                                                             PD-0360-18
                                            COURT OF CRIMINAL APPEALS
                                                           AUSTIN, TEXAS
                                              Transmitted 6/3/2018 2:05 PM
                                               Accepted 6/5/2018 12:20 PM
                                                    DEANA WILLIAMSON
                                                                    CLERK
          No. PD-0360-18
                                                 FILED
                                        COURT OF CRIMINAL APPEALS
                                               6/5/2018
                                         DEANA WILLIAMSON, CLERK
                 In the
        Court of Criminal Appeals
               at Austin
                 ♦
   Petition for Discretionary Review

    from Second Court of Appeals
         Fort Worth, Texas
   Trial Court Cause No. F17-2106-211
         of Denton County, Texas
                 ♦

        IN RE QUINCY BLAKELY
                 ♦

PETITION FOR DISCRETIONARY REVIEW




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                  IDENTIFICATION OF PARTIES AND COUNSEL


Petitioner:
Quincy Blakely
2701 Little Elm Parkway #100-551
Little Elm, Texas

Counsel for Petitioner
None

Real Party in Interest:
State of Texas Adverse Party
1450 E. McKinney
Denton, Texas 76209


Counsel for Real Party in Interest:
Paul Johnson, District Attorney
1450 E. McKinney
Denton, Texas 76209
Telephone: 940-349-1600
Facsimile: 940-349-2606


Trial Court Judge
Honorable Brody Shanklin
1450 East McKinney Street 2nd Floor
Denton, TX 76209-4524
(940) 349-2330
(972) 434-8873
(940) 349-2331 (Fax)




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                                        TABLE OF CONTENTS

TABLE OF CONTENTS.............................................................3

INDEX OF AUTHORITIES........................................................4-5

STATEMENT OF THE CASE..................................................... 6

ARGUMENT IN SUPPORT OF REASONS FOR REVIEW……6-12

APPENDIX………………………………………………………...13-21

PRAYER FOR RELIEF…………………………………………22

CERTIFICATE OF SERVICE……………………………………22

CERTIFICATE OF COMPLIANCE………………………………22




                                                       Page 3 of 22
                           TABLE OF AUTHORITIES



1. Bill of Rights of the United States of America

2. United States Constitution

3. Texas Constitution

4. Miranda v. Arizona, 384 U.S. 426, 491; 86 S. Ct. 1603

5. Gerstein v. Pugh, 420 U.S. 103 (1975)

6. County of Riverside v. McLaughlin, U.S., 111 S. Ct. 1661, 1670, 114 L. Ed. 2d 49 (1991)

7. Rabb v. State, 730 S.W.2d 751, 752-54 (Tex.Crim.App.1987)

8. Kelly v. State, 724 S.W.2d 42 (Tex.Cr.App.1987)

9. Scott v. State, 690 S.W.2d 256, 258 (Tex.Crim.App.1985) 10. Omura v. State, 730 S.W.2d 766,

   768.

10.Howard v. State, 690 S.W.2d at 255-56

11.Morrow v. Corbin, 122 Tex. 553, 560-61, 62 S.W.2d 641, 645 (1933)

12.McChain v. City of Fond Du Lac (Wis 1959) 96 N.W.2d 607

13.Perkins v. Crittendon, 462 S.W. 2d 565, 567-568 (Tex. 1970)




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14.Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984)

15.Donnelly v. Dechristoforo, 1974.SCT.41709 ¶ 56; 416 U.S. 637 (1974).

16.Trinsey v. Pagliaro D.C. Pa. 1964, 229 F. Supp. 647

17.Porter v. Porter, (N.D. 1979) 274 N.W.2d 235

18.United States v. Lovasco 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752

19.Young v. First Bank of Bellevue (Neb 1994)516 N.W.2d 256

20.Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex.1975)

21.Humphreys v. Caldwell, 888 S.W.2d 469 (1994)

22.Walls v. State, 273 S.W.2d 875, 876 24. Gary v. Vick, 203 S.W.2d 869, 870

23.Witty v. Rose, 148 S.W.2d 962, 964

24.Alvarez v. State, 861 S.W.2d 878

25.Donnelly v. Dechristoforo, 1974

26.Miller v. United States, 230 F.2d 486 (5th Cir. 1956)




                                           Page 5 of 22
                               STATEMENT OF CASE

       On April 13, 2017 at 12:25pm, I was arrested for allegedly unlawfully carrying a

firearm in violation of Penal Code 46.02 without a warrant being issued based upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized. I was not engaged in criminal activity, but in my private car

when I was ordered to exit my car after I had just walked out of a convenience store located at

26748 E. University Drive Little Elm, Texas.


                               ARGUMENTS PRESENTED


       The penal code I was allegedly charged with violating, Penal Code 46.02 (c) was

presented by William P. Keith to the prosecutor to be charged when William P. Keith knew that

he was stimulated legal process by making false statements in his affidavit EXHIBIT A when it

was within his personal knowledge that I was directly enroute to my private car, and was in fact

in my private car when I was unlawfully arrested for possessing a handgun while in my car,

although the indictment EXHIBIT B states that “the defendant was not inside or directly enroute

to motor vehicle”, which on its face contradicts the officer’s affidavit.



       In the officer affidavit, William P. Keith was aware that he was making a false statement

when he advised that the convenience store had the 51% sign, because the 51% sign is for

establishments that are licensed to sell alcoholic beverages for on-premises consumption whose

alcohol sales constitutes more than half of gross receipts. See

https://www.tabc.state.tx.us/laws/sign_requirements.asp These sign have 51% in large red letters

superimposed over the warning and the warning notes that possession of a concealed weapon on

the premises is a felony. There in fact was no sign posted as required per TABC to warn

customers that the business is an establishment that sells alcoholic beverages.


                                            Page 6 of 22
       Penal Code 46.02 read as follows: (a) A person commits an offense if the person: (1)

intentionally, knowingly, or recklessly carries on or about his or her person a handgun, or club;

and (2) is not: (B) inside of or directly en route to a motor vehicle or watercraft that is owned by

the person or under the person’s control. The officer affidavit clearly states that I was en route to

my car and then inside of my car without any incidents.



       After being arrested pursuant to a bond forfeiture, I was charged with violating Penal

Code 46.02, in which is only an offense if: a person intentionally, knowingly, or recklessly

carries on or about his or her person a handgun or club; and (2) is not: inside of or directly en

route to a motor vehicle or watercraft that is owned by the person or under the person's control.



       EXHIBIT A is the arrest report that states that I was directly en route to my car, and in

fact, inside of my car when I was arrested without incident. EXHIBIT B is the indictment, and

on its face contradicts what the affidavit for arrest warrant was attested to. There is nothing in the

indictment that state the facts relied upon to support that I, Quincy Blakely intentionally or

knowingly, carried on or about with a handgun. In fact, the report shows that I was compliant

and was arrested without incident.



       I filed a Pre-Trial Writ of Habeas Corpus in the 211th Judicial District Court of Denton

County challenging the following which was denied, and an appeal followed in the Second Court

of Appeals:




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       Issued Presented:

       (1) Arrested without an arrest warrant

       (2) Constitutionality of Statute

       (3) Failure to Arraign

       (4) Denial of right to a probable cause determination hearing

       (5) Indictment failed to inform the charge against me to prepare a proper defense

       (6) Challenge the jurisdiction of the Trial Court.



                        Arrest without an Arrest Warrant

       On April 13, 2017 at 12:25am, I was arrested for an alleged unlawfully carrying a

firearm Penal Code 46.02 without a warrant being issued based upon probable cause, supported

by Oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized. I was not engaged in criminal activity, but in my private car when I was

ordered to exit my car after I had just walked out of a convenience store located at 26748 E.

University Drive Little Elm, Texas. There were no exigent circumstances that existed that would

have prevented William P. Keith from obtaining an arrest warrant if he believed that I was

committing the felony of unlawfully carrying a firearm. His own affidavit states that I went into

the store then came out and got into my car, and was then removed from my car and arrested

pursuant to a bond forfeiture warrant. At no time was William P. Keith aware I possessed a hand

gun or did he even allege that I possessed a handgun and was acing intentionally, knowingly or

recklessly while enroute to my car and while in my car. In fact, he stated that there were no

incidents.


       Probable cause depends on whether the officers “possess[ed] knowledge that would

warrant a prudent person's belief that [the suspect] had already committed or was committing a

crime.” Eugene, 65 F.3d at 1305. The arresting officer state’s in his own report that he was not


                                           Page 8 of 22
aware that I had a weapon until I advised him that I did when I was told I was under arrest for an

outstanding warrant.


                              Constitutionality of Statute

       Penal Code 46.02 is unconstitutional as applied to me, Quincy Blakely because I was

directly en route to my private car, and in fact was inside of my car when I was charged with

violating penal code 46.02.


       Provision of Code of Criminal Procedure Chapter 14 Arrest Without Warrant, will

cause the Court to deprive me of my protected right guaranteed by the Fourth Amendment to the

United States Constitution and Texas Constitution Article 1 Sec. 9, to be free from arrest without

a warrant base upon probable cause, supported by oath or affirmation, and particularly describing

the place to be searched, and the persons or things to be seized. C.C.P Chapter 14 Arrest Without

Warrant cannot be constitutionally applied to effect a warrantless arrest in a place, my car, that I

was allowed by law to be.


                                 Failure to arraign

C.C.P Art. 26.01 requires arraignment in all felony cases. As of the date of this Petition, I have

yet to be arraigned. There was an appearance, Article 15.17 hearing, before Magistrate Robin

Ramsay allegedly on April 13, 2017, the date of the arrest, but I have not been arraigned on the

charge of unlawfully carrying a firearm or given a plea.


                       No Judicial Determination of Probable Cause

       As of May 9, 2018, more that one year after the arrest on April 13, 2017, I have not been

afforded a right to a judicial determination of probable cause hearing. I was arrested without a

warrant, appeared for an Article 15.17 hearing, but before the Article 15.17 hearing or at anytime



                                            Page 9 of 22
thereafter, I have never appeared for a probable cause determination hearing. Probable cause has

not been determined prompt or otherwise, which is a denial of my right to due process of law.

County of Riverside v. McLaughlin


                         Indictment failed to charge an offense

       The indictment alleges that Quincy Blakely did “intentionally and knowingly carry on or

about a handgun on a premises licenses or issued a permit by the State of Texas for the sale of

alcoholic beverages, and defendant was not on defendant’s own premises or premises under the

defendants control, and the defendant was not inside of or directly en route to a motor

vehicle……………

       The indictment is defective as convenience store I walked out does not have a license

issued by the State of Texas for the sale of Alcoholic Beverages, the State of Texas does not

regulate alcohol.


       Indictment does not explain any events that led up to me, Quincy Blakely allegedly

intentionally and knowingly carry on or about a handgun on the premises of a convenience store

that sells alcoholic beverages, nor does it allege with reasonable certainty the act or acts

relied on to constitute the culpable mental states of knowingly and intentionally. This

information is essential to fair notice of the charges against I must defend.


       Texas law guarantees an accused the right to have an indictment present fair notice of the

charges against him. Article I, Section 10, of the Texas Constitution provides that, “[i]n all

criminal prosecutions the accused…shall have the right to demand the nature and cause of the

accusation against him, and to have a copy thereof.” Additionally, Articles 21.04 and 21.11 of

the Texas Code of Criminal Procedure require that an indictment must contain “that degree of

certainty that will give the defendant notice of the particular offense with which he is charged”

and “enable the accused to plead the judgment that may be given upon it in bar of any



                                            Page 10 of 22
prosecution for the same offense.” Tex. Code Crim. Proc. Ann. arts. 21.04, 21.11 (Vernon

1989).

         Indictment No F172106-211 does not allege each element of the offense of unlawfully

carrying a firearm, which is intentionally and knowingly. There is no listing in detail the specific

acts relied upon that me walking into a convenience store and getting into my car, I knowingly or

intentionally committed the offense of unlawfully carrying a firearm.



         The en banc Texas Court of Criminal Appeals has recognized that the requirement that

indictments give adequate notice implicates “fundamental notions of fairness.” Drumm v. State,

560 S.W.2d 944, 946 (Tex.Crim.App. 1977) (en banc). Accordingly, “[t]he accused is not

required to anticipate any and all variant facts the state might hypothetically seek to establish.”

Id. at 947.


         The indictment must allege on its face the facts necessary (1) to show that the offense

was committed, (2) to bar a subsequent prosecution for the same offense, and (3) to give the

defendant notice of precisely what he is charged with. See: Sassano v. State, 163 Tex.Cr.R. 345,

291 S.W.2d 323. Indictment number F172106-211 alleged on it’s face, acts contrary to what the

officer affidavit allege, which was I, Quincy Blakely was not en reoute to my car, when in fact

the officer affidavit stated plainly that I was en route to my car, then was inside of my car.


         Texas law also clearly requires that the notice of the charges must come from the face of

the indictment alone. Riney v. State, 28 S.W.3d 561, 565 (Tex.Crim.App. 2000); Miller v. State,

909 S.W.2d 586, 591 (Tex.App.-Austin, 1995); Voelkel v. State, 501 S.W.2d 313, 315

(Tex.Crim.App.1973); See, e.g., Benoit v. State, 561 S.W.2d 810,813 (Tex.Crim.App. 1977). It

is, of course, not sufficient to argue that the accused knew with what offense he was charged;

rather, the inquiry must be whether the face of the indictment furnished that information in plain

and intelligible language. Miller at 591; Benoit at 813; Riney at 565. Moreover, it is improper to



                                            Page 11 of 22
look to the record of the case in order to determine whether the charging instrument constitutes

adequate notice. Adams v. State, 707 S.W.2d 900,901 (Tex.Crim.App. 1986), citing Bonner v.

State, 640 S.W.2d 601 (Tex.Crim.App.1982)



                               Jurisdiction of the Trial Court

Under the "fundamental defect" doctrine, the Court has ruled that every essential element of the

Penal Code offense being alleged must be stated in the written charges with precision, in terms

drawn from the Penal Code itself and from the cases interpreting the code ... in order for the trial

court even to have jurisdiction to hear the case. Studer v. State 799 S.W.2d 263 (1990)




                                                      Respectfully submitted:
                                                      /s/ Quincy Blakely
                                                      2701 Little Elm Parkway #100-551
                                                      Little Elm, Texas
                                                      quincyblakely@gmail.com




                                           Page 12 of 22
APPENDIX




    Page 13 of 22
EXHIBIT A




   Page 14 of 22
EXHIBIT B




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                           PRAYER FOR RELIEF

For the above reasons, I, Quincy Blakely respectfully prays that this Court grant

this Petition, order briefing and oral argument and decide the issue and advise the

Court of Appeals concerning the properly applicable law in Texas and for any

further relief to which he may be entitled at law, in equity and under this Court’s

supervisory power.

                                               Respectfully submitted:
                                               /s/ Quincy Blakely
                                               2701 Little Elm Parkway #100-551
                                               Little Elm, Texas
                                               quincyblakely@gmail.com


                     CERTIFICATE OF SERVICE

I hereby certify that a copy of the above Petitioner’s Petition for Discretionary

Review has been sent via E-file.Texas.gov, as registered participants, on this the

29th day of May 2018 to the following: Paul Johnson District Attorney.

                     CERTIFICATE OF COMPLIANCE

I hereby certify that this document complies with the typeface requirements of Tex.

R. App. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes and contains 2544 words.

This document does comply with the word-count limitations of Tex. R. App. P.

9.4(i) (3).



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