167/3672 -2§

ROY L. SMITHWICK JR.
TDCJ#622814 McConnell
3001 S. Emily Dr.
Beeville, Tx. 78102

Court of Criminal Appeals
Attn: Clerk

Capitol Station

PtO. Box 12308

Austin, Txf 787ll

RE: Objection Filing Case# 29,892-21

Dear,Clerk/

Enclosed please find-a "Objection " to the Trial Courts
denial to Address the recent Apolication for Habeas Corpus Under
Art. ll.O73 which a new legal baises for my filing.

Will you please file;~ my§ Objection for the Appeals court to

review with my Application.

Thank you for your time and attention.

ROY LOUIS SMITHWICK JR.
/W>

  

§

RECE|VED lN
couRT oF chMlNAL APPEALS

MAR 19 2015

Ab€l ACOS’ia, Cle¥k

 

 

IN THE
COURT Of CRIMINAL APPEALS

of TExAs
§ ` .
Ex PARTE, _ § CCA# 29,392-21
RoY~LoUIS sMITHWICK JR. §
APPLICANT § 49TH DISTRICT couRT
-» 1 § TRIAL #1992CRA00041-01(T)

§

oBJEcTION

To the .Justices of the Court of Criminal Appeals`comes
now ROY§ LOUIS SMITHWTCK JR., Pro~Se, Applicant in the above
styled and numberd_ cause to file this OBJECTION to the Trial
Courts denial to address a Eirst Application for Habeas Corpus
Under Art. 11.073 which dis New Law Previously unavailablefor
a subsequent Application.

In support please find the following:

I.
ABUSE CF WRIT CITING SHOULD BE SET ASIDE

The Court of Criminal Appeals ordered the Clerk not to
acceptll any future filing from Smithwick Under Art, ll.07 unless
it. appeared that Section 4(a) was overcome for a succesive

This application is being presented for the first time
Under CCP Art.- 11.073. This New Legal Bais was previously
unavailable for the claims consideration in a subseqent Application.
Therefore the requirements for Sec 4 (a)(l) "Legal bais" previously
being unavailable is met for a review of this Application, _

,’-=§-~`

Further, this is Smithwick's first Application citing a

"Miscariage of Justice" claim on the related Scientific testimony> _

l.

The Records.available to Smithwick show the Trial Prosecutor

had Pre-Trial Knowledge of the offered trial testimony being
false and Unrel§able Scientifically yet still used it to prove
his case beyond a reasonable Doubt;

Prosecutor:"it is going to boil down to scientific evidence ...

that will prove beyond all doubt this man killed..."(Trial RR. Vol.I

P.llS-ll9 L.23-25 & 1>2)

Also before Smithwick alleged this :claim he filed a
Administrative complaint with the District Attorney's Office
to investigate the Criminal Misconduct of the Trial Prosecutor.
No response or investigation was made to the claims.

Smithwick 'then' requested ithe' Scientific ‘Records Used to
prepare for Trial that would have addressed the claims;

The DA's Office refused to make available the-Documents;

Despite the recent events of enacting the Michael Morton

Act that resulted from a Prosecutor withholding Reports and_

the Duties Outlined in CCP § 2;01 that require the release of evi-
dence that may be exculpratory or impeaching the DA's Office
refused to make available any record that may prove Prosecutoral
criminal misconduct.

Smithwick therefore has strong reasons and information avail-
able to make the claim of a "MISCARIAGE OF JUSTICE" due to the

trial prosecutor actions before, during and after Trial.

WhereforetheAbuse of writ citing should be set aside and

the foregoing case be filed and addressed.

2.

c_

II.
N`EW LAW (*l'l'.O"/3) `IN REL`ATION TO TH'IS C:ASE

On 9/1/2013 Legislation enacted Criminal Codes and Procedure
Art. ll.O73 that applies to scientific evidence that was relied
upon by the State and is now discredited.

