                                                                                May 21, 2015
                                    NO.03-13-00066-CR




MAURICE       SAMUEL    ARRINGTON              §      IN THE COURT OF APPEALS

V.                                             §      THIRD DISTRICT OF TEXAS

THE    STATE    OF   TEXAS                     §      AUSTIN, TEXAS



                        APPELLANT'S MOTION          FOR   REHEARING




       Appellant Maurice samuel Arrington moves this Court for a

rehearing of its opinion and judgment issued on March 5, 2015.



                                    ISSUES   PRESENTED

        I.      Ineffective    assistance of          counsel

        II.     Abuse of discretion by the trial              court

        III. "NOTE" Appellant has other issues presented in the

original       appeal   brief, not to be neglected but due to deadline

and appellant's loss of original brief by US Marshals during a

Federal       bench warrant; Appellant will file what is available and

pray that this Court reviews the brief in full.



                              REASON     FOR      REHEARING

       Although this Court affirmed the trial court's conviction,

Appellant believes this court erred. According to case law, Texas

Law, United States law, and the Constitution; Appellant's rights

have   been    violated.




                                                                      / RECEIVED\
                                             -1
                                                                         MAY 2 12015
                                                                      THIRD COURT OF APPEALS,
                                                                      V JEFFREY D.KYLE /
       Opinion -    Issue Number one



       The reasoning of this Court is not understood by the

Appellant as being determinative on the grounds of Federal, State

and case law, including case law from this Court's own Justices,

all of which say differently.

       In Serrano v. State. 123 S.W. 3d 53, the Court of Appeals of

Texas, Austin, reversed and remanded this case because the

affidavit contained      insufficient evidence.

       Serrano is very    similar to Appellant's argument as far as

the evidence aspect of the case. Granted, there was no motion

ever filed by Appellant's court appointed attorney to suppress

the evidence due to      lack of evidence.       See:   Lowerv v.   State,   843

S.W.2d   136.

       In Appellant's case alike Serrano, the affidavit alleges,

'There was a reliable informer.' The affiant relied heavily upon

a unidentified confidential       informant.       A mere conclusory

statement gives the magistrate virtually no basis at all for

making a judgment regarding probable cause. [I]ts actions cannot
be   a mere   ratification   of the   bare    conclusions   of   others.   Gates.

462 U.S. at 239, 103 S.Ct.       2317

       What appellant is arguing is; there was no substantial                basis

for crediting the informant's hearsay statement. Officers failed

to corroborate the informant's tip except to confirm appellee's

parked vehicle. The affidavit does not state the statement was

against penal      interest, nor repeated by other informants. There

was no accurate prediction of future behavior. This tip was


                                        -2-
alleged to be a first-hand observation,                  but   it contained no

particular level        of detail         regarding appellant's premises or his

criminal   activity. See: State v. Duarte. 389 S.W. 3d 399

     Appellant's counsel             should have immediately attacked the

sufficiency of the affidavit by filing a motion to suppress the

evidence   due    to   the    lack   of   evidence    thereof.   Even   if   the   trial

court did not agree it would have preserved the error for later

review on appeal .

     This was a costly error by defense counsel on Appellant's

behalf. This violates Appellant's fourth amendment right to be

free from unreasonable searches and seizures, and Appellant's

sixth amendment right to counsel. See: Strickland. 466 US 668

     The right to counsel             is the right to the effective

assistance       of counsel. Counsel           can deprive a defendant of the

right to effective assistance of counsel simply by failing to

render adequate legal assistance. Crim. Law § 46.4, citing

Strickl and.

     NOTE:     Several       other   entries   of    ineffective assistance        are

noted in the original appeal brief including:

     A. Failure to file proper motions
     B. Failure to object to inadmissible evidence
     C. Bringing up defendant's criminal history in trial
     D. Failure to produce an adversarial closing argument


     On this ineffective claim appellant is requesting a new

trial, suppressing the evidence from the search warrant which was

obtained without probable cause.



                                              -3-
        Issue   Number     Two:




        The trial court abused its discretion by denying appellant
his sixth amendment right to face his accuser.

        Defendant filed motions to disclose informant(s) and motion

for discovery. Both with hopes the trial court would grant the
disclosure in order for defense to properly authenticate the

officer/affiant's claims of an informant, and/or to properly
prepare for trial .

        Defenses   intent upon receiving this information would have

been:

        a). To determine if there truly was an informant;
        b). To determine if informer was able to identify appellant;
        c). To determine if un-named informer was ever inside residence, and
            if so, when;
        d). To determine when this information was given to officer/affiant;
        e). To determine if officer/affiant and un-named informer were both
            pointing the finger at the same person;
        f). To determine if officer/affiant and informer's allegations match.

