                     fZ 17-/5
               NO.   PD-1217-15

 IN THE COURT OF CRIMINAL AFPEALS OF TEXAS              ORIGINAL
               AUSTIN, TEXAS




            NO.   09-14-00301-CR
                                                 ^Received,,,,
                                                 COURT OF CRIMINAL APPEALS
      IN THE COURT OF APPEEALS FOR THE
                                                     NOV 18 2015
          NINTH DISTRICT OF TEXAS

             AT BEAUMONT TEXAS                   Abel Acosta, Clerk


           TRIAL COURT NO.       23233

        IN THE 258TH DISTRICT COURT

           OF POLK COUNTY, TEXAS



           JOSEPH BERNARD COOPER,
                                                      FLED IN
                            APPELLANT         COURT OF CRIMINAL APPEALS

                      VS.
                                                     iayisz::j

             THE STATE OF TEXAS                   Abel Acosta, Clerk
                            APPELLEE




APPELLANT'S PETITION FOR DISCRETIONARY REVIEW



                            JOSEPH BERNARD COOPER

                            JESTER III UNIT #1938617

                            3   JESTER ROAD

                            RICHMOND, TEXAS 77406

                            PRO SE APPELLANT

                            JOSEPH BERNARD COOPER

                  COVER PAGE
                                TABLE OF CONTENTS
                                                              PAGENU>EER
Table of contents                                             1

Identity of parties involved                                  2
Statement regarding oral Argument                             20
Statement of Procedural history                               5

Index of authorities                                          3 and 4

Arguments: "Appellant adopts all statements contained in Appellant's Pro Se Appeals Brief  Ml



1. Did the Ninth court of appeals decide an important question of state law by dening
appellant new counsel to re-brief appeal when error was found?. ..PG. 5
2. Did the Ninth court of appeals decide an important question of state law in holding
that appellant did not suffer reversable harm when not allowed to attend pre-trial;?-.. .PG.6
3. Did the Ninth court of appeals decide an important question of states law by holding
that the Court did not abuse it's discretion by dening the appellant his right to be
present in the courtroom when the jury communicated to the court four notes in violation
of CCP Art. 36.272...PG.6
4. Did the court violate my rights to Double Jeopardy by exceeding the number of allowable
units of prosecution then the legislature intended for a given set of conduct?...pg.6
5. Did the trial court error by not including the alledged enhancements on the face of the
indictment defeasible of the fifth circuit ruling in Childress v. Johnson making the
sentence Illegal?.. .PG. 7
6. Did the trial court error by way of IMPROPER JURY CHARGE BY USING NON-STATUTORY
DEFINITIONS IN THE JURY CHARGE?; . .PG.       7
7. Is the evidence constitutionally insufficient to sustain appellant's conviction for
aggravated assault with a deadly weapon.?.. .PG.7
8. Did the trial court error by not ruling on appellant's motion for new trial?.. .PG.7
9- Did the trial court error by refusing to instruct the jury on a lesser-included offense?.-:
   (A) Is assault causes bodily injury a lesser-included offense of aggravated assault with
   a deadly weapon?... PG.7
   (B) Does evidence exists that would permit a jury to rationally find appellant guilty
   only of the lesser-included offense? .. .PG.7
10. Did the judge abuse her discretion by refusing to recall testimony when asked by Jury?,.PG.7
Conclusion and Prayer for relief —                             20
Declaration                                                    21
Certificate of service                                         21


                                          1   of 21
                    IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 68.4 (a), a complete list of the names
and all interested parties is provided below.



Appellant:                              Joseph Bernard Cooper

                                        TDCJ ID#1938617

Presiding Judge at Pretrial             HON. KAYCEE JONES,
                                        411th Judicial district
and Voir Fire Proceedings:
                                        Polk County Judicial Center

Presiding Judge:                        Judge Ernest McClendon
                                        258th District Court

                                        Polk County Judicial Center
Trial Counsel for Appellant             Dana Williams

                                        401 N.Washingtom Ave.
                                        Livingston Texas 77351

Trial Counsel For Appellee              Beverly D. Armstrong
                                        Assistant Criminal District Attorney
                                        Galveston County District Attorney's
                                        Office, 600 59th street, #1001
                                        Galveston, Texas 77551

Appellate Counsel for Appellee          B.   Tood Dillon

                                        Assistant Criminal District Attorney
                                        Pplk County District Attorney's
                                        Office, 101 W. Mill Street, suite#247
                                        Livingston Texas 77351

