             IH1&IH
     NO.    PD-1486-14
                                           ORIGINAL
            IN THE


COURT OF CRIMINAL APPEALS

           OF TEXAS




  ERNEST BENL MCINTYRE
  Petitioner, Appellant                   Oi


                                        COURT OF CRiiM APPEALS
              V.
                                            M 01 2015
   THE   STATE OF TEXAS
           Appellee                     Abel Acosta, Clark




                                            FILED IN
                                    COURT OF CRIMINAL APPEALS

                                          NAY 01 2015

                                        Abel Acosta, Clerk


      FIRST AMENDED

  MOTION FOR REHEARING




                   ERNEST BENL MCINTYRE
                   202 Avenue F, Apt.#2
                   Moody, Tx. 76557
                   (254) 853-9146
                   PETITIONER, APPELLANT PRO SE
                            NO.   PD-1486-14


ERNEST BENL MCINTYRE                §       IN THE

                                    §
V.                                  §       COURT OF CRIMINAL APPEALS

                                    §
THE STATE OF TEXAS                  §       OF TEX



               FIRST AMENDED MOTION FOR REHEARING



TO THE HONORABLE JUSTICES   OF THE COURT:



     COMES now, Ernest Benl Mclntyre, Appellant, Movant pro se,

and files this First;Amended Motion for Rehearing contending that

said motion is grounded only on substantial intervening circumstances

which requires this Court's supervisory authority to protect Movant's
right to counsel on'appeal, and in support would show:

                        1    -    CASE HISTORY

     Movant pleaded guilty to possession of child pornography. See

TEXAS PENAL CODE § 43.26. After a non-jury punishment hearing, the

trial court sentenced Movant to 9 years confinement. (RR.5,p.64).
Movant's court-appointed appellate attorney filed a motion to

withdraw supported by an ANDERS brief on December 4, 2012, concluding
that an appeal would be frivolous and without merit. SEE ANDERS V.

CALIFORNIA, 386 U.S. 738 (1967). Movant filed a pro se brief on
May 22, 2013, and a panel of the Third District Court of Appeals
consisting of Chief Justice Jones, Justices Rose and Goodwin, held
that there was no reversible error in the trial court's judgment




                                     1.
of conviction and granted appellate counsel's motion to withdraw.

SEE MEMORANDUM OPINION, No. 03-12-00508-CR. Movant then filed a

motion for rehearing en banc on August 19, 2014, which was overruled

on October 10, 2014. A petition for discretionary review was then

filed in this Court by Movant on January 16, 2015, which was refused

on February 25, 2015. Rehearing was due in this Court on or before

April 13, 2015, but was not received by the clerk until April 17,

2015, due to postal error; said motion was post-dated April 9, 2015.

This first amended motion for rehearing follows to include Supreme

Court caselaw supporting grounds for rehearing.that was ommitted

from the original motion for rehearing due to oversight.

                    2   -   GROUNDS   FOR REHEARING


     In it's memorandum opinion, the court of appeals erroneously
concluded that the State's withholding of 47 crime scene photos

until AFTER Movant had pleaded guilty did not effect the voluntariness

of Movant's guilty plea, and that therefore, there were no arguable
grounds to be advanced on appeal. SEE MEMORANDUM OPINION pg. 2, No.

03-12-00508-CR, Third District. To support it's conclusion, the
court of appeals relied in part on Movant's confession that was
given during the hearing on punishment six weeks after seeing the
photos of the suspect computer and after the photos of the computer

were admitted into evidence; even placing emphasis on Movant's
confession in bold letters, and because Movant failed to show that
the photos were favorable to him. The court of appeals' conclusion




                                      2.
on this point is misplaced. The relevant facts supporting rehearing

are   set   out as   follows:

      Movant established in his pro se appeal brief to the court of

appeals and in his pro se PDR to this Court that 47 crime scene

photos were withheld by the State until after Movant had pleaded

guilty. (RR.4,p.4-5). Whether there are any arguable grounds for
appeal in this case would turn on the materiality of said photos

under BRADY. SEE BRADY V. MARYLAND, 373 U.S. 83 (1963). As discussed
in Movant's PDR pg. 10-12, the relevant photos show (1) the suspect
computer with both side casings removed in which it appears that

the computer was at the time in a state of assembly and testing,

and; (2) what Movant incorrectly argued was the suspect monitor
turned on and operating while displaying dates of April 28, 2003,

which Movant incorrectly believed to be the dates the contraband

was loaded into the suspect computer. A closer inspection, however,

reveals that these photos were MUCH more significant and MUCH more

material to Movant's guilty plea than previously argued.
       In the appendix to this motion for rehearing, Movant has attached
copies of the relevant photos that were withheld by the State and

