                  PD-1224-15                                                        RECEIVED IN
                                                                               COURT OF CRIMINAL APPEAL
                                 CAUSE     MO. 67,789-E                               OCT 06 2915

 THE    STATE    DF   TEXAS                           §

                                                                        ronm
 V.                                                   §                              COUNTY,     TEXAS

MICHAEL BAY KENNEDY
                                                      §                108th    JUDICIAL DISTRICT
                  Defendant.
                                                            (HURT OF APPEALS SEVENTH DISHtlCTof TEXAS.
                                                            Ararillo,Texas.

                         REQUEST FOR APPOINTMENT OF COUNSEL'

             PURSUANT TO       ARTICLE 38.35,             CODE OF    CRIMINAL PROCEDURE




 TO    THE   HONORABLE     JUDGE      OF   SAID   COURT:

         COMES    NOW Defendant       MKBAEL EAY KENNEDY                            , T.D.C.D.   NO.
  1968578              , and requests appointment of counsel to assist Defendant in

 obtaining an Order for Forensic Analysis from the Court, pursuant to Article
 3B.35(b)(1)(2)(3), CODE OF CRIMINAL PROCEDURE .Sec . (a) (4)"forensic analysis,
 means a ballistic or other expert examination or test preformad an physiral(EyiDENCE)
        Defendant wishes to submit a Motion pursuant to Chapter 38 requesting
 Forensic Analysis and Testing, and Texas Government Code §411.0205 and Defendant
 is indigent. An Affidavit of Indigency is attached and incorporated hereto as
 EXHIBIT "1". ^im, FILED IN
                   riLLU m
                 COURT OF CRIMINAL APPEALS
                          OCT OC 2G^5                               Respectfully submitted,


                       Abel Acosta, Clerk
                                                                  Signature of Defendant Pro Se        /
                                                                  T.D.C.ZIJ     1968578
                                                                  Stevenson Unit
                                                                  1525 FM 766
                                                                    Cuero, Texas 77954
                                                                    (361) 275-2075




                                                  m



 Request for Appointment of Counsel
 Pro Se, Self-Representing Litigant
                               CAUSE NO. ^7. 7,1%-£


THE   STATE     OF TEXAS                         §                      IN   THE   DISTRICT OF

V.                                               §             POTTER          COUNTY, TEXAS

MICHAEL RAY KENNEDY                              §             108th      JUDICIAL' DISTRICT



                        ORDER REGARDING APPOINTMENT OF COUNSEL1



      On this    -•-•      day of — r '--•'^•K       , 2015, Defendant's Request for Appoint
ment of Counsel, together with Defendant's Declaration of Inability to Pay Cost,
was presented and heard by the Court.

      IT IS ORDERED,          ADJUDGED,      AND DECREED          that the request should be:

                              GRANTED                                                 DENIED.




      IT IS FURTHER ORDERED,               ADJUDGED,          AND DECREED by the Court that
                                       ,   is appointed to represent Defendant on this
Motion For Forensic Analysis of Physical Evidence in the above styled and
numbered cause .




      SIGNED AND ENTERED on this the                             day of

in the year 2015.




                                                                 JUDGE    PRESIDING




Order Regarding Appointment of Counsel
Pro Se, Self-Representing Litigant                   ,.'/^\
                  EXHIBIT (1)


                                 AFFIDAVIT    OF   INDIGENCY
                                 Texas Rules of Civil Procedure,
                                 Title 6, Chapter 132, Texas Civil
                                 Practice and Remedies Code.