Appellate Counsel for Appellate         Mike Aduddell
                                        223 Simonton Street
                                        Conroe, Texas 77351

Appellee                                The State of Texas




                                        JOSEPH BERNARD COOPER
                                        Pro Se Appellant

                                  2 of 21
                               INDEX OF AUTHORITIES
                                                                                PAGE NO.
Martin v. Maxey, 98 F. .3d 844,847, (5dth. Cir.1996)                                  5

Childress v. Johnson, 103 F. .3d 1221,1229 (1997)                                     7,12

Nissan Motor co. v. Armstrong 145 S.W. .3d 131,144 (Texas 2004)                       9
Goode v. Shoukfen, 943 S.W. .2d 441,446 (Tex. 1997)                                   9
Rutledge v. United States, 517 U.S. 292,301-03,116 S.Ct. 1241                         11

Ball v. United States, 470 U.S. 856,864-65,105 S.Ct. 1668                             11

Ex parte Beck, 922 S.W. .2d at 182 (CITING) *
Health v. State, 817 S.W. .2d 336 (Tex.Crim.App. 1991) *                              11

Ex parte Miller, 921 S.W. .2d at 239                                                  11
Mizell, 119 S.W. .3d at 806                                                           11,12
Ex parte Drinkert, 821 S.W. .2d, 953                                                  12

Girdy v. State (Cr.App. 2006) 213 S.W. .3d 315                                        12
Earl v. State 870 S.W. .2d 669 (1994)                                                 13

Tenner v. State 850 S.W. .2d 818 (1993)                                               13

Currie v. State 30 S.W. .3d 394,398 (2000)                                            13

Briggs v. Procunier 764 F. 2d 368 (1985) at 371                                       13
French v. Estelle, 692 F. .2d 1021,1023 (5th. Cir. 1982)v«WobWrtWoWoW«WnWrfoW«w«w«v
— Cert, denied, 461 U.S. 937,103 S.Ct. 2108                                           13
Tex. Gov't Code Ann. § 311.011 (west 2013)                                            14

Tex. Penal Code Ann. § 1.05 (B) (west 2011)                                           14

V.T.C.A, Penal code § 1.07 (a),(ll),(A,B)                                             16
Kirsch v. State, 357 S.W. .3d 645,652 (Tex.Crim.App. 2012)                            14
Bluitt v. State, 137 S.W. .3d 51,53 (Tex.Crim.App. 2004)                              14



                                                                             C0NT...PG.4




                                        3   of 21
                                   INDEX OF AUTHORITIES
                                                                       PAGE NO.
Saunaer v. State, 817 S.W. .2d 688,692 (Tex.Cir.App. 1991)                  14
Thomas v. State 821 S.W. .2d 616 (Tex.Cr.App. 1991)                         16
Rousseau, 855 S.W. .2d at 672-73                                            18

Moreno v. State, 38 S.W. .3d 774,778 (Tex.App--Houston[14 Dist] 2001        18
Wawrykow v. State, 866 S.W. .2d 87,88-89 (Tex.App.Beaumont 1993)            18

Goodin v. State, 750 S.W. .2d 857,859 (Tex.App.Corpus Christi 1988)         18


TEXAS CODE OF CRIMINAL PROCEDURE     Art. 36.27                             10

                                         36.28                              19

                                         37.08                              12:

                                         21.03                              12

                                         28;10
TEX.R. APP.   >»                         44.1                               9

                                         68.4 (a)                           2,20




                                          4 of 21
                        STATEMENT OF PROCEDURAL HISTORY

     On March 21, 2014, Appellant was indicted for Assault with a Deadly

Weapon (count 1) and Assault causes Bodily Injury (count 2). Appellant
was brought to trial on June 24, 2014. Appellant entered a plea of not

guilty on all counts. ThereAfter a-> Jury found the Appellant guilty on all
counts.


     The trial Judge found the allegation in the enhancement notification

true but never rewrote the indictment to enclude the enhancements. The

Appellant was sentenced to 75 years in the texas Department of Criminal
Justice on count 1 and 6 months in county jail for count 2. Appellant filed

a motion for new trial on July 24, 2014 and request for evidentiary hearing

which was never heard or ruled on . Appellant timely filed a Pro Se

notice of Appeal on July 1, 2014.