later admitted into evidence without objection and identified as

State's 2. (RR.5,p.l6). All except one of the attached photos were
attached to Movant's pro se beief to the court of appeals; all of

which were a part of the record for the court of appeals' review
under ANDERS. To confirm for this Court that Movant is discussing
the correct computer containing the contraband,   the inventory sheet

describes the suspect computer as Item #3, computer with covers

off, which was entered into evidence and identified as State's 5.
(RR.5,p.l7). The record further identifies the suspect computer as
custom built, (RR.5,p.22), and contained 3 harddrives, and only one
of those harddrives contained contraband. (RR.5,p.31). In photos
numbered 1 & 2, the Court can see, inter alia, a computer monitor

with one computer sitting on each side. The suspect computer is

located on the left with a view of the right side casing removed

and two electrical cords draped over the top of the computer; one

thin cord and one thick cord. Photos number 3, shows a close-up of

the left side of the suspect computer with the left side casing

also removed, and one of the three harddrives hanging out the side.

This photo, however, shows a much more important fact. Just above

the hanging harddrive, and a little to the right, looking into the
rear interior of the suspect computer, there are 4 empty slots.

These slots are supposed to have up to 4 interface cards in them

which the computer cannot operate without. Although the record does

not identify the parts that are missing from the computer, this

photo clearly shows said computer in a state of assembly and that
said computer was not even functional. Photo number 5, shows the
suspect computer while being pulled out be law enforcement exposing

a rear view of said computer. The small wire pluged in to the rear

is a mouse. The larger plug is for the monitor, and a power cord




                               4.
can vaguely be seen at the bottom. The internet connect is located

between the mouse and monitor connections. Note that this computer

is not connected to the internet. Although the record does not

contain testimony identifying these connections, this photo shows

the two componant cords draped over the top of the computer and

obviously not in use. To support this fact, photos numbered 3,5,

6,7,9, & 10, all show the monitor turned on and operating. Obviously,

according to the photos discussed, whatever, is being displayed on
the monitor is not coming from the suspect computer which contained

the contraband. Additionally, photo number 6, shows law enforcement

pulling out a Server unit. The first plug that is closest to the
left on the rear of the Server, is an internet connection. The

second is a mouse, and the third, which is a larger plug, is for a
computer. If the Court will look closely on the rear of the Server
and on each side of the computer plug, you will see that there are

two additional places available in which to make additional computer

connections. These are Input/Output Connectors. Although there is
no testimony in the record identifying these connections, photo
number 6, clearly shows that there is only one main componant, (i.e.
computer), connected to the Server. These photos show that the
suspect computer was not connected for use or operational.
     Photos numbered 12,13,14,15,17,& 18, all show a mass array of
computer parts and an additional computer. Movant requests this
Court to take judicial notice of the photos in the appendix to this
motion for rehearing. The record further shows that a very large

number of computer harddrives and storage devices were seized as

a result of a search warrant, as well as a few additional computers.

SEE STATE'S 5, RETURN INVENTORY & SEIZURE REPORT. Testimony also

described Movant's "shed" as a computer workshop with various

computers and conputer parts. (RR.5,p^l5). The suspect computer was
recovered from Movant's workshop. (RR.5,p.36). Tesimony established
that Movant is a computer network engineer and computer technician

with a degree in computer science. (RR.5,p.46). Movant argued to
the court of appeals and in his PDR that the relevant photos withheld

by the State and discussed in further detail heretofore, would have

supported an affirmative defense that Movant custom built the

suspect computer not knowing that he was installing contraband.

Movant had the right to the presumption of innocence and the right

to.put the State to it's burden of proof before a criminal conviction,
SEE MILES V. STATE, 204 SW 3d 822,825 (Tex.Crim.App.2006)(and cases
cited therein). As previously discussed, the court of appeals

emphasised Movant's confession during punishment. SEE MEMORANDUM
OPINION, pg.2. However, in EX PARTE TULEY, this Court stated:

          "The guilty plea process is not perfect. But guilty
     pleas allow the parties to avoid the uncertainties of
     litigation. The decision to plead guilty..., may be
     influenced by factors that have nothing to do with the
     defendant's guilt. The inability to disprove the State's
     case, the inability to afford counsel, the inability to
     afford bail, family obligations,   the need to return to
     work, and other considerations may influence a defendant's
     choice to plead guilty or go to trial."
SEE EX PARTE TULEY, 109 SW 3d 388,393 (Tex.Crim.App.2002)(see also
footnote 2, for additional reasons a defendant may plead guilty).
In this case, the record is silent as to why Movant entered a

plea of guilty, although the record does show that defense counsel

did make a plea to the trial court for probation. (RR.5,p.59-61).
But obviously, at some point, there was a discussion between
Movant and his attorney that resulted in a guilty plea. In any

other circumstances, it would be inappropriate for a reviewing

court to infringe upon counsel's actions which would otherwise be
considered sound trial strategy. SEE EX PARTE KUNKLE, 852 SW 2d