     NOW RESPECTFULLY comes Michael Ray Kennedy '                       , t.D.C. J.# 1968578
presently at the Clarence N. Stevenson Unit in Cuero (Deklitt County) Texas,
77954-6300. I declare that I am unable to pay the Court costs in this request

to the Court, and requests Leave of the Court to proceed - in forma pauperis -
in this accompanying request and action while showing the Court the following:

     (1)     I am presently incarcerated in the Texas Department of Criminal
             Justice   - Correctional Institution Division where I. am not
             permitted to handle money;         and
     (2)     I have no source of income or spousal income; and
     (3)     I currently have $ 30.00              dollars credited to me in
             the T.D.C.J. Inmate Trust Fund;            and

     (4)     During my incarceration in the Texas Department of Criminal
             Justice - Correctional Institution Division, I have approx
             imately $ 25.00           dollars per month as gifts from relatives
             and friends; and

     (5)     I neither own nor have an interest in any realty, stocks, bonds
             or bank accounts, and, I receive no interest or dividend income
             from any source; and
     (6)     I have      0         dependants; and
     (7)     I have total debts of approximately $                            dollars; and
     (B)     I owe $         0            in restitution; and
     (9)     My monthly expenses in hygiene and medical expenses are
             approximately $          0               dollars.
     Ij Michael Ray kennady                           t T. D. C. J. #   1968578         r       t
being presently incarcerated at the Stevenson Unit, located at 1525 FM 766,
Cuero, Texas, 77954-6300, (361) 275-2075, declare and verify under penalty of
perjury that the foregoing statements in this Affidavit of Indigence are true
and correct.

               EXECUTED on this %£              day of Septaiber             2015.


                                                              Signature of Declararrc, Pro Se   /
NOTE: Amendments to the Texas Civil Practice & Remedies Code §132.001, now allows any party to use
      an Unsworn Declaration instead of an Affidavit or Verification (2012).




Affidavit of Indigence
Pro Se, Self-Reprenting Litigant
                                               Certified #.


                                  CAUSE NUMBER 67,798-E


THE STATE OF TEXAS                                In The 108th District Court
                                         §        In and for; Potter County,Tx
        Vs                               §                    And
                                                 Court of Appeals Seventh Dis
Michael Ray Kennedy                      §       of Texas. Potter County,Tx
                                         §



                         MOTION PURSUANT TO CHAPTER 38

                    REQUESTING FORENSIC ANALYSIS & TESTING


    To The Honorable Judge of Said Court;
                    Comes Now Michael Ray Kennedy, Defendant Pro-Se and Respectfully
Moves this Honorable Court for a ruling on his Motion for Forensic Analysis And
Testing of Ballistic Evidence in the Above Styled and Numbered Cause,In Support
The Defendant will Show This Court as Follows:

                                         I
        Defendant is Submitting this Motion Pursuant to Article 38.35 Code of
Criminal Procedure: Rule 401 [Relevant Evidence]. Texas Rules of Evidence and
Texas Government Code § 411.0205 In the Interest of Justice and Fairness and
Not to Vex The Court.



                                        II
       That Such Admissible Evidence was Not Previously Tested ; Reporter Record
Vol.2 Page 158. See; RR. V.2 PG 158. Officer Michael wheeler Questioned By The
Attorney: Martinez in 4-5-6
Q   Officer, Did You send that slug to Any Kind of LAB for Analysis ?
A   NO, I Didn't.
RR V.2 PG 171 LN 1-2