     The Ninth Court of Appeals Affirmed the trial Court's judgment on
August 12, 2015. NO MOTION FOR REHEARING WAS FILED. Appellant now timely

petitions this Honorable court for Discretionary review.

Appellant presents 10      grounds for review before this Honorable Court
          JOSEPH BERNARD COOPER VS. THE STATE OF TEXAS NO.23233

     Pro Se Petition for Discretionary review must be construed liberally
and are not held to the same stringent and rigorous standards as pleadings
filed by lawyers, see Martin v. Maxey, 98 F. 3d 844,847(5th Cir. 1996)
                           GROUND ONE FOR REVIEW

     DID THE NINTH COURT OF APPEALS DECIDE AN IMPORTANT QUESTION OF STATE

LAW BY DENING APPELLANT NEW COUNSEL TO REBRIEF THE APPEAL WHEN ERROR WAS

FOUND BY THE APPELLANT? THE ANDERS BRIEF DID NOT REPRESENT THE INDIGENT
APPELLANT'S APPEAL TO THE BEST OF Appellate Counsel's ABILITY RENDERING
INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL.




                                     5 of 21
                            GROUND TWO FOR REVIEW

     DID THE NINTH COURT OF APPEALS DECIDE AfliJ IMPORTANT QUESTION OF

STATE LAW THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THE COURT OF

CRIMINAL APPEALS IN HOLDING THAT APPELLANT DID NOT SUFFER REVERSABLE

HARM WHEN HE WASN'NT ALLOWED TO ATTEND HIS PRE TRIAL HEARING AND MOTIONS

HEARING.

                           GROUND THREE FOR REVIEW

     DID THE NINTH COURT OF APPEALS DECIDE AN IMPORTANT QUESTION OF STATE

LAW THAT HAS NOT BEEN,BUT SHOULD BE, SETTLED BY THE COURT OF CRIMINAL APPEALS
BY THE TRIAL COURT ABUSING IT'S DISCRETION BY HOLDING THAT APPELLANT DID

NOT SUFFER REVERSIBLE HARM BY DENING HIS RIGHT TO BE PRESENT WHEN THE JURY

COMMUNICATED WITH THE COURT WITH FOUR NOTES AND THE REREADING OF THE JURY

CHARGE.    IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE ART. 36.27 AND

MY CONSTITUTIONAL RIGHT TO BE PRESENT AT TRIAL WHICH DENIED ME MY OPPORT-

unity to defend and object.
                            GROUND FOUR FOR REVIEW

     DID THE NINTH COURT OF APPEALS DECIDE AN IMPORTANT QUESTION OF STATE

LAW THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THE COURT OF CRIMINAL
APPEALS IN HOLDING THAT MY RIGHTS AGAINSTS DOUBLE JEOPARDY WAS NOT
VIOLATED BY RULING THAT ASSAULT CAUSES BODILY INJURY (count 2) IS NOT A
A LESSER INCLUDED OFFENSE OF ASSAULT WITH A DEADLY WEAPON.

     THE CORE QUESTION IS WHETHER THE STATE HAS EXCEEDED THE NUMBER OF
ALLOWABLE UNITS OF PROSECUTION THAT THE LEGISLATURE INTENDED FOR A GIVEN

SET OF CONDUCT. BY GIVING APPELLANT MULTIPLE-PUNISHMENTS ARISING OUT OF

THE SAME CRIMINAL ACT IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE

FIFTH AMENDMENT TO THE U.S. CONSTITUTION AND THE FOUTEENTH AMENDMENT.




                                    6 of 21
                          GROUND FIVE FOR REVIEW

      DID THE TRIAL COURT ERROR BY NOT INCLUDING THE ALLEDGED ENHANCEMENTS

ON THE FACE OF THE INDICTMENT. DID IT BRING BACK A TRUE FACT OF LAW IN

DEFEASIBLE OF THE FIFTH CIRCUIT RULING   IN CHILDRESS V.   JOHNSON 103 F.   3d

1221,1229 (1997) AND MANY-'MORE CASE WHICH REQUIRE THE ALLEDGED ENHANCEMENTS

BE LISTED ON THE FAGE^OF THE INDICTMENT..THEREFORE, MAKING-SENTENCE ILLEGAL.