499,505 (Tex.Crim.App.l993)(A fair assessment of counsel's performance
requires that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances, and to evaluate the
conduct from counsel's perspctive at the time... the defendant must
overcome the presumption that, under the circumstances, the challenged
action 'might be considered sound trial strategy'). Now, however,
the reviewing court has done exactly that. (EMPHASIS ADDED). In
UNITED STATES V. BAGLEY, the Supreme Court stated:

          "The government notes that an incomplete response to
     a specific request not only deprives the defense of certain
     evidence, but also has the effect of representing to the
     defense that the evidence does not exist.   In reliance on
     this misleading representation, the defense might abandon
     lines of independant investigation, defenses, or trial
     strategies that it otherwise would have pursued.
          WE AGREE THAT THE PROSECUTER'S FAILURE TO RESPOND
     FULLY TO A BRADY REQUEST MAY IMPAIR THE ADVERSARY PROCESS
     IN THIS MANNER. And the more specifically the defense
     requests certain evidence, thus putting the prosecutor
     on notice of its value,   the more reasonable it is for
     the defense to assume from the non-disclosure that   the
     evidence does not exist, and to make pre-trial and trial
     decisions on the bases of this assumption. This possibility
     of impairment does not necessitate a different standard of
     materiality, however, for under the Strickland formulation
     the reviewing court may consider directly any adverse
     effect that the prosecutor's failure to respond might
     have had on the preparation or presentation of the defendant's
     case. The reviewing court should assess the possibility:that
     such effect might have occurred in light of the totality
     of the circumstances and WITH AN AWARENESS OF THE DIFFICULTY
     OF RECONSTRUCTING IN A POST-TRIAL PROCEEDING THE COURSE
     THAT THE DEFENSE AND THE TRIAL WOULD HAVE TAKEN HAD THE
     DEFENSE NOT BEEN MISLED BY THE PROSECUTOR'S INCOMPLETE
     RESPONSE."

SEE UNITED STATES V. BAGLEY, 473 U.S. 667,682-83, 105 S.CT. 3375,
3384"" (1985). It cannot be ASSUMED by the reviewing court that any

advice to plead guilty that Movant received by his attorney was
not affected by the State's withholding of said crime scene photos
when considering the totality of the circumstances, which, obviously.

denied Movant due process and his right to put the State to its

burden of proof. Movant requested this material. (CR.p.24).
     In light of the new relevant facts as to the materiality of
the crime scene photos under BRADY, and the Supreme Court's
analysis under BAGLEY, Movant requests this Court to grant rehearing
and consider these new points along with his original PDR and pro

se brief to the court of appeals. It should be remembered that the

focal point of these appellate proceedings is to determine whether
Movant is entitled to court appointed counsel on appeal under ANDERS,
                             PRAYER


     For the foregoing reasons, Movant prays that this Court grant

rehearing.


                                    Respectfully Submitted,



                                    Ernest Benl Mclntyre       *
                                    202 Avenue F, Apt.#2
                                    Moody, Tx. 76557
                                    (254) 853-9146
                                    APPELLANT, MOVANT PRO SE




                               9.
                        CERTIFICATE OF   SERVICE

       This is to certify that a true copy of the foregoing was

served on each party as indicated below on this 24th day of

April, 2015, via U.S. mail, postage pre-paid.


State Prosecuting Attorney               Bob Odom
P.O.   Box   12405                       Crim.Dist.Attorney
Austin, Tx. 78711                        P.O.   Box 540
                                         Belton, Tx. 76513


Tim Copeland
Attorney at Law
930 S. Bell Blvd.,Ste.408
Cedar Park, Tx. 78613
APPELLATE COUNSEL FOR MOVANT
(WITHDRAWN)



                                     Ernest Benl Mclntyre           f
                                     Appellant, Movant pro se


                             CERTIFICATION

       This is to certify that the foregoing motion for rehearing
is grounded only on substantial intervening circumstances and is
made in good faith and not for the purpose of delay.



                                    Ernest Benl Mclntyre
                                    Appellant, Movant pro se
           APPENDIX




APPENDIX




           APPENDIX
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