                                  /S-?3-/5
                      CAUSE NO.

                                                                  ORIGINAL
                     IN THE COURT OF CRIMINAL APPEALS


                         FOR THE STATE OF TEXAS




                          JOSHUA JERROD THOMAS
                                                               COURT OF CRIMINAL APPEALS
                                  PETITIONER
                                                                    OCT 16 2015
                                      V.


                           THE STATE OF TEXAS




         FROM THE NINTH COURT OF APPEALS , BEAUMONT , TEXAS          FILED IN
                        CAUSE NO.    09-14-00220-CR          COURT OF CRIMINAL APPEALS
                                                                   OCT 16 2015
                             ON APPEAL FROM

                                                           Abel Acosta, Clerk
ORIGINAL TRIAL IN THE 252ND DISTRICT COURT , JEFFERSON COUNTY , TEXAS
                        TRIAL CAUSE NO.    11-12337




           PETITION                              RESPECTFULLY SUBMITTED BY:

              FOR

         DISCRETIONARY

            REVIEW
                                                 JOSHUA JERROD THOMAS
                                                 Petitioner
                                                 1931104
                                                 Beto Unit
                                                1391 FM 3328
                                                Tennessee, Colony, Tx.     75880
                                                 (903) 928-2217

                                                appearing before this court

                                                PRO-SE
                                  IDENTITY OF THE PARTIES

TRIAL COURT - 252ND DISTRICT COURT, JEFFERSON COUNTY, BEAUMONT, TEXAS
TRIAL CAUSE NO.     11-12337
TRIAL JUDGE - THE HONORABLE LINDSEY SCOTT, PRESIDING
PROSECUTORS ON THE TRIAL: RACHAEL GROVE, ASST. DIST. ATTY., JEFFERSON COUNTY, TX.
                                PERRY THOMAS , ASST. DIST.. ATTY., JEFFERSON COUNTY, TX.
                                BOB WORTHAM , DISTRICT ATTORNEY JEFFERSON COUNTY,SETX.
DEFENSE ATIYS. ON THE TRIAL:    GAYLYN COOPER, LEAD DEFENSE. COUNSEL
                                CAROLYN WIEDENFELD, ASST. DEFENSE COUNSEL

APPELLATE COURT - NINTH COURT OF APPEALS, 1001 PEARL ST. BEAUMONT, TEXAS 77701
APPELLATE CAUSE NO.     09-14-00220-CR
APPELLATE PANEL - CHIEF JUSTICE STEVE McKETTHEN, JUSTICE CHARLES. KREGER, JUSTICE LEAWE JOHNSON
PROSECUTORS ON THE APPEAL: ANN MANES, ASST. DIST. ATTY., JEFFERSON COUNTY, TX.
                                BOB WORTHAM, DISTRICT ATTORNEY JEFFERSON COUNTY, TX.
OFFENSE ATEE. ON THE APPEAL: THOMAS J. BURBANK (FILED ANDERS BRIEF)

                                     .TABLE. OF .CONTENTS


                                                                                           PAGE

IDENTITY OF THE PARTIES        -------______                                                      \_
TABLE OF CONTENTS      ----------_____
                                                                             i


INDEX OF AUTHORITIES      ----------                                      _>r___i:L
STATEMENT REGARDING ORAL ARGUMENT -         -    -    -     -   -   -    _..._•_       _      j_
STATEMENT OF THE CASE - - - - - - - - - ' _ _ _ _ _                                               i
STATEMENT OF PROCEDURAL HISTORY        ------_-___                                            j
QUESTIONS PRESENTED FOR REVIEW - - - - - - - - - _ _ _                                        2
ARGUMENT AND AUTHORITIES       ---------____                                                3_8
PRAYER / RELIEF REQUESTED - - - - - - - - - _ _ _ _                                         8, 9
UNSWORN DECLARATION - - - - - - - - - ' _ _ _ _ _                                             9
CERTIFICATE OF SERVICE         -------______                                                  9
APPENDIX    -----------______                                                                xx
ATTACHMENT (COPY OF MEMORANDUM OPINION)          -----____
                                 INDEX OF AUTHORITIES


CASE                                                             ,     PAGE

Alejandro v. State, 493 SW2d. 230 (CCA 1973)                              7
Anderson v. State, 633 SW2d 851 (CCA 1988) -*                             5
Bledsoe v. State, 178 SW3d 824,826 (CCA 2005)                           .4
Clark v. State, 717 SW2d 910 (CCA 1990)                                   5,.
Cooks v. State, 844 SW2d 697,722 (CCA 1992)             ^                ;3
Cortez.v. State, 683 SW2d. 419 (CCA 1984)                                 7
Cox v. State, 931 SW2d 349,352 (App. 2 1996)                              3
Davis v. State, 195 SW3d 311 (App. 14 2006)                               8
Deck v. Missouri, 125 Set. 2007 (2005)                                  3,4
Estelle v. Williams, 96 Set. 1691 (1976)                               '3,4
Everest v. State, 707 Sw2d 638 (CCA 1984)                                 7
Ex Parte Slaton, 484 SW2d 102 (CCA 1972)                                  3
Granadus v. State, 85 SW3d 217 (CCA 2002)                        •.-      5
Gray v. State, 99 Tx.Crim. 305 268 SW 941,950 (CCA 1924).               ,3-
Hammond v. State, 799 SW2d 741,749 (CCA 1990)                ,            7
Hart v. State, 581 SW2d 675,679 (CCA 1979)                                7
Hawkins v. State, 67 SW3d 918 (CCA 2002)                                  7
Hawthorn v. State, 848 SW2d 101 (CCA 1992)                                5
Hernandez v. State, 726 SW2d 53,57 (CCA 1986)                             6
Illinois v. Allen, 90 Set. 1057 (1970)                                    4
Irving v. State, 573 SW2d 5 (CCA 1978)                                    7
Kyles v. Whitley, 115 Set. 1555 (1995)                                    6
Long v. State, 823 SW2d 259, 282-83 (CCA 1991)                          3,4
Marquez v. State, 725 SW2d 217,229 (CCA 1987)                           3,4
McKenzie v. State, 617 ?W2d 214 (CCA 1981)                                7
Meneffee v. State, 614 SW2d 167 (CCA 1981)                                7
Owen v. State, 656 SW2d 458 (CCA 1983)                                    7
Rompilla v. Beard, 125 Set. 2456 (2005)                                   6
Simms v. State, 127 SW3d 924,928 (App. 13 2004)                           3
Strickland v. Washington, 104 Set 2052 (1984)                           5,5"*
U.S. v. Durham, 287 F.3d. 1297 (CA 11 2002)                             3,4
U.S. v. Escamilla, 666 F.2d. 126 (CA 5 1982)                              7
U.S. v. Mayes, 158 F.3d. 1215,1225 (CA 11 1998)                           3
Wiggins v. Smith, 123 Set. 2527 (2003)                                    6
Wiseman v. State, 223 SW3d 45 (App. 1 2006)                               3
Wright v. State, 178 SW3d 905 (App. 14 2005)                              7
                               UNITED STATES CONSTITUTION

USCA 6                                                                    6
USCA 14                                                                   3
Generally                                                                 8
                                  TEXAS CONSTITUTION

Tx. Const. 1§10                                                           5
Tx. Const. 5 § 13                                                         5
Generally1                               .                                8
                        TEXAS RULES OF APPELLATE PROCEDURE

TRAP 44.2                                                               4,5
TRAP 66.3                                                                 8
                         TEXAS CODE OF CRIMINAL PROCEDURE

Tx.Code Crim.Proc. 35.16 (a)                                              5
Tx.Code Crim.Proc. 35.16 (c)                                              5

                                             ii


                                                                                s@?p
                                    STATEMENT REGARDING ORAL ARGUMENT


        Petitioner         requests       oral    argument     on   Petition for Deicretionary review.
It     is     Petitioners      sincere       belief that oral argument may be helpful to support
and further clarify specific fact issues cited from the                       record of the underlying
trial proceedings, outline and present to this Court those matters which affected
the     proceedings,        but may lack complete disclosure from the record, and to allow
the     Court       of   Appeals     to    gain    direct knowledge from the Petitioner to assist
in resolving or answering questions raised from the pleadings.

                                            STATEMENT OF THE' CASE'


        The     underlying        case    presented      herein     to this Honorable Court of Appeals
in this        Petition       for Discretionary Review is whether Petitioner,, J'ohsua Jerrod-
Thomas received due process and a fair and impartial trial, whether his fundamental
constitutional           rights     to    same    were      violated,   and whether the conviction and
sentence given to him should be reversed in lieu of such.
        Petitioner strongly believes he did not have effective assistance of counsel
both     at    the       trial level and on direct appeal, that the. record clearly contains
evidence       of    reversable       errors and constitutional violations, which support the
grounds       raised on appeal, and that Petitioner clearly cited and referenced cases
previosly       decided      by     this Court of Appeals and the United States Supreme Court
which directly relate to and support Petitioners claims for relief.
        Petitioner        further     believes       that    he made a sufficient showing and raised
and called into question legal and factual issues and supported same by specific
citings       from the record - to require at a minimum the granting of an evidentiary
hearing       by    the    Court    of     Appeals     to further develop and expand the record on
same.       Petitioner       alleges       that    the Court of Appeals committed clear error and
abused their discretion                  in denying his direct appeal and in failing to provide
Petitioner         with an      opportunity        and a forum to expand the record in support of
his grounds          for relief and did abuse its discretion by not granting Petitioners
request for appointment of counsel who would provide him with effective assistance
for his direct appeal.

                                    STATEMENT OF PROCEDURAL HISTORY


1.      On September 9,            2015,     the Ninth Court of Appeals, by decision of a three
       Judge panel issued a memorandum opinion .denying Petitioners direct appeal
       which is the basis of this Petition for Discretionary Review.
2.     No motion for rehearing/rehearing Enbanc was filed or timely filed.
3.     There was no ruling made regarding a rehearing/rehearing EnBanc.


                                                     page 1
                                QUESTIONS PRESENTED FOR REVIEW

 QUESTION    NO.       1   Did the Court of Appeals err in denying Petitioners direct
                           appeal despite a showing from the record of prejudice               and
                           harm of an unfair trial when the trial Court required
                           Petitioner to appear in leg restraints for the entire
                           trial and allowing him to appear in hand restraints durring
                           testimony at guilt/innocence phase and in failing to               make
                           a finding in the record to justify same?

QUESTION    NO.    2       Was the Court of Appeals decision to deny Petitioners
                           direct appeal despite the constitutional issues raised and
                           implied in Question #1 - in direct conflict with decisions
                           of this Court and the U.S. Supreme Court and a departure
                           from the accepted and usual judicial decisions on this
                           important question of State and Federal law and the rights
                           of the Petitioner?

QUESTION    NO.    3       Did the Court of Appeals err when it denied Petitioner his
                           relief on direct appeal despite his showing in the record
                           that he was denied a fair and impartial trier of fact, and
                           thus a fair trial when the Trial Court allowed 2 jurists
                           to     be    impaneled       despite demonstrating at voir dire they
                           could       not     follow    the   law and/or showed bias toward the
                           testimony of law-enforcement personell?

QUESTION    NO.    4       Was    the        Court of Appeals decision to deny relief on the
                           constitutional         issue    raised   in   Question   #3   in direct
                           conflict with decisions of this Court and the U.S. Supreme
                           Court and a departure from the accepted and usual judicial
                           decisions on this important question of State and Federal
                           law and a denial of Petitioners rights?

QUESTION    NO.    5       did the Court of Appeals err by not granting direct Appeal
                           on the grounds of not having constitutionally effective
                           assistance of counsel by counsels failling to preserve
                           trial erors, allowing for errors raised in Questions 1 & 3
                           and failing to do a reasonably competent investigation
                           that    was       supported by specific, citations from the record
                           andlegal authority clear error and/or abuse of discretion?

QUESTION    NO.    6       Did the Court of Appeals err             by not    granting   relief or
                           holding      an     evidentiary     hearing   to   further develop the
                           record on Petitioners ground for relief for Prosecutorial
                           Misconduct despite a showing from the record with specific
                           references and with support of legal citations for same?

QUESTION    NO.    7       Was the Court of Appeals decision to deny the direct
                           Appeal on any of the constitutional grounds raised   to
                           include its decision to not grant or hold an evidentiary
                           hearing to expand the record for same in direct conflict
                           with prior decisions of this Court and/or the U.S. Supreme
                           Court and a departure from thevaccepted and usual judicial
                           decisions on similar, important questions of State and
                           Federal      law and an abuse of discretion and/or clear error
                           in denying Petitioners Ssis^oteapeta&nBBHKK' right to same?

                                                page
                                           ARGUMENT AND AUTHORITIES


QUESTIONS 1 & 2          : Petitioner         was      required    to wear leg restraints during his
                             entire trial (see: Trial Court Transcript [TCT] Vol.5 of 6 pg.
69, 2-9).     It is well established that the use of "Shackles" is called for only in
rare circumstances            Marquez        v. State, 725 SW2d 217,229 (Tx.Crim.App. 1987). "The
Texas     court     of   Criminal       Appeals        has long recognized the danger of allowing an
accused     to be seen          (or        in the presence of) shackled by the jury," considering
it     "obnoxious to the spirit of our laws and all ideas of justice", and only under
"rare exceptions" would this Court "consent for a conviction to stand".                       Gray   v.
State,     99 Tx.Crim.         305      268 SW 941,950 (Tx.Crim.App. 1924).          The Court in Gray
described     and     outlined        such     exceptions.        In   Petitioners case the trial Court
made no findings in the record consistent with accepted legal standards to require
him to be shackled for the trial, see: Simms v. State, 127 SW3d 924,928 (App.13 2004)
see also Cox v. State 931 SW2d 349,352 (App. 2 1996).                      In Long v. State, 823 SW2d
259,282-83        (Tx.Crim.App.       1991),     this     Court found that when the record does not
support use of shades or restraints it infringes on a defendants presumption                          of
innocence     and     is an abuse of discretion to do so.                The record in this case shows
no findings to support use of shackles, and is silent as to any justification for
same.      This     silence    by the Trial Judge is clear error. See: Cooks v. State, 844
SW2d 697,722         (Tx.Crim.App. 1992) and see also: Exparte. Slaton, 484 SW2d 102 (Tx.
Crim.App. 1972).         In United States v. Mayes, 158 F.3d 1215,1225 (CA 11 1998),                 The
11th     circuit     court     held    that     the mere "presence of shades and other physical
restraints     on     the    defendant        tends to erode the presumption of innocence". "The
presumption of innocence is an integral part of a criminal defendants right to
a fair trial",           quoting       Estelle v. Williams, 96 SCT. 1691 (1976).            In addition
to shackles         being     used     for the entire trial, Petitioner also appeared in Court
wearing hand restraints (cuffs) during the live testimony of 2 witnesses, (see:
TCT Vol.3, pg. 107, 23 through pg. 132, 12), (See also Brief on Appeal pgs. 18,19).
The U.S. Supreme Court held in Deck v. Missouri, 125 SCT. 2007 (2005) that it
violates     a defendants            due     process     rights to use visable restraints because of
their prejudicial effects. The 14th Ammendment guarantees criminal defendants the
right to a fair trial and the presumption of innocence until proven guilty.  In
Wiseman v. State, 223 SW3d 45 (App. 1 2006) they held that a defendant who appears
in leg restraints and hand restraints fundamentally compromises his rights to
such presumptions and fairness, it impedes a defendants ability to effectively
communicate with his attorney, and it creates both a physical limitation with the
added psychological effects such as distraction and embarrasment confusing the
defendant.        See also: U.S. v. Durham, 287 F.3d 1297 (CA 11 2002). In Durham,                   they
                                                       page 3
stated      that        other     adverse       effects          include      impairment of a defendants ability
to    participate          in     his defense            and take an active interest in the presentation
of    his    case.         The       Court     of Appeals was required to review on direct Appeal as
to whether the district Court provided reasons on the record to require Petitioner
to appear in shackles, and to explain why he appeared in cuffs. ID. Durham.                                     The
Court of Appeals was required by TRAP rule 44.2(a) to review such errors and conduct
a harm analysis - this was not done, which                              is   an abuse of discretion on the part
of the Court of Appeals.                 The Appellate record shows that the Government failed to
demonstrate         that       Defendants           defense      was     not harmed by such an impediment.            It
is insufficient for the Court of Appeals to simply state in their opinion that the
Appeal is frivolous and no arguable grounds for appeal exist without making further
inquiries.          The        Governments          response was simply the record is unclear. (States
Brief,      pg.     7).         If     this    is true, then the necessity of an evidentiary hearing
to further develop and expand the record - based on the Briefs and the record - was
indicated.         In fact, the Court of Appeals never even addressed whether to held                             an
evidentiary hearing, instead focused on denying Petitioners request for new counsel.
The Court of Appeals further erred when it applied this Courts decision in Bledsoe
v.    State, 178 SW3d 824,826 (Tx.Crim.App. 2005) as a blanket reason to not address
the merits of the issues raised in the Briefs. Further                                 their   decision    to   do so

conflicts with this Courts decisions in Long v. State and Marquez v. State and the
U.S. Supreme Court decisions in Illinois v. Allen, .90 SCT. 1057 (1970) and in
Deck v. Missouri and Estelle v. Williams regarding the constitutional implications
of    Petitioners          claims of 14th and 6th amendment violations, which are sufficient

to    vacate       his     conviction          and remand his case for a new trial.               An expansion of
the record and a complete review of the merits of the issues on Appeal is indicated
in this case, requiring reversal and a remand for same. Durham ID.

QUESTIONS 3 & 4            :    Here Petitioner alleges he was deprived of a fair trial by the
                                 impaneling         of     2     jurors      who   demonstrated at voir dire they
could       not    follow        the    law        and/or would give preferential bias toward testimony
of    law    enforcement             officials.          (See:    TCT     Vol.2 pg. 56, 6-9; pg.59, 20-24, and
pg. 51, 18 through pg. 52, 25).                      Venireperson #23 became juror #8 Leola D. Murray.
(App.Rec.         pg.     113,114),          and    sat on Petitioners jury for his trial, (see: Brief
pgs. 17,18). The other juror who showed bias towards police officer testimony was
not able to be identified from the record.                              Prejudice     is   presumed and shown from
the    record       that       these jurors were not constitutionally impartial and to be part
of    the    trier        of     fact    violated Petitioners right to a fair trial.                      This Court
has    consistently            held that a Panel which contains a Juror who demonstrates bias
and prejudice             would       render       the trial as unfair and would warrant a reversal of

                                                               page 4
his     conviction          for     that     Juror        serving    on the Panel.    See: Hawthorn v. State,
848     SW2d     101       (Tx.Crim.App. 1992).              The district Court abused its discretion and
committed clear error by not following the law. Tx.Code.Crim.Proc. 35.16(c) para 2
clearly .states             that       Jurors,      like    Juror     #8 "must be excused" bias exists as a
matter      of    law       when a Juror admits he/she is biased. Tx.Code.Crim.Proc. 35.16(a)
para. 8.       See: Clark v. State, 717 Sw2d 910 (Tx.Crim.App. 1990). See: also: Anderson
v. 'State,        633       SW2d       851    (Tx.Crim.App.         1988).    An impartial Jury is mandatory.
Tx.     Const.        1    §     10, Art. 5 § 13.           A Juror who knowingly will not follow the law
(ie. consider 5 years) is a form of Juror misconduct which can result in a mistrial.
See:     Granadus          v.     State,      85    SW3d 217 (Tx.Crim.App. 2002)           The Court of Appeals
memorandum        opinion          denying        the direct appeal clearly conflicts with this Courts
decisions        on       the     same issue,        the decision to not review or consider the merits

of     this    Appeal           departs      from    the     accepted and usual course of judicial review
and     raises     questions            of State and federal law in such a way as to conflict with
applicable decisions of this Court and the U.S. Supreme Court - thus the Court of
abused its discretion and                    committed clear error by failing to consider the merits
of     Petitioners Appeal, requiring a reversal for further considerations consistent
with     the     prior          opinions of this Court and the laws of this State and the United
States.     See also TRAP 44.2.


QUESTION       NO. 5        :     In    this Question Petitioner alleges that the Court of Appeals
                                  failure      to    consider the merits of his Ineffective Assistance

of     Counsel claims was an abuse of discretion and clear error.                           Petitioner clearly
cited specific references to the record along with legal case citations to support
his     claims    here.            Counsels        failures    encompassed       a myriad of deprivations of
Petitioners 6th Amendment right to                        effective     assistance.       His failure to object
and/or preserve errors for review is                        one.      The    State in their Brief stated this
issue      has    no       merit.       (States      Brief, pg.3), yet in thier very next sentence the
State      identifies counsels failure to preserve error in not challenging the Array,
it     writing, supported by affidavit.                     The State also verified that Defense Counsel
failed to preserve the error on the issue of cuffs/restraints at trial -                              which
represent Petitioners issues in questions #1 and #3 herein, Thus these issues                                 are
are either valid on their face or attach here by Counsels failures, not to preserve
these      errors as confirmed by the State.                       The trial Court never resolved the issue
regarding Venireperson #23 (Juror #8) for her impartiality and inability to follow
the law, in fact it further confirmed it. TCT Vol.2 pg.58,                            5    through   pg.60, 4).
The standards for reviewing Ineffective Assistance of Counsel Claims are found in
Strickland v. Washington, 104 SCT 2052 (1984).' This Court has consistently followed
Strickland.           In        addition     to     the    issues of Improper Juror and Unconstitutional

                                                            page 5
 use    of    restraints,          Counsel       failed    to    do a reasonable investigation to review
 facts, materials, and evidence to support a defense of his client.                                To rely on the
 States evidence, PSI reports, and the like fell short- of the prevailing profession
 standards . in          murder     cases.. See: Wiggens v. Smith, 123 SCT. 2527 (2003). In the
.instant case, here,. counsel failed to obtain ballistic reports, did not inquire                                 as
to..why       gun     shot residue tests were not done, failed to obtain expert testimony-
en gun misfiring.             '.He failed to obtain          medical         reports   regarding    life   saving
efforts by          EMS and        the    Port     Arthur Fire Dept. and hospital personnel.                Such
 evidence was mitigating for both guilt/innocence and                             punishment   phases      of    the
 trial.       He    denied        Petitioner       the "raw materials" needed for his defense.                  See:

 Rbmpilla      v. Beard, 125 SCT. 2456 (2005).                     Counsels failure to investigate stemmed
 from innattention, not strategical judgment.                          He denied his client the ability to
 make     informed        choices       amoung     the possible defenses (ie; accident, manslauter).
 Counsel presented a half-hearted case instead of developing and pursuing the most
 powerful      evidence          for    his client. Wigging @2530.              Evidence material to to guilt
 and punishment was excluded. See: Kyles v. Whitley, 115 SCT. 1555 (1995). Clearly
 Strickland requires Counsel to make a reasonably complete investigation and Counsels
 failure      to    do     so     was constitutionally               unreasonable - thus his representation
 fell     below      the accepted standards of reasonableness - making Counsels assistance
 ineffective and in violation of Petitioners 6th amend, rights to same.                               Petitioner
presented          specific       instances from the record to support his claims, See: (Brief,
pgs.      15,16), including decisions of the U.S. Supreme Court and citing this Courts
decision in Hernandez v. State, 726 SW2d 53,57 (Tx.Crim.App. 1986) to support his
 allegations.            Petitioner       avers     that     the     Court     of Appeals failure to consider
 the    merits      of     his     claims     of Ineffective Assistance of Counsel was an abuse of
 discretion        considering the above, that the record does in fact call into question
 the constitutionality                 of Counsels performance and requires               at a minimum further
 defelopment and expansion of the record to determine whether this issue rises to
 the level set forth in Strickland to support reversal of the denial of Petitioners
 Appeal and reversal of his conviction and a new trial on the merits.

 QUESTION NO. 6           :      Petitioner       posits        to    this Court that the prosecutor in his
                                 trial committed the act of prosecutorial misconduct in regards
 to her actions made at trial.                   Petitioner cited         specific     instances of misconduct
 in     his   Brief       to     the Court of Appeals (See: Brief pgs 16,18,21). The prosecutor
 discussed the punishment at guilt/innocence (Vol.4, pgs 96,18 to pg.97, 15) and
 (Vol. 4, pg. 103, 11-24) She made a recommendation of punishment of a specific
 term of years (48 years) to the jury, she made remarks as to the credibility of
 witnesses,         referred       to    infamous     criminals         to    compare to the defendant.         This

                                                           page 6
Court     has held that EACH of these acts to be impermissible. See: Cortez v. State,
 683    SW2d       419        (Tx.Crim.App.        1984)(punishment at guilt/innocence) see also: Hart
 v. State, 581 SW2d 675,679 (Tx.Crim.App. 1979); Alejandro v. State, 493 SW2d 230
 (Tx.Crim.App.1973)(going beyond permissible argument); Irving v. State, 573 SW2d 5
 (Tx.Crim.App.1978)(reccommending of specific term of punishment) see also: Hammond
v.     State,       799       Sw2d     741,749(Tx.Crim.App. 1990) (using           her     position of...authority
to convey a personal opinion to sway the jury)                            and also see:        Wright   v. State,
178 SW3d 905(App.l4 2005)(to sway jury to ignore duty to deliberate); Menefee                                 v.
State,        614    SW2d 167 (Tx.Crim.App.1981)(credibility of witnesses); Owen v. State,
656 SW2d 458(Tx.Crim.App.1983)(arguing remorse and taking responsibility); McKenzie
v. State, 617 SW2d 214(Tx.Crim.App. 1981)(false statements); and Everest v. State,
707 SW2d           638(Tx.Crim.App.l98%)(critizing                    defense   Counsel)     - ALL of these acts
were committed by the prosecutor in this case. Glaringly the Prosecutors reference
to     an infamous assassination (Kennedy)(Vol. 4, pg. 91, 10-14) to put in the minds
of     the    Jurors          to compare PEtitioner to Lee Harvey Oswald.                   Neither Counsel, nor
the Court made any attempt to erase this improper comparason from the minds of the
Jury - and may in and of itself have warranted a mistrial. See: U.S. v. Escamilla,
666 F.2d. 126 (CA 5 1982). This Court has consistently ruled that unless prejudice
can be eliminated, a trial Court MUST declare a mistrial. Citing Hawkins v. State,
67 SW3d 918 (Tx.Crim.App. 2002).                      The prosecutor gave definitions to the Jury             on
what     "beyond          a    reasonable      doubt"        means.    Saying it means to "use common sense
and     reason"       (Vol.2,          pg.13, 11 to pg.14, 1). She did this AFTER saying that "the
highest       criminal          court       in the State of Texas has said they're not going to give
y'all     a       definition"          - citing this Courts directives on this issue - clearly she
knew she was doing something not permitted here                           and demonstrating, on the record,
her disregard of the law and rulings of this Court. Knowingly trying to improperly
influence the Jury soas to impunge and deny Petitioners right to a fair trial and
a fair review - and prejudiced the proceedings.                           The Prosecutor even indicated to
the    Jury        that       "had     it   been     my Aunt or my Mother, I would have been extremely
upset.        I     probably         would    have    wanted to have killed whoever did that too...".
Her nefarious purpose here was to incite the Jury to want revenge, but to play on
their morals.            The     totality      of      the    prosecutors statements, misstatements, and
improper and impermissible conduct and tactics - define the basis of a review for
misconduct - yet the Court of Appeals just disregarded all of this in denying the
Petitioners Appeal. The Court of Appeals failure to follow the accepted and usual
course of           review of Claims such as prosecutorial misconduct - clearly conflicts
with    this        Courts       and    the    U.S.    Supreme Courts decisions on such impermissible
conduct       and    deviates          from    the    accepted        State and Federal law so as to create

                                                         page 7
 inconsistancy in answering questions considering same, and warrants a reversal of
 the Court of Appeals denial of the Petitioners Direct Appeal and a remand to the
 Court    of Appeals     to hold an evidentiary hearing and consider Petitioners claims
 on the merits.


 QUESTION NO. 7      : Petitioner here questions      , in general,    the basis of the
                         Court   of Appeals decision to not grant him a "day in court",
 to not grant him an evidentiary hearing to expand the record on Appeal to further
 add to the citations from the trial court record and legal authorities in support
 of his claims for relief, to not consider the merits of his appeal, to not afford
 him his right to constitutionally effective assistance of counsel by appointing
him one who would actually assist him for his direct appeal. Petitioner refers to
TRAP     rule 44.2(a),    in that once errors are identified, the burden shifts to the
State to PROVE the error is harmless "beyond a reasonable doubt", and to PROVE the
error did not contribute to the conviction or punishment, and for the Court of
Appeals     to conduct    a harm analysis - but this was not done in Petitioners case.
See: Davis v. State, 195 SW3d 311 (App. 14 2006). The question is why.       But of course
this     is not the purpose of a discretionay review, it is not to determine whether
the Court of Appeals "got it right", but rather whether in this particular case
their decision to not consider and review the issues presented by Petitioner
in
     his Briefs, issues of constitutional magnitude, will have or will likely have
an   adverse effect upon the jurisprudence of this State. (See TRAP rule 66.3).
Petitioner avers that it would.           Any time the Constitutional rights guaranteed
by the constitutions of the U.S. or the Constitution and laws of the State of Texas
are violated - the Courts MUST be consistent in its holdings and rulings and
have a sound basis in law or fact to stray from same so as to maintain uniformity
of justice and protect the fundamental rights of the people - which in the case of
this Petitioner have been voiced to the Courts below, but as of yet have not
found an ear to be heard. Petitioner believes the memorandum opinion by the
Court of Appeals does so conflict with this Courts and the U.S. Supreme Courts
rulings on these constitutional issues and as such requires reversal.
                                 PRAYER / RELIEF REQUESTED
WHEREFORE PREMESIS CONSIDERED, Petitioner Joshua Jerrod Thomas respectfully does
request that this Honorable Court of Criminal Appeals GRANT this his Petition for
Discretionary Review and REVERSE the denial of his direct appeal in the memorandum
Opinion of the Ninth Court of Appeals and REMAND his         case back to that Court
for a review on the merits of his Appeal. Petitioner further PRAYS that this Court
ORDER that the Ninth Court of Appeals schedule and hold an Evidentiary Hearing and
Appoint to Petitioner new Counsel to assist him at said hearing and assist' him with
his direct Appeal.
                                          page 8
Petitioner further PRAYS that this Court GRANT him        any       and   all        other relief to
which he may be entitled to.

                                                           Respectfully submitted,
on this ft(o day of QckWc •2015.                           \ \<gly£ J\jj^"
                                                            Joshua Jerrod Thomas
                                                           Petitioner pro-se
                                                           1931104
                                                           Beto Unit            1391 Fm 3328
                                                           Tennessee Colony, Tx. 75880
                                                           (903) 928-2217

                                  UNSWORN DECLARATION


I, Joshua      Jerrod Thomas do hereby swear under the penalty of perjury that the
facts and      statements made in this "Petition for Discretionary Review" are true
and correct.



Sworn and signed on this qVq day of QcVaVyx" /2015.        SLoehua Jerrod Thomas

                                 CERTIFICATE OF SERVICE


I, Joshua Jerrod Thomas do hereby certify that I mailed the original and/or a
copy of this Petition by placing same into a proper envelope,' that I did affix
sufficient pre-paid U.S. FIRST CLASS POSTAGE TO SAME, AND THAT I did address same
to the parties listed herein below and placed same into the available mailing
system used for such legal mail.                                v               /•


Certified on this Q,^ day of QAqW/ /2015.                 \Lodhua Jerrod Thomas
SENT TO:


THE TEXAS COURT OF CRIMINAL APPEALS 201 W. 14th Street, Room 106 PO Box 12308
Capitol Station, Austin, Texas 78711-2308 Attn: Abel Acosta, Clerk of the Court

THE NINTH COURT OF APPEALS , 1001 Pearl Street, 3rd Floor
Beaumont, Texas    77701   Attn: Carol Anne Harley, Clerk of the Court

BOB WORTHAM , Criminal District Attorney for Jefferson County, Texas
1001 Pearl Street, Beaumont , Texas    77701

cc:   file




                                        page 9
                                            APPENDIX




     In compliance with TRAP rule 68.4 (j) , Petitioner includes this "APPENDIX"
to his Petition for Discretionary Review.




                         ATTACH HERE YOUR COPY OF THE FOLLOWING:


                                             In The

                                       Court of Appeals
                           Ninth District ot Texas at Beaumont


                                      NO. 09-14-00220-CR



                              JOSHUA JERROD THOMAS, Appellant
                                                V.

                                THE STATE OF TEXAS, Appellee



                         ON APPEAL FROM THE 252nd District Court
                                 Jefferson County, Texas
                                   Trial Cause No. 11-12337




                                       MEMORANDUM OPINION


     AFFIRMED.


                                                                  LEANNE JOHNSON
                                                                       Justice


     Submitted on April 9, 2015
     Opinion Delivered September 9, 2015
     Do Not Publish

      Before McKeithen, C.J., Kreger, and Johnson, JJ".

     NOTE:   : A COPY OF THIS MEMRflNCUM OPINION COULD NOT BE MADE DUE TO'PEITTICNERS'TJSQ\RCERATICN,
               AND TDCJ POLICY WHICH PROHIBITS INCARCERATED ISDIVIEUALS FROM HAVING ACCESS TO AND/CR
               USE OF COPYING DEVICES - WTMUT A COURT CRDER FOR SAME.




                                                 xx
                                      In The


                                Court ofAppeals

                    Ninth District of Texas at Beaumont



                              NO. 09-14-00220-CR




                   JOSHUA JERROD THOMAS, Appellant



                       THE STATE OF TEXAS, Appellee



                   On Appeal from the 252nd District Court
                             Jefferson County, Texas
                            Trial Cause No. 11-12337



                          MEMORANDUM OPINION


      A jury convicted Joshua Jerrod Thomas (Thomas) of murder, a first degree

felony. See Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). The jury assessed

punishment at sixty years in the Texas Department of Criminal Justice,

Institutional Division. Thomas timely filed a notice of appeal.

      Thomas's appellate counsel filed an Anders brief that presents counsel's

professional evaluation of the record and concludes the appeal is frivolous. See

Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex.
                                          1
Crim. App. 1978). On April 7, 2015, we granted an extension of time for Thomas

to file a pro se brief. Thomas filed a pro se brief in response, which raised a

number of issues for appeal.

      The Texas Court of Criminal Appeals has held that we need not address the

merits of issues raised in Anders briefs or pro se responses. See Bledsoe v. State,

178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Rather, we may determine that

(1) "the appeal is wholly frivolous and issue an opinion explaining that [the

appellate court] has reviewed the record and finds no reversible error" or that (2)

"arguable grounds for appeal exist and remand the cause to the trial court so that

new counsel may be appointed to brief the issues." Id. (citations omitted).

      We have independently reviewed the entire appellate record in this matter,

as well as all briefs, and we agree with counsel's conclusion that no arguable issues

support an appeal. Therefore, we find it unnecessary to order appointment of new

counsel to re-brief the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511

(Tex. Crim. App. 1991). We affirm the trial court's judgment.1

      AFFIRMED.




                                                         LEANNE JOHNSON
                                                                 Justice


      1Thomas may challenge our decision in this case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
                                          2
Submitted on April 9, 2015
Opinion Delivered September 9, 2015
Do Not Publish


Before McKeithen, C.J., Kreger, and Johnson, JJ.
