id. at 528 N. 5 " Once jurisdiction of an appellat court is
invoked, exercise of its reviewing functions is limited only by its
own discretion or a valid restrictive statute." Carter V. State, 656
SW 2d 468, 469 ETex. Crim. App. 1983), see also Rezac V. State,,782
SW 2d 869, 870 (Tex. Crim. App. 1990)_‘l The determination of a motion
for New Trial is within the pr6vince of the Trial Court. Tex. R. App.
P. 30. 31. Were this court to allow appellate to file a motlon for
New Trial in this court, and were to grant or deny to motion them-
selves, then this court would be exceeding the limits of their auth-
ority as suggested by El Paso court of appeals in Torres V. State
However this is not the case when all this court will do is abate
the appeal so that a motion for New Trial may be presented to the
judicial body authorized to act upon it, that is the trial court
would not disturb the judgement and this court would not be ex-
ceeding there jurisdiction. It would be the trial court to decide
the merits of a motion for New Trial is warranted under appellate
rule 30 (b) the court Shall grant the motion and only then would
the judgement be effected Tex. R. App. P.3l(e) (2), 32. If the Trial
Court finds otherwise, the court shall deny the motion or the motion
shall be considered overruled by operation of law. And that action
would be a proper subject for a point of error before this court
uner the appropriate standard of appellate review such case. Tex.
App. P. 31 (o) (2), <3) 74, 90(6). This court Should be mindfdii'of
Drew V. State, 743 S. W. 2d 207 (Tex. Crim. App. 1987), in which the
court held that the trial court did not err in denying a late filed
motion for New Trial because the trial court did not have jurisdic-
tion to act on a late motion for New Trial. Unlike Drew where the
Trial Court did not have jurisdiction under the then existing stat-
ute. (l) This honorable court have jurisdiction over the case, this
Honorable Court have the authority to suspend Rule 31 (a) and remand
this case to the Trial Court for an out-of-time motion for New Trial.
Tex. R. App. P.2 (b) petitioner, appellate turn to the issue of the
issue of the second exercise of this Honorable Court discretion and

(8)

 

 

 

 

appellant issue given was, did the Trial Court deny appellant counsel
in a critical stage of twenty days to file a motion for New Trial.

UNDER TRAP 21.4

see. Cooks V. State, 240 S.W. 3d 906, 907-08 (Tex.Crim. App. 2007)

"A defendant has thirty days to file a motion for New Trial after
`the date that the Trial Court imposes or suspends sentence in open
court. This case presents the question of whether this thirty day
period of time is a critical stage during which a defendant is con-
Stitutionally entitled to effective assistance of counsel in filing

a motion for New Trial. We decide that this period is a critical
stage of a criminal proceeding, but that the deprivation of effective
assistance of counsel is subject to analysis for prejudice or harm.

Appellant aledge that he received ineffective assistance of counsel
from trial counsel on two issues. They are trial counsel abandond his
only defense in the drug conviction which was the doctrine of col-
lateral estoppel. Had counsel aledge this defense the reasonable pro-
bability outcome would have been allowed to use the same evidence in
the sexual assult complaint that was dismissed because the judge did
not find probable cause to indict him. The State used the evidence
of the drugs to charge him from the complaint that was dismissed sex-
ual assault, he would not have to plea guilty to the charges, they
would be dropped.

To prove ineffective assistance of counsel, a defendant must show
by a preponderance of the evidence that (l) his counsel's represen$
tation was deficient, and (2) the deficient performance was so serious
that it prejudiced his defense. Strickland V. Washington, 466 U.S.
668, 104 S.Ct. 20s2, 80 L.Ed 2d 674 (1984), Hernandez V. State, 726
S.W. 2d s3, s7 (Tex. Crim. App. 19961. In the statement of the case
appellant aledge facts that on December 7th 2012 at 3:50 see clerks
record that he was arrested for failure to signal intent to turn
while in jail he was given a complaint and arrest warrant for sex-
ual assault. No consent to search was given nothing on view or in
plain view at the time of the arrest the police removed a locked
safe from the back seat of his automobile. Police broke into the
safe and removed 4.1 grams of methanphetamine. Complaint on Feb.
4th 2013 an examining trial was had the judge found no probable
cause in the complaint, arrest warrant, and search warrant for
the the specific offense of sexual assault. He was heldover on the
drugs taken as a result of the search warrant for the Specific
offense sexual assault on Sept. 2014 a hearing on motion to suppress
evidence (drugs) is had based on the search warrant for the sexual
assault that has been dismissed no probable cause, motion denied.
Counsel is ineffective for not useing collateral estoppal defense.
Collateral Estoppel applies in both criminal and civil proceedings
seesee Ashe V. Swenson 397 U.S. 436, 443 (1970), see generally re-
statement (second) Of judgements subsection 27 (" Issue Preclusion"O
(defending general rule of issue preclusion applicable in both civil
and criminal proceedings), cf. 18 c. Wright, A Miller and E. Cooper¢
Federal Practice.and Procedure subsection 4421, P. 192 (1981) ("Issue
preclusion attaches only to determinations that were necessary to
support the judgement entered in the first action").

 

 

 

 

(9)

Under this constitutionally based doctrine of collateral estoppel,
"When an issue of ultimate fact has once been determined by a valid
and final judgement, that issue cannot again be litigated between
the same parties in any future lawsuit. see. Ashe, 397 U.S. at 443,
see. Also State V. Lee, is (S.W. 3d) 921, 929 (Tex. Crim. App. 2000)
( concurring op.§ (" if a verdict at trial necessarily includes the
determination of an ultimate fact issue in the defendants favor, and
if proof of that issue is necessary for the prosecution to convict
the defendant in a subsequent proceeding then the prosecution is es-
topped from relitigating that issue, and the defendant is aquitted
of that offense"), Reynolds V. State, 4 (S.W. 3d) 13, 23 (Tex. Crim.
App. 1999) (defending and discussing constitutional doctrine of col-
lateral estoppel), Ex Parte Mathes, 830 (S.W. ZdY 596, 598 (Tex.
Crim. App. 1992).

That is once a jury determines a discrete fact in favor of a crim-
inal defendant, the state cannot contest the jury's findings in a
subsequent proceeding. In applying the doctrine of collateral estop-
pel, courts must first determine whether the jury determined a specific
fact, and if so how broad in terms of time, space and content wasthe
scope of its finding. Before collateral estoppel will apply to bar
relitigation of a discrete fact, that fact must necessarily have
been decided in favor of the defendant in the first trial. see. In
Ashe V. Swenson, for example, several armed and masked men broke in-
to a home and robbed six men who were playing poker 397 U.S. at 437
thru 39. The defendant was aquitted at his first trial for the rob-
bery of one of the victims, but was subsequently convicted in a se-
cond trial for the robbery of another poker player Id. At both trials
the evidence that an armed robbery had occured was "unassailable,"
Id. at 438, and the supreme court determined that the " single ra-
tionally conceivable issue in dispute before the jury was whether
the [defendant] had been one of the robbers. " Id. at 445. In re-
versing the defendants conviction, the court held that the state
was barred by the double jeopardy clause from litigating the issue
of Identity at the second trial after a prior judgement aquitting
the defendant based on that same issue. Id at 445.

The mere possibility that a fact may have been determined in a
former trial is insufficient to bar relitigation of that same fact
in a second trial see. De LA Rosa V. Lyhaugh, 817 F. 2d 2597 263
(5th Cir. 1987), United States V. Gonzalez, 548 F. 2d 1185, 1191
(5th Cir. 1977), Garcia V. Garza, 729 F. Supp. 553, 554 (S.D. Tex.
1989), State V. Nash, 817 S;W. 2d 837/ 840 (Tex. App. Amarillo 1991
pet. Ref'd). In each case courts must review the entire trial record,
as well as the pleadings, the charge, and the arguements of the At-
tornys, to determine " with realism and rationality" precisely which
facts the jury necessarily decided and whether the scope of its find-
ings regarding specific historical facts bars relitigation of those
same facts in a second criminal trial. see Ladner V. state, 780 S.W.
2d 247, 258 (Tex. Crim. App. 1989) ( " when a fact is not necessar-
ily determined in a former trial the possibility that it may have
been does not prevent re-examination of that issue.") (Quoting Adams
v. United states, 287 F.2d 701, 705 (5th cir. 1961).

Petitioner appellant believes that this defense should have been
applied if it was theres no-way the state could have used the drugs

 

 

 

 

(10)

that was taken in the original complaint that was later dismissed.
Issue number two, on ineffective assistance of counsel: I received

ineffective assistance of counsel who failed to investigate the search

warrant had she the probability of the outcome would have been dif-

ferent she would have discovered that the search warrant had false

statements or misleading and the judge would have dismissed this

case as well.

FACTS TO THIS GROUND

In the statement of the case and the clerk records on December 7th
2012 at 3:50 p.m. I was arrested for failure to signal intent to turn.
No consent to search was given nothing on view or in plain view. At
the time of the arrest the police removed a locked safe from the back-
seat of my automobile. The police broke into the safe and removed 4.1
grams of methanphetamines. Complaint of probable cause for the drugs
carries a time of 6;00 p.m.. They then got a search warrant which
was sealed when they got the search warrant that has no specific of-
fense, no name of the accused, no address to be searched, no make
or model of vehicle to be searched, only locked boxes and safe.

Appellate aledges that had counsel investigate this/ there is a
reasonable probability that the outcome would have been different
the state and the judge would have dismissed the charge on mis-
leading information.

To prove ineffective assistance of counsel a defendant must.show
by a preponderance of the evidence that (l) His counsel's represen-
tation was deficient and (2) The deficient performance was so seri-
ous that it prejudiced his defense. Strickland V. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), Hernandez V. State
726 S.W. 2d 53, 57 (TEx. Crim. App. 1996). If this Honorable court
see the clerks record look at the search warrant. Its based on a_
affirmative false statements or misleading omissions affecting the
magistrates determination of cause.

A warrant may not properly issue when the affidavit on which it
is based has either affirmative false statements or misleading omis-
sions affecting the magistrates determination of cause see, Franks
V. Delaware, 438 U.S. 154, 155-61, 98 S.Ct. 2674 (1978), Harris V.
State, 227 S.W.3d 83,85 (Tex. Crim. App. 2007), State V. Verde, 432
S.W.3d 475, 483-84 (Tex. App. Texarkana 2014, pet ref'd), Heitman
V. State, 789`S.W. 2d 607, 610-ll Tex. App-Dallas 1990 pet ref'dl,
Kohler V. Englade 470 F3d 1104, 1113 (5th Cir. 2006), also, RiOS
V. State 901 S.W. 2d 704,706 (Tex. App- San Antonio 1995, no pet.)

Although none of these errors are listed in rule 21 of the Texas
rules of appellate procedure as mandatory grounds for the granting
of a New Trial any of these alleged errors may be permissible grounds
for a New Trial. see. Tex. R. App. P. 21, State V. Evans, 843 S.W.
2d 576 (Tex. Crim. App. 1992).

For more than 120 years trial courts have had authority to grant
a motion for New Trial in the interest of justice based on grounds
that are not, specifically enumerated in the procedural rules. Gon-
zalez, 855 S.W. 2d at 694) citing Mullins V. State, 37 Tex. 337, 339-
(1872-73)/ Dixon, 893 S.W. 2d at 288.

This court should look at the nature of the claim and determine
whether the interest of justice are best served by allowing an out-
of-timeo motion for New Trial. see Sambrano V. State 754 S.W. 2d 768
(TEx. App. San Antonio 1988, no pet.j

 

 

 

 

 

 

 

(11)

Appellant was without counsel (20) days, a critical stage to file
a motion for a New Trial.

(12)

UNSWORN DECLARATION

I swear under penalty of perjury thet the statements contained in
this motion are to the best of my knowledge based on the informa-
tion I have received and know, are true and correct.

Executed on this day

of /~,ZO ~ 2015

Sincerely Submitted

 

(13)

PRAYER

Pray that the appeals court finds reason for cause to vacate the
conviction or remand the defendant back to the trial court for
an out-of-time motion for a New Trial so that defendant can pre-

sent an affirmative defense of collateral estoppel at a full Franks
Hearing.

Sincerely Submitted

 

'(14)