        Rule 508(c)(2) states that once evidence is presented
showing the informer may provide testimony necessary to a fair

trial    determination of guilt, and the state invokes the informer's

privilege, the judge ^shal1] give the public entity a chance to
show in camera whether the informer can, in fact, supply that

testimony.

        Since the defendant may not actually know the nature of the

informer's testimony, however, he/she should only be required to

make a plausible showing of how the informer's information may be

important. See: U.S. v. Valenzuela-Bernal. 458 US 858, 102 S.Ct.

3440.

                                        -4-
       The trial    court upon determination not to reveal   the

identity of the un-named informant should have held an in-camera

review to determine whether or not un-named informer's testimony

was necessary to the fair determination of guilt, (Bodin v.

State. 807 S.W.2d 323), especially since without the officer/

affiant's "confidential      informer". There were no other officers,

nor    informants that could corroborate officer/affiant's

allegations.

       Under Rule 508(c)(2), it was the trial judge's duty to give

the public entity a chance to show in camera whether the informer

can, in fact,      supply that testimony. By this procedure not being

followed, it violated appellant's due process causing an unfair

trial in which appellant was not able to face and interrogate the

state's only witness that allegedly could say that he/she

actually saw appellant commit a crime against the State of Texas.

Especially since officer/affiant has no records of his own of an

independent police investigation.

       There was sufficient information presented to show that the

un-named informer could give testimony necessary to a fair

determination of guilt.      State's evidence showed that un-named

informer told police appellant was in possession of drugs, was

selling drugs, and that informer was      inside residence with

appellant. Police used information from un-named informer to

procure a search warrant, which when executed, led to the

discovery of cocaine and appellant was charged with possession.

See:   Bodin. supra.

       Appellant argues that the court abused its discretion by


                                    -5-
denying appellant the right to cross-examine the State's only

real witness.         Before the execution of the search warrant, there

was no evidence that appellant ever committed a crime against the

State of Texas, [except] the allegations of the un-named

informant. There was no independent investigation notated in the

affidavit itself nor presented in trial.                   Furthermore, there is no

mention that officer/affiant knew appellant personally.

Therefore, the officer/affiant himself only became a witness

after the execution of the search warrant along with the other

officer/witnesses that testified at trial, as to any information

about the case. [Except] for the allegations of the un-named
informer.

       By the court not disclosing the un-named informer, appellant

was deprived of a fair trial               and more so the opportunity to

disclose    if    the officer/affiant and           informant's       information was

corroborated.         Also   the   court   failed   to   hold   an   in-camera   review

in which it was the court's duty to do so upon denying

appellant's motion to disclose informer. This violates

appellant's constitutional             rights of due process, and assistance

of counsel .

       In order to claim a privilege not to disclose the identity

of the informant, the State [must] present (in camera if
necessary) facts which demonstrate that the identity is not

necessary for a fair determination of the charge. Tex.R.Evid.                         508

See:   Larv.     15   S.W.3d   581.

       Appellant request, due to fourth,                 sixth, and fourteenth

constitutional        amendment violations of due process, assistance of


                                             -6-
counsel, unreasonable searches and seizures, and the

confrontation clause, that this Appeal Court grant appellant a
new trial favoring appellant's issues presented.


                           CONCLUSION

     With these two issues alone Appellant strongly believes that
the Court of Appeals will agree that had Appellant's counsel, and
the trial court acted within the guidelines of the laws of Texas

and the U.S. Constitution, there is a very good chance that the
out-come of Appellant's case would have been different.



                             PRAYER

     Appellant Maurice Samuel Arrington, accordingly prays that
this Court grant him a rehearing in the above styled and numbered
cause, find that his attorney Jon Jon McDurmitt was ineffective,
that the trial court abused its discretion and any other issues
in Appellant's original brief that the Appeals Court finds to be
a violation of Appellant's rights, and grant him a new trial.


                                        Respectfully Submitted,
                                         ~74<C<Z.—,
                                        Maurice Samuel Arrington
                                        TDCJ-CID No.        1833454
                                        Ramsey One Unit
                                        1100   F.M.   655
                                        Rosharon, Tx.       77583




                               -7-
                       CERTIFICATE    OF   SERVICE




     I hereby certify that a true and correct copy of the

foregoing Motion For Rehearing was mailed to the following:

Assist District Attorney, Mr.   Bob D. Odom,         P.O.   Box 540,     Belton,

Tx. 76513 by placing   said Motion in the U.S.         mailbox on the

Ramsey Unit on the 17tn Day of December, 2015.




                                               Respectfully,


                                               Maurice Samuel          Arrington
                                               TDCJ-CID       No.    1833454
                                               Ramsey One Unit
                                               1100    F.M.    655
                                               Rosharon,       Tx.   77583




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