In Ex Parte Neal Hampton Robbins No.WR-73-484-02 the Court
of Criminal Appeals Granted Relief on errors Re-Submitted Under
the New Law CCP.' 11.073. Judge Cochran's concurring Opinion,
Joined by Judges Price and Johnson, noted that the State's Arguee
ment in Robbins was: n

"that the plian language and legislative history of Art. § ll.073

'demonstrates' a legislative intent to provide a remedy when

there is a generally accepted Scientific advance or break throught

in a discipline of forensic science,' rather then a change in the

State's scientific expert's opinion." ~

At the time of Smithwick's trial. the Generally accepted
scientific advance of DNA testing was available at least two
years prior to Smithwick's Trial.

Yet, the Trial Prosecutor knowingly and intentionally relied
upon Unreliable and Obsolete (Old Science) "Enzyme Testing to
show Smithwick committed the Offense.'

The scientifically advanced testing was not utilized inten-
tionally which deprived` Smithwick's Constitutional right to
a fair trial .

Judge Cochran also traced the history of CP. Art- § 11.073,
noting that: `

"by 2009, The Texas Legislature, at the urging of the Ibnnocence

Project of Texas, begain reacting to the problems of prior convic-

tions based on bad Scientific evidence."

4 3 .

d

Judge Cocharn stated in finding relief appropriate in the
Robbins case:

“regardless of whether a conviction is based on an unreliable
field of science or unreliable scientific testimony, the '
result is the same: an unreliable verdict that can not
stand the test of time. It is built upon the shifiting sands
of "Junk" science or a "Junk" scientist, and it is the
purpose of Art. § ll.O73 to provide a statutory mechanism
for relief and- a retrial based upon"good’ science and
'good' scientific testimony" `

Judge Johnson’s concurring opinion noted the following:

"the various positions on statutory interpretation seem to
agree that the legislative history indicates that the intent
of this statute is to provide relief to those who were
convicted on science or scientific methodology that is now
known to be unsound.“

"whether debunked' or refined' for increased accuracy,changes
in in scientific knowledge in general and therefor changes in
scientific testimony by_individuals¢ must'be acknowledge and
addressed."
Smithwick has provided a Affidavit and a listing of what
the Ballist report would have contained. This shows that the

trial prosecutor EXpert witness falsified his testimony (debunked)

but also shows that the Trial Prosecutor would have known the Trial

testimony was going to be false.
This further shows that Smithwick has met the requirements

of Art. ll.O73. (Testimony Discredited)

In the Recorders records the Trial Prosecutors own words
state he relied on scientific testimony to prove his case beyond
a reasonable doubt. This also demonstratate the States relied upon

expert science testimony metting the requirements of ll.O73.

Q/-T.-

CONCLUSION

Smithwic has shown that rhe has met the requirements for
relief under Art. ll.073 by discrediting the Scientific testimony
and has shown the Trial Prosecutor's own words prove he relied
upon the scientific testimony for a conviction.

Further, It is also .shown that the Trial Prosecutor in
all likelyhood knew the Scientific testimony was going to be
false and unreliable. A "Miscariage of JusticeF becomes obvious
and the intentional introduction of false and unreliable scientific

testimony can not be considerd a harmless intent.

PRAYER
Wherefore Smithwick Prays that the Court of Criminal Appeals
find that Smithwick is entitled to Habeas Corpus Review Under
Art. ll.073 and remand the case back to the Trial Court to hold
a Evidentiary Hearing to establish a Fact Finding and Conclusions
of law based on the records and a Developed Record addressing

the merits.

Res ec?liz subEitted,,;;

' RO;E. SMITHWICK JR.
TDCJ#622814 McConnell
3001 S. Emily Dr.

Beeville, Tx. 78102

DECLARATION 3"/5`/5

l hereby declare under the Penality of Perjury that every "
statement in the forgoing "Objection" is true and Correct. As to
to statement based on the information l have available to me I also

believ them to be true and correct.
RoY LoUIs sM THWI K agr
WM§ /

 

