                                                                                                         RECEIVED IN
•DO
                                                                                                 COURT OF CRIMINAL APPEALS
                             ITED       STATE    SUPREME, COURT           OF    TEXAS
                                              AUSTIN DIVISION                                            APR 01 2015

 LEON       HARRISON,
                                             vi m                         : CASE: No . ! 4-1 3-M$&?faJBfo, Cl@rk
            Appellant                                                     '    PDR No.PD-0392-14,
                                                                               TC:#635921; CT : #230TH _.. _^
                                                                                                                FILED IN
 THE STATE OF TEXAS, \ MjWVr^                                                                          COURT OF CRIMINAL APPEAL?
                     APPELLEE.r*                        §
                                                                                                             APR 01 2015
             APPELANT'S      REQUEST          COURT    EN    BANC   TO    CONSIDER COURT          OF
        APPEALS      DENIAL       OF    APPELLANT'S          MOTION      UNDER    RULE. 60(b)(5)
                                                                                                          Abe) Acosta, Clerk

      Appellant bring this                  action    to request         the    Court to    En    Banc on

 considering         the    denial of 14th Court of Appeals                        and the       Texas    Cou
 rt of Criminal's denial of Appellant prose motion under Rule 60(b)
 (5),       and will show the Court the following:


                                             Statement       Of   Ease


      The   nature    of    the    Motion       is    from    the 14th         Court of    Appeals,       affirming
 the trial court's unfavorable findings under                                   article 64.U4 of           the Texas
 Code j.of Criminal Procedure, which was made on September 24,2012 (CR at
 1 03)., Appellant timely filed his pro se notice of appeal,                                       pursuant to
 art.64.05, on Uetooer 16,2012, (CR at 106).
      Appeant was         appointed          counsel    in the       appeal.      On    October 9,2013,          appeal

 counsel filed            Motion       To    Abate    Appeal,       pending      the    Court of Criminal             App
 eals out in UHITFIEELD v. STATE ,No .01-1 2-00081-CR , 2013 uJii 2456720 (Tex.
 App.-Houston [1st Dist.]                     Dune 6 ,201 3 ,pet. granted .(. In that case,                     the
 court of appeals            dismissed          whitefiald's          appeal      of the    trial court's             un
 favorable findings for want of jurisdiction,                                   citing STATE v.          K0UL0WAY,
 360 S.uJ.3d 480 (Tex.Crim.App.2012).                             The court of appeals summarized
 the    holding      in    Holloway,          as follows:

       [E]ecause a writ of habeas corpus is only (sic) way to obtain
       postconviction relief based on DNA testing, any opinion of a
       court of appeals reviewing a trial court's findings under arti
       cle 64.04 would bs advisory. Us lack jurisdiction to render ad
       visory opinions.

      Appellant's case            is    in    precisely the same posture as                  Whitfield's was
 on    appeal and since the Court of                        Appeals affirm the 1st Court's major
 ity opinion, the 14th Court of Appeal was obligated to dismiss the app
 eal irrespective of any substantive issue he may have.
  The 14th Court of Appeals refused to address appeal counsel's motion
to abate appeal and Appellant's pro se motion to correct appeals record
under Rule 34.6(f) and (d),T.R .A. P., before the appointment of counsel,
and    appeal   counsel   motion   to withdraw from   case.

  On February 27,2014 the Court of Appeals granted appeal counsel's mot
ion to withdraw as attorney of record in the above cause number, Which
inturn denied Appellant's pro se brief in this cause number.
The Court of Criminal Appeals refused the Appellant's PDR thereafter.

      On 10/23/14, Appellant filed his Motion of Leave to File Under Rule
60(b)(5),Fed.R .Civ.Proc., and court denied motion as being time barred
to invoke its jurisdiction. On 1/29/15, Appellant filed under Rule 60
(b)(5), to the Court of Criminal Appeal. The Court of Criminal Appeals
addressed the issue by informing Appeals the Court no-longer had its
appellate record. On 1/30/15,         Appellant filed a motion to the Court of
appeals to reconsider court' s denial of appellant's motion under Rule
60(b)(5) under Court En Banc. The court never addressed motion. Now
Appellant motion this Court to address his motion under Rule 60(b)(5).

                  REASON FOR MOTION UNDER RULE 60(b)(5)


  Under Rule 60(c), timely and effect of the motion. Appellant will sh
ow this Court he is well inwhich the one year time limit of the court's
judgment in both the court of appeals and the court cf criminal appeals.
  Rule 60(c) Federal Rules of Civil Procedure states:

  A motion under Rule 60(b) must be made within a reasonable time and
for reasons (1),(2), and (3) no more then a year after the entry of the
judgment or order or the date of the proceeding. (2) Effect on Finlity.,
The motion does not affect the judgment's finality er suspend it's oper
ation, (d) other powers to grant relief, this rule does not limit a co
urt's power to: (1) entertain an in-dependent action to relieve a party
from a judgment, drder , or proceeding, (2) Grant relief under 23 U.S.C.
§^1655. ta a defendant who was not personally notified of the act an:
(3) Set_aside_a_judgment_for_fraud on the court, (e) bills aad writs s:dj
abolished. The following are abolished: Bills of review, bills in the
nature of bills of review, end writs of coram nobis, coram vcbis,and
(audita querela) [law latin "the complaint having been head"] a writ
available to a judgment debtor who seeks a rehearing cf a matter         on
grounds of newly discovered evidence or newly existing legal defenses.
The writ of Audits Querela (=quarrel having been heard).. Introduced
during the time of Edward III,     was   available to reopen a judgment in
certain circumstances.   It was   issued as    a remedy to defendants where
on important matter concering his        case arised since judgment. It issue
was based on quitable,   rather then common law pincipies.          L.B.Curzon,
English legal history 103 (2d Ed.1979)

  Audita querela is distinguished from coram nobis in that coram nobis
attacks the judgment itself, whereas Audita querela may be directed
against the enforcement,   or further enforcement of a judgment which wh
en redered was just and unimpechable. TA CCS. Audita Querela § at
901   (1980).

  Appellant case is a trial court's judgment not to find DNA results
not favorable to Appellant's actual innocence claim inwhich he was
excluded from the profile be DPS-crime lab,        under Art.64.03-04 and 05
of Tex.Code.Crim.Proc. , which Appellant appealed to the 14th Court of
Appeals. Appellant wa3 appointed appellate counsel which filed a motion
to abate appeal pending the out-come of the Court of Criminal Appeals
decision in, WHITFIELD v. STATE,'40.9 S.U.3d 11 (20013);           Reversed by
2014 Tex.Erim.App.LEXIS 683; Reversed by 430 S.W.3d 405 (July 22,2014
CCA.)- 2014 Tex.App.LEXIS 7902.

  Appellant motions to the court of appeals and court of criminal appeals
was timely inwhich Rule 60(c) states said motion must be made.

                                  PRAYER


      Appellant have met the required showing of Rule 60(b)(5) & (c), and
pray that this Court will En Banc to consider the court of appeals den
ial cf Appellant's Motion of Leave Of Court Under Rule 60(b)(5) and in
all things grant this motion.     Appellant reserved the right to appeal
any denial of this motion to the U.S.        District Court Of The Southern
District   Of   Texa3.

                                                       Respectfully submitted,
                                                       ^?J^2- ^-^^U^C
                                                      :.LE0N HARRISON #'.815719
                                                       P0LUNSKY      UNIT
                                                       3e72   FM    350   So.
                                                       LIVINGSTON,        TX    77351
                          CERTIFICATE   OF   SERVICE

  I do   hereby certify that a true and correct copy of the      above aind
foregoing pleading was requested by Appellant to the Clerk of the
Court to forward a copy to the 14th Cdurt of Appeals and all parties.



                                                        Respectfully submitted,


                                                       LEON   HARRISON   #815719
                                                       APPELLANT-PRO     SE




                                   4.
                                                                                         ri£C©VEL>
DATE: 3/25/1 5                       LEON HARRISON #815719                           'N SUPREME CTOKr
                                            POLUNEKY UNIT                                octi^V^ '
                                        3872       FM   350   So.
                                     LIVINGSTON, TX 77351                              APR 01 ?QJ5
                                                                                 BLMfe haw iHur-twfc, Uterh
SUPREME COURT OF TEXAS                                                          ^
CHIEF JUSTICE WALLACE JEFFERSON                                       ;         "*
PLACE 1,       PO    BOX 12248
AUSTlCNii     TEXAS       7B711-224B



RE:    LEON HARRISON \l.            STATE,       No .1 4-1 3-00239-CR;     TCNo. 635921;     COURT
       #    230TH    DISTRICT       COURT    OF    HARRIS     TEXAS,



Dear       Justice    Jefferson:


  I would       like to file this motion                  for   the    court under   Rule   60(b)(5)
and bring to          the       docket to    be    ruled upon.


  Please have the Clerk of Court file a copy with the 14th Court of
Appeal       sand ail       parties    a file       date.

  Thank you for             your time       in    this matter.




Respectfully          submitted,

-^d^.^i^<n^Yi.,
Appellant,          pro    se




CC:
