35 55(0‘//

MARCH 16, 2015

KENNEIH RAY BRowN #334618
JAMES v. ALLRED UNIT
2101 FM 369 N

lowA PARK, Tx 76367

cLERK oFFIcE
cOURT 0F cRIMINAL APPEALS

P.o. Box 12308, cAPHOL STATION
AUSHN, "D< 78711'

Re: TRIAL COURT NUMBER: 348455-F EX PARTE KENNETH RAY BROWN
WRIT NUMBER: WR-33,336-11 `

cLERK, ,
ENCLOSED 13 AN ENUMERATED MUHON To BE FILE AND CoNSiDER~ UNDER THE: ABOVE sTYLED

AND NUMBERED _WRIT.

 

M©'HON DE§KG\“\“§SD KENNETH RAY BROwN
DATIE: . _
BYZ Xé:_'_ *"
RECE|_VED |N
COURT OF CR|M|NAL APPEALS
MAR 24 2015
CCFILED: . . AbesAcosva,ceerk

ONE OF ONE PAGE

IN THE

coURT oF cleNAL APPEAls

§
Ex PARTE ., 1

§ No. 348455-1?
KENNEJ:H RAY BRowN, ` '

Movant.

` (/.`/>

ENUMERATED MOTION

This motion is submitted PRO SE by KENNETH RAY BRGWN herein called'"BROWN or
MOVANT" and this motion is presented pursuant to the Rules of lexas Courts.

This enumerated`motion is directly relating to the alleged asserted proceedings
v and merits (law) presented in the current 11.07 writ of habeas corpus application
filed under the above styled and numbered. Which 11.07 application has been
recommended for dismissal by the Judge Presiding, 248th District Court of Harris
County7 Texas on the day of February 2, 2015.

The current submitted ll.O7 application brought forth the uneguivocal rule
_making it unconstitutional to try a person for a felony in a State Court unless
that person had a lawyer or had validly waived oneo -However, in the current 11,07
application therewith the moRANDUM -BRIEF IN sUPPoRT and EXHIBITS or THE oFFIciAi
C§URT §§ RDS. Brown allegeL and asserted'such unequivocal rule of being prevented
and/or deprived counsel representation at any critical §§ag§_that affects substantial
rights of the criminal process is clearly the exceptional to all state's procedural
bar from being applied in order to dismiss any writ. Such exceptional includes the
procedural bar of TEXAS CODE OF CRI&INAL PROCEDURE ARTICLE 11,07 § é(a) where the
recommendation for dismiss of Brown's current 11#07 has been relied upon and applied.

A~ Therefore, this enumerated motion is to point-out specific facts and circumstances

/

1 ‘ \

thereto the proceedings and merits where Brown as an indigent defendant/appellant

 

* had been prevented and/or deprived right to appointment of counsel occurred for
this HONORABLE COURT to consider in GRANTING the current 11 07 application pursuant
to the VOlD JUDGEMENT EXCEPTION TO THE GENERAL RULE.

However, in this enumerated motion as to the reason(s) for this motion is to
determine whether the DISTRICT ATTORNEY and PRESIDING dUDGE both of Harris County,
Texas intentionally or inadvertently overlooked, misplaced, disregarded, or decided.
to give no due respect to State and Federal law that recognizes and what constitutes
a VOlD JUDGMENT, Which precise void judgment, as presented in the current 11.07 is
the ADJUDICATION JUDGMENT UNDER CAUSE NUMBER 10-83~095-CRq Thus, as to the Court’s
consideration for granting the relief sought, it must be determine whether Brown's
current 11 07 application claims meets the requirements thereto the exception, or
immune, or exempt from the provisions of the state' s independent general rule of

11,07 § A(a). SEE MEMORANDUM BRIEF ld» at 2-7.

 

I. PROCEEDINGS TO GRANTED STATE'S PETITION`FOR DISCRETIONARY REVIEW

Movant moves and urges this HONORABLE COURT OF CRIMINAL APPEALS to take the
responsibility [where District Attorney and Presiding Judge failed] thereto examining
the submitted EXHIBITS of the OFFICIAL COURT RECORDS attached to the memorandum v
brief, or the official court records that District Attorney and Presiding Judge
relied upon. See State's Original Answer Id. at 2. l l

However, Brown asks the Court to examine (exhibits) the proceedings following,

(1) where the State's Petition for Discretionary Review (PDR)_was granted, (2) where
the Court in its OPINION of the granted-State's PDR decided to apply a NEW STATE
RULE OF LAW concerning HARMLESS ERRORS, (3) where the Court decided to remagd"
Brown's successful reversal gf_the trial court's conviction for reconsideration,

and ordered the Tenth-Court of Appeals to apply the NEW STATE RULE OF HARMLESS ERROR

STANDARDS under ALMANZA V, STATE9686 S.W.Zd 157(TEX.CRIM.APP.1985) to Brown's
contention that originally reversed the conviction§ and (4)_Thus, the records must_
`be examine where the District Attorney and Presiding Judge failed to acknowledge,

or consider that the NEW STATE RULE under ALMANZA came into existence gl_mgg§h§
§§Ee£ Brown's APPELLANT'S BRIEF filed on direct appeal; and rule came into existence

several months after the initial reversal of trial court's conviction by the Tenth

 

Of Appealsq SEE ALL EXHIBIIS AND MEMORANDUM BRIEF ld. at 7-11 and 14~18.

Il. MERITS (LAW) TO THE ABOVE SIAEED PROCEEDINGS

 

Movant moves and urges this HONORABLE COURT OF CRIMINAL APPEALS to consider the_
above facts and circumstances to the stated proceedings as to the merits (law) where
District Attorney and Presiding Judge failed to examine thoroughly the Submitted
EXHIBITS of court records and/or disregarded.violations of constitutional rights-that
rcontributed (inception) and/or violations that constitutes a VOID JUDGMENT as pres
_sented in ground two of the 11.07 application as to (1) §Q_§QIL§§ were sent to the
parties and state attorney that a PDR had been granted pursuant to T,R`A P. 69.4(b),
(2) §§ GOUNSEL APPOINTED for Brown to advise him of the consequences thereto the
granted PDR. Which granted PDR reinstated the conviction and innocence,_SEE`TEX.
.'CODE CRIM. PROC. ANNn art. 1.051(d)(2), and (3) §§ §BIEE`RESUBMITTEB on Brown's
_behalf nor 8tate as_to complying with T.R.A?P, 70 ij 70.2 and 70.3¢ Also see the
MIMORANDUM BRIEF ld. at 7-11 and 18- 21. g

III. PROCEEDINGS FULLOWING REMAND BY COURT OF CRIMINAL APPEALS

 

Movant moves and urges this HONORABLE COURT OF CRIMINAL APPEALS to take the `

responsibility [where the District Attorney and Presiding Judge failed] thereto
examining the submitted EXHIBITS of the official court records attached to the
memorandum brief. Brown asks the Court to examine the proceedings following (1)where

. the court of criminal appeals decided to remand Brown's successful reversal of the

trial court's conviction for reconsideration, and (2) where the Tenth Court of

 

 

Appeals following remand for reconsideration applied to Brown's contention that'
originally reversed the conviction; the NEW STATE RULE OF LAW FOR HARMLESS ERROR-`

STANDARDS pursunat to ALMANZA. Thereby the Court affirmed the trial court's conviction.

 

IV. MERITS (LAW) TO THE ABOVE STNTED PROCEEDINCS

Movant moves and urges this HONORABLE COURT to consider the above facts and
circumstances to the stated proceedings as to the merits (law) where the District
Attorney and Presiding Judge failed to examine_thgrgughly the submitted EXHIBITS

_of court records and/or disregarded violation of constitutional rights and/or`
violations that constitutes a VOID JUDGMENT as presented in ground three of the
11.07 application as to (1) where following the rema§d by the Court of Criminal
Appeals the direct appeal had now by state law been reinstated to the first level
of the direct appeal. SEE THE MANY RULINGS BY THE COURT OF CRIMINAL APPEALS UNDER
Ex PARTE 10PEZ,763 s.w.2d 427; RoBINsoN v. sTATE,790 s.w.zd 334; williams v-. »~sTATE,
790 S.W.Zd 337; THEUS V. STATE,863 S.W,Zd 489;4JENNINGS V. STATESQO S.W.Zd 809;
GLIVER v. sTAir,S_<)i s.w.2d 651; JEsUs RF_:LcH-BACOT v. sTATE,QSZ vs.w.2d 542.AND
HUFF V. STATE,807 S.W.Zd 325; ALSO SEE MEMORANDUM BRIEF ld. at 11¥14 and.18-24.

And (2) where following Brown's failure to submitted.brief within 30 days following
the remand §§ §§Il§§'were sent to the parties nor the 248th District Court (trial
court) of this failure to submitted brief. SEE T.R»A;P. 38.8(b)(1)(2)(3) and (4)3

and (3) where §Q_COUNSEL APPOINTED for Brown following remand, and where the court
records reflects Tenth Court of Appeals made an argument for the State in order to
apply AlMANZE and affirmed the adjudication judgment under cause number 10-83-095-CR.
sEE TEx".coDE cRiM.PRoc.ANN-. art. 1.051(<1)(1§ and 1.051(¢) and 44.02 which grants
right to appeal the trial court's conviction; ALSO SEE T R.A.P. RULES 38.1(h) and
38.2(a)(1) which requires that the parties advance their argument. Also See

MEMORANDUM BRIEF ld. at 23. ' - ,~-

 

V. QUESTIONS OF lAH'THERETO A VOID JUDGMENT~

Throughout this motion and Brown's current 11.07iapplication, the QUESTIONS OF
LAW clearly are (1) whether counsel should have been appointed for the Appellate
Proceedings that actually decided Brown's fate_as presented in the 11.07 habeas
corpus. See grounds 2,43;~4 and 5. (Z) Whether the failures by State-Courts to
appoint Brown counsel as presented in the habeas corpus ground 6 created a
JURISDICTIONAL bEFECT, and (3) whether the District Attorneyis and Presiding Judge's
recommendation for dismiss of the 11107 habeas corpus pursuant to the provisions
of 11.07 § A(a) is the proper cure for justice, without first addressing the"issues;
pursuant to the VOlD JUDGMENT EXCEPTION TO THE GENERAL RULE? SEE GROUND ONE.

VI. STAIE AND FEDERAL LAW`VIOLATIONS THAT CREATES A.VOID JUDGMENT

This enumerated motion, same as the 11.Q7 application set forth ADVERSARY
JUDIC_TAL PRoctEDINGs that this HoNoRABLE coURT oF GRIMINAL APPEALS long-ago agreadad
with federal law thereto the UNITED STATES CONSTITUTION pursuant to the'SlXTH
AMENDMENT that any proceedings, or adversary judicial proceedings that may result

in punishment by confinement, the indigent defendant/appellant must be afforded

 

appointment of counsel for the defense. SEE GIDEON V. WAINWRIGHT,372 U.S. 335, 83

S.Ct. 792, 9 L.Ed.Zd 799(1963) AND UNITED STATES V. CRONIC,466 U.S. 684, 653, 104

 

s§ct. -2039, 2043 _30 L.En.za 657(1984):, l l

This HONORABLE COURT in its countless rulings have always reversed §_judgment
as to ruling in accordance with FEDERAL LAW pursuant to the SIXTH AMENDMENT and
the UNITED STATES SUPREME COURT'S holdings under §§Q§Q§ and §§Q§;Q_where the records
reflects [AS IN BROWN'S CAUSE] the indigent defendant/appellant was without counsel
at a critical stage of the criminal process that affects substantial rights.

This HONORABLE COURT also have always reversed §_judgment in violations of State

 

f’~\'

law that protects, provides and ensures the indigent defendant/appellant with the

5

provisions Of the SIXTH AMENDMENT'RIGHT TO COUNSEL REPRESENTATION. See State Law

TEXAS CODE OF CRlMlNAL PROCEDURE ARTICLE 1.051(d)(1)(2) and 1.051(c)¢

Vll. VIOLATIONS OF AN ADVERSARY`dUDICIAL PROCEEDINC
WITHIN ITSELF THAT CONSTITUTES A.VOID JUDGMENF

 

 

THIS ENUMERATED MOT_ION, sAME As 1111 11_,07 APPLICATioN coNCERNs PRocEEDIN¢s AND MER11s
(i.Aw) 1HAT wouu) RENDER THE ADJUDICA;FION JlmGMENr UNDER cAUsE NUMBER 10-83-095-CR A'
volD Juncmm'r As 10 (1)` wHERE THE sTATE's PDR wAs GRANIED IN o_RI)E_R»10 APPLY THE_` Nliw
srATs' lAw. oF HAmuEssERRoR.-`sTANDARDs *i>l__msUArzT IOMMDV.'51A11,686 s.wi 2d 157
`(TEx.cRm.APP.1985_). sUcH NEw sTATE law AT\ ms 111411, 1 C.LEARLY wAs A NEw PRocEEDING 1N
rim APPEiiATE _c;oURT. waldi'was INTR0000E 10 BRowN's DIRECI APPEAL 10ch 1HE
GRAN'HNG 0F 1111: sTATE's PDR.' sUcH _ADVERSARY PRocEEDiNG IN 'IHE couRT 0F cRmiNAL
APPEALS cL'EARLY wouLD 1=1\11111_1_~: BRowN 'APPoINn/IENT 0F ooUNsEL,_ 7(2)»11111;&‘. BRowN's CAsE

As 10 1113 succrssFUL DIREcr APPEAL -wAs -R_mANDED. BY ms ooURT' oF cRmINAL APPEALS 1N~
oRDER 10 APPLY ALMANZA PRovISloNs 10 1‘HE'cAsE.` sum ADVERSARY .PRoc_EEDING;As 10
APPLYmG 1313 NEw srATE RuLE 10 BRowN's' cAUSE, CLEARLY ENHTLE HIM 10 APPoINmn¢r OF`
couNsEL 1117 0RDER 10 ADvIsE HIM As 10 FILING BRIEF_ oR 011/it ARGUE oN Hls BEHALF BEFORE
1HE 1111111 ooURT APPLIED 1HE _Ntw 'RULE AND DEPRIVED BRowN QF _Hls LIBERTY.' sEE ALL EXHIBITS
AND ALL GROUND 0F ERRORS PRESENTED liN ms MmoRANDUM.'

§§§

WHEREFORE, PREMISES CONSIDERED, Brown/Movant prays this HONORABLE COURT OF n
CRlMlNAL APPEALS would consider this ENUMERATED MOTION as to all.the pointed out
facts, circumstances therewith state and federal law where all stated herein clearly
constitutes a VOID JUDGMENT. Brown prays this HONORABLE COURT would examine the

OFFlClAL COURT RECORDS to determine whether Brown was prevented, deprived and/or

without the benefit of counsel at all proceeding following the STATE'SqREQUESTED

AND GRANTED PETITIQN'FOR'DISCRETIONARY'REVIEW. Brown prays this HONORABLE COURT

6

would granted the relief sought in the current 11.07 habeas corpus filed under
number 3484551F for reasons the ADJUDlCATlON JUDGMENT under cause number 10-83"095jCR
is-a VOID JUDGMENT for it was rendered in violation(s) of the UNlTED STATES CONST-
0111101\1 sixth AME_NDMENT RIGHT 10 coUNsEL REPREsnmATION. Thar_aby auth ruling any

previous filed 11.07 habeas corpus to the void adjudication judgment also is void.

Respectfully submitted,

 
    

mm 1‘,~=:11-1. PAY_ ' _
JAMES v. ALLRED UN11
2101 FM 369 N

10wA PARI<, 1x 76367

Service has been accomplished by sending a copy of this motion to the following

address:

DISTRICT AITORNEY'OFFICEF
HARRIS COUNTY, TEXAS
1201 FRANKLIN, SUITE 600
HOUSTON, TEXAS.77002 '

_/7% ;/¢Irf§t/t _
SIGNED this §§th day of 1 y, 2015

 

CCFILED:

