      /YS6VY
     NO.    PD-1486-14
                                     ORIGINAL
            IN THE

COURT OF CRIMINAL APPEALS

           OF TEXAS




                                      RECEIVED IN
  ERNEST BENL MCINTYRE              COURT OF CRIMINAL APPEALS
  Petitioner, Appellant
                                         APR 17 2015
             V.
                                    Abel Acosta, Clerk
   THE STATE OF TEXAS
           Appellee




                                         FILED IN
                                COURT OF CRIMINAL APPEALS
                                       APR 17 2015

                                    Abel Acosta, Clerk




  MOTION FOR REHEARING




                  ERNEST BENL MCINTYRE
                  202 Avenue F, Apt.#2
                  Moody, Tx. 76557
                  (254) 853-9146
                  PETITIONER, APPELLANT PRO SE
                          NO.   PD-1486-14


ERNEST BENL MCINTYRE             §     IN THE

                                 §
V.                               §     COURT OF CRIMINAL APPEALS



THE STATE OF TEXAS                     OF TEXAS




                       MOTION FOR REHEARING



TO THE HONORABLE JUSTICES OF THE COURT:



     COMES now, Ernest Benl Mclntyre, Appellant, Movant pro se,

and files this Motion for Rehearing contending that said motion

is grounded only on substantial intervening circumstances which

requires this Court's supervisory authority to protect Movant's
right to appeal, and in support whould show:

                        1 - CASE HISTORY

     Movant pleaded guilty to possession of child pornography. See

TEXAS PENAL CODE § 43.26. After a non-jury punishment hearing, the
trial court sentenced Movant to 9 years confinement. (RR.5,p.64).
Movant's court-appointed appellate attorney filed a motion to

withdraw supported by an ANDERS brief on December 4, 2012, concluding

that an appeal would be frivolous and without merit. SEE ANDERS V.

CALIFORNIA, 386 U.S. 738 (1967). Movant filed a pro se brief on
May 22, 2013, and a panel of the Third District Court of Appeals
consisting of Chief Justice Jones, Justices Rose and Goodwin, held
that there was no reversible error in the trial court's judgment




                                 1.
of conviction and granted appellate counsel's motion to withdraw.

SEE MEMORANDUM OPINION, No. 03-12-00508-CR. Movant then filed a

motion for rehearing en banc on August 19, 2014, which was overruled

on October 10, 2014. A pe'tition for discretionary review was then

filed in this Court by Movant on January 16, 2015, which was refused

on February 25, 2015. This motion for rehearing follows.

                      2- - GROUNDS FOR REHEARING


     In it's memorandum opinion, the court of appeals erroneously
concluded that the State's withholding of 47 crime scene photos
until AFTER Movant had pleaded guilty did not effect the voluntariness

of Movant's guilty plea, and that therefore, there were no arguable
grounds to be advanced on appeal. SEE MEMORANDUM OPINION pg. 2, No.

03-12-00508-CR, Third District. To support it's conclusion, the
court of appeals relied in part on Movant's confession that was
given during the hearing on punishment six weeks after seeing the

photos of the suspect computer and after the photos of the computer

were admitted into evidence; even placing emphasis on Movant's
confession in bold letters, and because Movant failed to show that

the photos were favorable to him. The court of appeals conclusion.,

on this point is misplaced. The relevant facts supporting rehearing

are set out as   follows:

     Movant established in his pro se appeal brief to the court of

appeals and in his pro se PDR to this Court that 47 crime scene
photos were withheld by the State until after Movant had pleaded




                                  2.
guilty. (RR.4,p.4-5). Whether there are any arguable grounds for

appeal in this case would turn on the materiality of said photos

under BRADY. SEE BRADY V. MARYLAND, 373 U.S. 83 (1963). As discussed
in Movant's PDR pg. 10-12, the relevant photos show (l) the suspect
computer with both side casings removed in which it appears that

the computer was at the time in a state of assembly and testing,

and; (2) what Movant incorrectly argued was the suspect monitor
turned on and operating while displaying dates of April 28, 2003,

which Movant incorrectly believed to be the dates the contraband

was loaded into the suspect computer. A closer inspection, however,

reveals that these photos were MUCH more significant and MUCH more

material to Movant's guilty plea than previously argued.

     In the appendix to this motion for rehearing, Movant has attached
copies of the relevant photos that were withheld by the State and

later admitted into evidence without objection and identified as

State's 2. (RR.5,p.l6). All except one of the atteched photos were

attached to Movant's pro se brief to the court of appeals; all of
which were a part of the record for the court of appeals' review
under ANDERS. To confirm for this Court that Movant is discussing

the correct computer containing the contraband, the inventory sheet

describes the suspect computer as Item #3, computer with covers
off, which was entered into evidence and identified as State's 5.
(RR.5,p.l7). The record further identifies the suspect computer as
custom built, (RR.5,p.22), and contained 3 harddrives, and only one




                                3.
of those harddrives contained contraband. (RR.5,p.31). In photos
numbered 1 & 2, the Court can see, inter alia, a computer monitor

with one computer sitting on each side. The suspect computer is

located on the left with a view of the right side casing removed

and two electrical cords draped over the top of the computer; one

thin cord and one thick cord. Photo number 3, shows a close-up of

the left side of the suspect computer with the left side casing

also removed, and one of the 3 harddrives hanging out the side, as

testimony revealed that this computer had three harddrives. (RR.5,
p.31). This photo, however, shows a much more important fact. Just
above the hanging harddrive, and a little to the right, looking

into the rear interior of the suspect computer, there are 4 empty

slots. These slots are supposed to have up to 4 interface cards in

them which the computer cannot operate without. Although the record

does not identify the parts that are missing from the computer,

this photo clearly shows said computer in a state of assembly and

that said computer was not even functional. Photo number 5, shows

the suspect computer while being pulled out by law enforcement

exposing a rear view of said computer. The small wire pluged in

to the rear is a mouse. The lager plug is for the monitor, and a

power cord can vaguely be seen at the bottom. The internet connect

is located between the mouse and monitor. Note that this computer

is not connected to the internet. Although the record does not

contain testimony identifying these connections, this photo shows




                                4.
the two componant cords draped over the top of the computer and

obviously not in use. To support this fact, photos numbered 3,5,

6,7,9|, & 10, all show the monitor turned on and operating. Obviously,

according to the photos discussed, whatever is being displayed on
the monitor is not coming from the suspect computer which contained

the contraband. Additionally, photo number 6, shows law enforcement

pulling out a server unit. The first plug that is closest to the
left on the rear of the server, is an internet connection. The

second is a mouse, and the third, which is a larger plug, is for a
computer. If the Court will look closely on the rear of the server

and on each side of the computer plug, you will see that there are

two additional places available in which to make additional computer
connections. These are Input/Output Connectors. Although there is

no testimony in the record identifying these connections, photo
number 6, clearly shows that there is only one main componant, (i.e.
computer), connected to the server.
     Photos numbered 12,13,14,15,17,& 18, all show a mass array of

computer parts and an additional computer. Movant requests this
Court to take judicial notice of the photos in the appendix to this
motion for rehearing. The record further shows that a very large

number of computers, harddrives, and other computer storage devices
were seized as a result of a search warrant. SEE STATE'S 5, RETURN

INVENTORY & SEIZURE REPORT. Testimony described Movant's "shed" as
a computer workshop with various computers and computer parts. (RR.




                                 5.
5,p.15). The suspect computer was recovered from Movant's work
shop. (RR.5,p.36). Testimony also established that Movant is a
computer network engineer and computer technician with a degree

in computer science. (RR.5,p.46). Movant argued to the court of
appeals and in his PDR that the relevant photos withheld by the
State and discussed in further detail heretofore, would have

supported an affirmative defense that Movant custom built the
suspect computer not knowing that he was installing contraband.
Movant had the right to the presumption of innocence and the right
to put the State to it's burden of proof before a criminal conviction,
SEE MILES V. STATE, 204 SW 3d 822,825 (Tex.Crim.App.2006)(and cases
cited therein). As previously discussed, the court of appeals

emphasised Movant's confession. SEE MEMORANDUM OPINION, pg.2.
However, in EX PARTE TULEY, this Court stated...
         "The guilty plea process is not perfect. But guilty
     pleas allow the parties to avoid the uncertainties of
     litigation. The decision to plead guilty...,may be
     influenced by factors that have nothing to do with the
     defendant's guilt. The inability to disprove the State's
     case, the inability to afford counsel, the inability to
     afford bail, family obligations, the need to return to
     work, and other considerations may influence a defendant's
     choice to plead guilty or go to trial."
SEE EX PARTE TULEY, 109 SW 3d 388,393 (Tex.Crim.App.2002)(also see
footnote 2 for additional reasons a defendant may plead guilty).
In this case, the record is silent as to why Movant entered a
plea of guilty, although the record does show that defense counsel
did make a plea to the trial court for probation. (RR.5,p.59-61).




                               6.
But obviously, at some point, there was a discussion between
Movant and his attorney that resulted in a guilty plea. In any-

other circumstances, it would be inappropriate for a reviewing

court to infringe upon counsel's actions which would otherwise be
considered sound trial strategy. SEE EX PARTE KUNKLE, 852 SW 2d

499,505 (Tex.Crim.App.1993). Now, however, the reviewing court is
doing exactly that. (EMPHASIS ADDED). It cannot be assumed by the
reviewing court that any advice to Movant by his attorney was not

affected by the State's withholding of said crime scene photos
when considering the totality of the evidence, which, obviously,
denied Movant a valid, not only plausible, but likely, affirmative

defense strategy.

        In light of the new relevant facts as to the materiality of
the crime scene photos under BRADY, Movant requests this Court

to grant rehearing and consider these new points along with his
original PDR and pro se brief to the court of appeals. It should
be remembered that the focal point of these appellate proceedings
is to determine whether Movant is entitled to counsel on appeal

under   ANDERS.

                                PRAYER

        For the foregoing reasons, Movant prays this Court grant

rehearing.


                                     Respectfully Submitted,
 Ernest BenT Mclntyre       a
 202 Avenue F, Apt.#2       v
 Moody, Tx. 76557
 (254) 853-9146
 APPELLANT, MOVANT PRO SE




8.
                       CERTIFICATE OF   SERVICE

       This is to certify that a true copy of the foregoing was
served on each party as indicated below on this &C*£ day of
April, 2015, via U.S. mail, postage pre-paid.


State Prosecuting Attorney              Bob Odom
P.O.   Box 12405                        Crim.Dist.Attorney
Austin, Tx. 78711                       P.O.   Box 540
                                        Belton, Tx. 76513


Tim Copeland
Attorney at Law
930 S. Bell Blvd.,Ste.408
Cedar Park, Tx. 78613
APPELLATE COUNSEL   FOR MOVANT
(WITHDRAWN)


                                      Ernest Benl Mclntyi
                                               nl Mclntyre      s
                                     Appellant, Movant pro se



                             CERTIFICATION



       This is to certify that the foregoing Motion for rehearing

is grounded only on substantial intervening circumstances and is
made in good faith and not for the purpose of delay.



                                     Ernest Benl Mclntyre
                                     Appellant, Movant pro se
           APPENDIX




APPENDIX




           APPENDIX
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