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                     BY:   ?'c'   '          • -   -       "


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                           IN     THE      COURT      OF    CRIMINAL          APPEALS

                                      FOR       THE   STATE       OF    TEXAS


                                      IN    CAUSE          NO.    CR21120-A


EX PARTE                                                    §     ON APPEAL FROM THE 35TH

GAR? DON BEASON                                             §     JUDICIAL DISTRICT COURT

                                                            §     OF BROWN COUNTY,           TEXAS




                   MOTION       TO    REBUT       APPEAL         ATTORNEY'S       AFFIDAVIT




        COMES       NOW,        GARY        DON       BEASON,           Applicant       in the foregoing

cause and wouldi.show M the                            Court that:             Appeal    Attorney Nathan

Butler       filed        his        response          to        the Court's order via affidavit

on January 5th,            2015.

         Applicant             did     not        recieve his             copy     until January 21st,

2015.        15     days        after his certification that said affidavit was

mailed on January 5th,                     2015.

         Applicant             herein           asserts          that     Appellant      Attorney claims

applicant          was     given           an     exact          copy of the indictment on file,

and     that       he     was        present          at        hearing       when Court ordered such

amendment.


         The       record will not support Applicant was ever at hearing,

or    was      notified          of        such       amendment,          until    August 8th,       2011 at

pretrial          hearing        where           he    waived           his    right to counsel.         The

Court       read        from     the        docket          and     stated       that   an   amendment   was


done.       (R.R.,       Vol.4,       P.10).
        The Court                 Clerk's         supplemental            record,     which        Applicant

recieved from his Direct Appeal Attorney during the direct Appeal

stage,        does         contain          a     motion         submitted on February 1st, 2011

by the State's Attorney requesting leave to amend.

         And,        an order by the Court signed gfcoruary 7th,                              which says:

"After         notice          feu Q^Li}n-&UirLO . . . "     but    defendant       was    never    at   hear

ing     or     notified              by     Court       Clerk       or his attorney of record at

that    time.

         The         record-        will        reflect-         that Attorney of record at that

time-    was         Attorney             Judson Wobdley;           who was- removed on May 31st,

2011     due         to        conflict         as     he also represented Applicant's wife

and     niece,        that were co-defendants and State's witnesses against

him.


          Appellant               Attorney's           claim       that        Applicant     was given an

exact         copy        of      indictment           on    record        is false,       and his legal

argument is moot.

         The Court of Criminal Appeals held in Aguilar v. State,                                          846

S.W.2d         318        (1993),          once       indictment          is     challenged via motion

to      quash,• if              defendant            does    not prevail at Court, it becomes

first         requirement on Appeal, (paraphrased).                                Therefore Appellant

Attorney was prejudicially ineffective on appeal.

         Applicant preserved the error according to Studor v. State,

799 S-W.2d 263 (Tex.Crim.App-1990), quoted in Aguilar v. State,

846      S.W.2d           318 (Tex.Crim.App.1993) and Art-1.14(b) of the Texas

Code     of    Criminal           Procedure.

          See        also         Applicant's           rebut       to     State's response in this

same     cause.




                                                            2.
                                                    Respectfully submitted,

                                                                      7)<jr\      '$jUU*P-\
                                                    GARY      DOIT BEASON

                                                    TDCJ#      1743056

                                                    McCONNSLL        UNIT

                                                    3001      S.   EMILY    DR.

                                                    BEEVILLE,        TEXAS    78102


                                  PNSWORN      DECLARATION


        I,    GARY      DON   BEASON,      Applicant           in the foregoing cause do

hereby        declare     under    penalty       of perjury that the foregoing               is

true and correct          to the best of my knowledge.

                                                                    jOth. j3jula&^
                                                 GARY        DOT   BEASON


                                                         0/-2&-/S
                                                 Dated        On


                                CERTIFICATE         OF   SERVICE


         I,     GARY DON BEASON,         the undersigned do hereby certify that

a     true    and     correct     copy    of     the foregoing motion was sent to

the     Brown       County District Attorney's office at 200 S.                       Broadway,

Suite 323, Brownwood, Texas 76801 on the Z&/K day of rJaJ\UL<xJ2.y
2015.                                                    u


                                                    GARY Q&N        BEASON

                                                    TDCJ#      1743055

                                                    McCONNELL        UNIT

                                                    3001      S.   EMILY    DR.

                                                    BEEVILLE,       TEXAS"73102




                                               3.