Q   And of Course You're Not An EXPERT in BALLISTICS, Are You ?
A   NO, Sir

Attached are RR. V.2 PG 158-171.    The Officer Testified to a Statement of the
Size of the Caliber of a Weapon and was Questioned of the Exhibits Number 6 of
Glass, This Slugg Allegedly was the Cause of the Window being Shattered. Exhibit
18 Is the bullet round collected from the seat,if this slugg shattered the window,
it would have glass fragments in the bullet. This Officer is NOT OULIFIED to Test
ify on Ballistics, by his Own Word's. RR. V.2 PG 171
Q   You'r Not a Expert in Ballistics are you ?
A    NO, SIR
Tex.R.Evid.702 Kelly V. State 824. S.W.2d 568(Tex.Crim.App.1992). This is The
Threshold Regaurding the Admission of Expert Testimony,Whether that testimony will
Help the Trier of fact Understand the Evidence or Determine a fact in Issue. And
If the Failure to Conduct previous testing is excused,means Individual samples of
Ballistic Material Having Discrete and Independent Probative Value for Purposes of
the particular issues arising from trial would not be allowed to clear the confusion
of the issue.
IE; An Expert is required or Texas Rule of Evidence 104(a)&(c) & Rule 702, Will
be forever Lost. None of the Criteria was Proven. There was No Gate Keeper
Hearing on Qualifications. Testimony was of a   380 Bullet and what if the Bullet
was a 22. Slugg or a 25 Bullet or a 44 or a 45 Bullet.
Further testing is so Advanced Now adays, A Expert Can [GIVE AN EXZACT TIME FRAME
THIS BULLET WAS FIRED],(Corrosion) Another Theory If The Bullet was Fired and
there was Moisture or rain on the window, The Bullet would have samples on the
Slugg. Let's Just say; The Incident Occured on a Hot and Sunny Day and a Expert
Shows this Slugg was Not Fired when the Officer or the State has CLAIMED, Then
it is a Miscarrige of Justice. Michael Ray Kennedy [Did Not Fire,No Weapon].
The Probative Force of Evidence Sought by Testing is Not so Weak that it Would
Raise only Surmise or Suspicion of Existence of Fact sought to be Established.
Defendant has made a reasonable Inquiry and Believes This Motion has Proper Basis
in fact, In law and is Not made for Improper Purpose.


         Wherefore, All Considered, Defendant Prays that the Honorable

Court Grant Defendants Motion and Enters an Order for testing and
All Things which Defendant is Entitled.


                                       RESPECTFULLY SUBMITTED ON THIS bW Day
                                       of St$Twr[}dL ,2015.




                                           Signature of Defendant,Pro^Se



MOTION FOR FORENSIC TESTING

Pro-Se Self Litigant Representing.




                                     page 2
                                                                                       e1;5Sw



 1                            MR.   HORN:     We'll   pass the witness.

 2                                        CROSS-EXAMINATION

 3    BY   MR.      MARTINEZ:


 4.        . Q.       Officer.did you send that slug to any kind of.

?5    1ab for analysi s? *

 6            A.      No, I didn't.,
 7            Q.      So what's the significance of the slug in the

 8    seat;        when did that happen?'

 9          A.        It's    --    Ms.    Monnet   told   me   that   it   --   her

10    window was damaged from the subject.                        And based on the

11    text message that she had received,                       I figured -- I

12    determined it to be a part of the investigation,                             a part

13    of   the      case.

14          Q.        Well,    did you check out the phone number?

15          A.        No,    sir,    I didn't.

16            Q.      Did you get a warrant to find out whose phone

17    number        that    was?

18          A.        No,    I didn't.

19          Q.        Did you know about Ms.               Monnet's prior criminal

20    hi story?

21          A.        No.

22          Q.        Did you know about her criminal                  history

23    afterwards?

24          A.        No.

25                            MR. MARTINEZ:         Would you put State's
                                                                                        171




  1   to be glass outside.                 And,   of course,           you're not an

  2   expert in ballistics,                are you?

  3          A.     No,    sir.

  4          Q.     Okay.         But just from your training and

  5   experience in investigation,                     is the glass being inside

  6   the vehicle consistent with someone shooting through

  7   that   window       into     the    car?

  8          A.     The glass inside the vehicle is a good

  9   indication that the damage was done from the outside of

10    the car,      inward.

11           Q.     Okay.         And just from your assessment of this

12    scene,      is it your conclusion that the bullet came from

13    this   window and           not    the   front    of   the   car?

14           A.     Yes,    it came -- my belief,                  it came from the

_15   passenger's side front window.

16           Q.     Okay.

17                          MR.    HORN:       We'll     pass the witness.

18                          THE COURT:           All    right.      Anything further,

19    Counsel ?

20                         You may -- oh.

21                          MR.    MARTINEZ:           Excuse    me.

22


23                                      RECROSS-EXAMINATION

24    BY   MR.    MARTINEZ

25           Q.    You didn't -- you di dn 't ^:-;-v. I .mean , as far as