                           GROUND SIX FOR REVIEW)

      DID THE TRIAL COURT ERROR BY WAY OF AN IMPROPER JURY CHARGE BY INCLUD

ING^NONSTATUTORY DEFINITIONS OF THE TERMS "DEADLY WEAPON" '/BODILY INJURY",
"INTENTIONALLY',', OR "WITH INTENT," "KNOWINGLY,"OR"WITH KNOWLEDGE"AND WHERE

THE JURY CHARGE INSTRUCTS THE JURY AT IV. par CR. pg. 7

                          GROUND SEVEN FOR REVIEW

 ''   IS THE EVIDENCE CONSTITUTIONALLY INSUFFICIENT OT SUSTAIN APPELLANT'S

CONVICTION FOR AGGRAVATED ASSAULT WITH DEADLY WEAPON (COUNT 1)-BECAUSE THE

ALLEDGED OBJECT (shoe string) WAS NOT A DEADLY WEAPON AND THE STATE FAILED

TO PROVE THE APPELLANT ACTUALLY USED OR INTENTIONALLY OR WITH INTENT TO

USE IT IN A MANNER CAPABLE OF CAUSING DEATH.

                         GROUND EIGHT FOR REVIEW

      DID THE TRIAL COURT ERROR BY NOT RULING ON APPELLANT'S MOTION FOR

NEW TRIAL.

                        GROUND NINE FOR REVIEW

      glE THE TRIAL COURT ERROR BY REFUSING TO INSTRUCT THE JURY ON A LESSER-

INCLUDED OFFENSE? (A) IS ASSAULT CAUSES BODILY INJURY A LESSER-INCLUDED

OFFENSE OF AGGRAVATED ASSAULT WITH A DEADLY WEAPON? (B) DOES EVIDENCE EXISTS

THAT WOULD PERMIT A JURY TO RATIONALLY FIND APPELLANT GUILTY ONLY OF THE

LESSER-INCLUDED OFFENSE OF ASSAULT CAUSES BODILY INJURY? IF THE APPELLANT

IS GUILTY?

                         GROUND TEN FOR REVIEW

      DID THE JUDGE ABUSE HER DISCRETION BY REFUSING TO RECALL TESTIMONY?

                                   7 of 21
     GROUND ONE REVIEW ARGUMENTS:    The Appellant contends that the Anders

brief was not legally applied to Appellant's case because Error was found
in the course of the pre-trial and motion to Limine which if rebriefed

would correctly reflect a professional assesment of the laws of the State

of texas.    The Appellee concedes that Appellant had a right to be present
at thes hearings to which the state calls it. see Appellee's brief page 8.
Furthermore, other grounds for appeal exist that if give a second counsel
on appeal    would futher the appeal cause of action.
     The Ninth court of appeals has yet to address whether a harm analysis

should be conducted to which appellant request from this honorable court.


     GROUND TWO REVIEW ARGUMENTS:    The Appellant contends that the Trial

court errored by abusing its discretion by not allowing the Appellant the
right to be present at pre-trial and motions hearing to limine.
see RR, VOL. 2, pg. 5,LL.1-11

     The right of the accused to be present in the courtroom is of const
itutional magnitude one that is guaranteed by the confrontation clause of
U.S. const, amend. 5 and 14. ^appellant adopts the statementccontained in

Appellants    Pro Se Appeals brief, pg. 8 of 17.
     The Appellant could not OBJECT TO OR RAISE QUESTIONS BECAUSE APPELLANT

WAS NOT PRESENT AT THE PROCEDING. Therefore, appellant only found out about

the pre-trial after receiving the records from the Appellate attorney. So,
the court and the.Trial Attorney abused its discretion and was ineffective
by not even telling me of such a pre-trial.

     The appellant state's that if I was present that I would have objected
to   and or raised questions to the court as well as my attorney about
"prejudicial and irrelevant matters in order to allow some favorable evid-
to a justification defense, my state of mind when how the alledge assault
                                    8 of 21
came about, told the court in more detail about the sexual harrasment (see
vol 2 pg6 LL. 1-15), I would have pressed upon my attorney by way of objection
to bring out any alledged victim violent and assaultive criminal history
that he has which he has a assaultive history (see RR vol 2, pg. 5LL,15-25),
I would have requested the witness Billy Dukes statements of the video-tape
and explained to the court what it had on it that was favorable to the

defense which was with held by the jail and prosecution (Brady violation)
(see RR vol 2 pg. 14, LL,15-25; pg. 15,LL,1-13), and additionally I would
have admited or allowed my medical records in to evidence in order to show

mental status and the type of medications I was on; that some of them was
not surpose to be taken together which will all come out at a hearing if
and when that time comes.(see RR vol 2 pgg,11,LL,23-24) Due to the Courts
abuse of its discretion and my attorney's ineffective assistance of counsel
by not having me at the pre-trial hindered my defense and the cumulative
effect of the defense-irrelevant and prejudicial matters prejudiced the

therjury and my right to defend and admit testimony of a justification
defense. See: Goode v. Shoukfen, 943 s.w. 2d 441,446(Tex.1997) were a trial
court abuses its discretion if it acts arbitrarily unreasonably, or without

reference to any guiding rules or principles, the trial judge as well as
the Defense attorney knows in all criminal cases the defendant after Indict

ment must be present during the trial procedings. This case should be reversed
due to the judges erroneous evidentiary rulings to which error probably
caused rendition of an improper judgment and substantially effected the
outcome of the trial, see Tex.R.App. 44.1; nissan motor co v. armstrong

.145 s.w. 3d 131,144(Texas. 2004). REQUESTING A HARM ANALYST
     THE APPELLANT ADOPTS THE STATEMENT OF THE CASE CONTAINED!)IN APPELLANTS

PRO SE BRIEF PAGE 8-9 pointyof error 2


                                  9 of 21
     GROUND THREE REVIEW ARGUMENTS:      The Appellant contends that he was

denied his constitutional right to be present in the court when the jury

communicated four notes   to   the court which was   in violation   of   the Texas

code of criminal Procedure Art. 36.27 and by being in absantia,thus denied
me my right to defend by way of objection. APPELLANT ADOPTS THE STATEMENT

CONTAINED IN APPELLANTS PRO SE BRIEF OF APPEALS PAGE 9-10

     Appellant was not present in court to object to the rereading of the
jury charge, when question to the jury was asked about testimony to which
was obtainable from the court reporter, the question was (see RR. vol. 3,
pg. 208, LL,11-15) "was there testimony that indicated the sequence of what
happened immediatedly after the altercation through when the cell was cleaned

by the inmates?"   The Judge abused her discretion by not telling the jury the
testimony that she could obtain from the court reporter to refer too.            Then
there was a considerable and lenghty discusion about what testimony, if

the jury had a problem and or disagreement, (see vol. 3 pg. 209 LL,l-6;6-20)
where the jury had a problem concerning the shoe string as a Deadly weapon,
could they consider something else. In fact there was testimony of a necklace

that the victim had around/ wore on his neck(see vol. 3 pg. 114,LL,17). The
judge abused her discretion and failed to recall testimony upon request by

the jury in violation of code of criminal procedure; Art. 36.^28 which .-

which rendered the verdict unrelieable. Therefore, causing a conviction

against the appellant. The trial attorney for the Appellant should have

objected to the misinformation, but didn't. Thus, rendering ineffective
assistance for failure to object to and advocating the defenses cause of

action. This created   predudice and misleading and confusion within the

jury that if given the requested information the outcome of the trial

would have been diffeerent. Therefore, rendering an unreliable judgment
and collateral consequences of the conviction that constitutes actual prejudice

                                       10 of 21
(see Rutledge v. United states, 517 us 292, 301-03, 116-S. ct. 1241; and
Ball v. United States 470 us 856,864-65, 105 S. ct. 1668 where prejudice

can result from the conviction itself. The additional conviction could

increase future sentences or be used to impeach,the Appellants credibility

if he testifies at a future proceding.)
     THE STATE CONTENDS THAT BY NOT OBJECTING TO THE MATTER AT TRIAL WAIVED

THE ERROR. The RATIONAL OF THE MATTER IS "HOW CAN YOU (APPELLANT)OBJECT
TO A ERROR WHEN HE IS NOT PRESENT IN COURTROOM?" Therefore, a harm analyst
should be conducted out of fundamental fairness and in the interest of

justice.

     GROUND FOUR REVIEW ARGUMENTS:     The Appellant contends that the state

has exceeded the number of allowable units of prosecution the legislature
intended for a given set of conduct. By giving the Appellant multiple-
punishments arising out of the same criminal act in violation of the
double jeopardy clause of the fifth amendment to the United states const

itution and the fouteenth amendment. IN THE INTEREST OF JUSTICE     Appellant
argues that   "A defect which renders a sentence void may be raised at any
time." see Ex parte Beck, 922 S.W. 2d at 182 (citing Health v. State, 817
S.w. 2d 335, 336(Tex.Crim.App.l991)(opinion on original submission)); see
also Ex parte Miller, 921 S.W. .2d at 239. IN fact, "there has never been
anything in Texas law that prevented any court with jurisdiction over a
criminal case from noticing and correcting an illegal SEHMSE^; ." no matter
when or how the relief was sought. Mizell, 119 S.W. 3d at 806. The Ap
pellant is not a professional lawyer or counselor at law to know that
you can't be charged twice for the same offense with the same elements!
Furthermore due to a severe mental disease that trial counsel was well
aware of (see RR. vol. 2 pg. 11,LL,23-24) rendered me in a state of
confusion to be connected mentally to the procedings.I don't even remember
 reading an Indictment due to the medications I was on.

                                     11 of 21
    The Appellant contends that his trial attorney was ineffective for

not objecting to the Indictment on the grounds of multiplicity.

Appellants adopts the statement contained in Appellants Pro Se Brief, pg.7

of 17 The Appallants trial attorney violated his 6th amend Rights by her

failure to object to the indictment which created prejudice to the appellant
by being convicted of an additional offense arising out of the same cause

or criminal episode with the same elements. Trial attorney did not haves

a firm grip on the laws of the case, see Ex parte Drinkert 821 sw 2d, 953
(Tex. Cr. App. 1991). Girdy v. State (cr. app. 2006) 213 s.w. 3d 315) and
see Tex. code of crim. proc. and rules art. 37.08 ,

    GROUND FIVE REVIEW ARGUMENTS:    The Appellant contends that the trial court

errored by not including the alleged enhancements on the face of the Indict

ment. Did it bring back a true fact of law indefeasible of the fifth cir

cuit ruleing in CHILDRESS V. JOHNSON 103 F. 3d 1221,1229 (1997) which re
quire the alledged enhancements to be listed on the face of the indictment.

APPELLANT CONTENDS THAT HIS SENTENCE OF 75 years IS AN ILLEGAL SENTENCE DUE TO

AND DECIDING RULES IN CHILDRESS.

     Appellant argues that the trial court errored by not encluding the

the alledged enhancements in the indictment oh it's face. The indictment

did not alledge any enhancements in the indictment which Childress expressly
rules that and enhancement must be in the indictment (5th Cir.).; In Art.

21.03 "provides that everything must be stated in the indictment which is

necessary to prove". ; Therefore, renders his 75 year sentence void and

illegal. m [a] sentence which is outside the maximum or minimum range of
punishment is   unauthorized by law and therefore illegal" quoting Mizell,
119 sw 3d at 806. Furthermore, when the judge delivered the sentence based

on the indictment before the judge it did not contain any paragraphs for

enhancements purposes to increase punishment thus the judge acted out the
                                   12 of 21
illegal sentence outside the range of punishment prescribed by the indict
ment before the judge. The range of punishment is 2 to 20 years on the face
of the indictment. The appellant contends that per the indictment at trial
he is actually innocent of being an habitual felony offender, see Earl
v. state 870 sw 2d 669 (1994) If proof fails to corresponds with enhancement
allegations of the indictment, punishment can not be legally enhanced;

In Tenner v. State 850 sw 2d 818 (1993) enhancement must be in the     indict

ment;Currie v. state 30 sw 3d 394,398 (2000);     The appellant contends that
the fifth court of appeals has expressed repeatedly that the enhancements

must be in the indictment. Prior to trial the state had more than enough
time to amend the indictment to enclude any'type of enhancement as stated
in Art. 28.10 amendment of the   indictment (A)    It would be prejudicial to
to amend the indictment as in sec. (C) Therefore, the Appellant Objects.
If a new sentencing hearing is conducted for proper assessment of punish
ment the appellant contends that in Briggs v. Procunier 764 F. 2d 368 (1985)
at 371 " THE two prior convictions must be alleged in the indictment, and
upon review allegations of the elements of a substantive offense."

the Double Jeopardy clause prohibits the sentencing of the defendant as

a habitual offender at a second trial, see French v. Estelle, 692 F 2d
1021, 1023 (5th Cir. 1982), Cert, denied, 461 us 937,103 S. Ct. 2108.
     The Appellant contends that a notice is not sufficient because of the

laws applied   in the stated laws and rules stated above, as well as cases

stated.




                                 13 of 21
    GROUND SIX REVIEW ARGUMENTS:     The Appellant contend that the trial

court errored by an IMPROPER JURY CHARGE by including non-statutory defin

itions of the terms "DEADLY WEAPON","BODILY INJURY","INTENTIONALLY", OR
WITH INTENT","KNOWINGLY, OR WITH KNOWLEDGE" AND WHERE THE JURY CHARGE
INSTRUCTS THE JURY AT IV. PAR CR. PG. 7. "ATTEMPTING TO CHOKE".

     The appellant argues that when a term is undefined in the Penal Code

the jury is to construe its meaning according to the rules of grammar and -;
common usage, see Tex. Gov't code Ann.§ 311.011(west 2013); Tex. Penal

code Ann. § 1.05(b) (west 2011)(incorporating government code section 311.011)
Appellant relies on Kirsch v. state, in which the court of criminal appeals

held a jury instruction defining the common word "operate" was an improper
comment on the weight of the evidence in a driving while intoxicated pro
secution. Kirsch v state, 357 sw .3d 645,652 (Tex.Crim.App. 2012). In
Kirsch, the court noted that while the definition given to the jury was

neutral and legally accurate, because the term "operate" is a common word

that has not acquired a technical meaning it was to be interpreted by the

jury according to its common usage and instructing the jury to apply a
particular definition was improper. Id at 650-52; Tex.Gov't code Ann.

§ 311.011(stating general rule that statutorily undefined term is to be
construed according to its common usage, but that words and phrases that

have "acquired a technical or particular meaning, whether by legislative

definition or otherwise, shall be construed accordingly")
     The Appellant argues that the incorrect and misleading definitions

was-significantly more persuasive by the error of miss leading definitions

which caused egregious harm and a reversal is required, see Bluitt v.

state, 137 sw 3d 51,53 (Tex.Crim.App. 2004); also see Saunder v. state,
817 sw 2d 688,692 (Tex. cir.App.1991). The appellant argues that the phrases

given an operational definition as "attack", where there is a reasonable
                                   14 of 21
expectation or fear of some'bodily injury" or "apparent danger". Which
legitimized the concept as used in the application of the paragraph which
is more persuasive. ThereAfter, appellant asserts that the jury was placed
in a position where it would have to (acquit on both counts or find appellant
guilty on both counts) completely if it did not find he committed and
offense with a deadly weapon or intentionally or with knowledge being that
testimony existed of a necklace being worn. The appellant contends that
this is analogous for expecting a jury to ignore an extraneous offense.

Thus, the error allowed me to be convicted of a crime I did not do and

it relieved the jury of its duty to find each element of the offense true
before convicting. That is why the jury sent for additional testimony on
who told who to clean the dorm and or requesting testimony of the same and

the question of can the jury consider something else as a Deadly Weapon, see
RR vol 3, pg. 209, LL,15-20.     The rationale upon which the jury based the
question concerning the if they could consider something else as a Deadly
weapon is due to the Improper Jury charge and the fact that a juror really
believed something else caused the injuries to the victims neck besides a
shoe string. The fact of the matter is no shoe string existed.
     I request that this error ^s^requires     a reversal. If I were present
in the courtroom when the notes where communicated to the court I would

have objected   to the judge abuse of discretion by not appling the law.
     I request a harm analyst.




                                   15 of 21
    GROUND SEVEN REVIEW ARGUMENTS:   The Appellant contends that the

evidence is constitutionally insufficiant to sustain Appellant's conviction
because the alledged object was not a deadly weapon and the state failed

to prove the Appellant actually used or intended to use a shoe string as

a Deadly weapon in a manner capable of causing death.

     The Appellant argues that the evidence is factual insufficient to

support the jury's findings that a Deadly weapon was used because the state
did not establish "that an alleged shoe string" was used intently and
knowingly and that the Deadly weapon qualified as a deadly weapon. The

alledged shoe string (deadly weapon) never existed and was never capable
of causing death by design and or serious bodily injury or death. There
was never a shoe string testimony proved that it was a jailhouse homemade

cross that the victim wore around his neck all the time (SEE RR. VOL/3

pg. 114,LL.17). The Appellant states that and have writen a statement to

that fact and that a witness who is the topic of the record above stated

the same. The the theorem is that in the course of the fight somehow the

victim strached his own neck somehow during the fight with his necklace.

Therefore, the necklace was never intently and knowingly used as a deadly
weapon by Appellant, nor was it exhibited in such a manner that would
cause fear of death or to harm or in a threatening manner. The state did

not introduce into evidence the alleged (shoe string) used, There was no
expert testimony of it's size, shape, lenght,or it's design. If the state
had introduced evidence that was fully adequate to show that the alleged

deadly weapon(shoe string/ jail house necklace) was a deadly weapon by
design rather than by usage it would have been sufficiant to sustain the

charge. Even the charging Indictment fails in saying"attempting to use".
See V.T.C.A,PENAL CODE§ 1.07(a)(11)(a,b); also see Thomas v. state 821
sw 2d 616( Tex.Cr.App.1991). To determine whether a particular shoe string"
                                16 of 21
is a deadly weapon,the following may be considered:

1.    the size, shape, lenght. 2. the manner of its use or intended use;
3.    the nature or existence of inflicted wounds: 4. the proximity of the
defendant and the complainant; 5. the use of any brandishing motions;
6. statements, including threats, made by the defendant; 7. the complain
ant's fear of serious bodily injury or death; and 8. evidence of the shoe
strings capacity to produce death or serious bodily injury.
        There was no expert testimony to support a deadly weapon finding, all
the statements made was not made as an expert of the shoe string. The
theorem or guess of witnesses is just         a guess and there opinion. Because,

not even the victim could say I put a shoe string around his neck when

we were fighting. The detective Billy Dukes after taking the statement
from the victim said thatthe victim was not truthful as to his injuries.
(see vol. 3 pg>'45,LL, 12-15 arid vol 3 pg.44,LL.12-13 statementsgiven two
months later)
        I request a revesal and a applied acquittal on cout one of the indict

ment.


        GROUND EIGHT FOR REVIEW ARGUMENTS: The Appellant contends that the

denial to hear or rule on the Appellant's Motion for new Trial was erroneous
        The Appellant argues that if the Motion for new Trial had been granted
the     it would have developed information of conflict of interest on Billy
Duke being heavely involved with the victim as his imformant (CI). There
fore creating a conflict of interest as an detective investigating the
very case to which his informant was involved in. If the Motion for new
trial was granted it would have revealed that Billy Dukes investigation of
the fight was biased and deprived/1 the Appellant of his right to fundamental
fairness guaranteed ,by the due^pr>QC,es,s cLaus'e»T6+f <tehe••• U. S. const. Further
more, it would have been developed that the presiding Judge and the DA had
been co-workers for years before the judge was recently appointed to the
                                       17 of 21
bench. These actions require a revesal and a new trial ordered.

     GROUND NINE REVIEW ARGUMENTS:   The Appellant contends that the trial

court errored by refusing to instruct :;he jury on the Lesser- included
offense of assault with regard to tho. aggravated assault with a Deadly
weapon charged in the indictment. To which the appellant was entitled to
assault being listed on the Jury Charge as a Lesser-includod offense.

IS ASSAULT CAUSES BODILY INJURY A LESSER INCLUDED OFFENSE OF AGGRAVATED

ASSAULT WITH A DEADLY WEAPON?

DOES EVIDENCE EXISTS THAT WOULD PERMIT A JURY TO RATIONALLY FIND APPELLANT

GUILTY ONLY OF THE LESSER-INCLUDED OFFENSE OF ASSAULT? IF THE APPELLANT;

IS GUILTY? (see Rousseau, 855 sw 2d at 672-73.)
     A LESSER INCLUDED OFFENSE INSTRUCTION WAS REQUIRED IF THE RECORD

CONTAINS SOME EVIDENCE THAT APPELLANT DID NOT USE OR EXHIBIT A DEADLY WEAPON,

(see moreno v. state, 38 sw 3d 774,778,(Tex.App-Houston[14th dist] 2001^
     However, the record states evidence that appellant did not use a deadly
weapon and that the victim had a home made jailhouse necklace on his neck at

or around the time of the fight, (see RR.VOL 3 pg. 114,LL.17) Also see
motion for new trial and   the state of the Appellant.

     The argues that if the jury charge contained a Lesser-included offense

o# assault causes bodily injury and not listed as two offenses that the
jury would have only convicted the appellant of assault cause bodily injury.
The jury charge and the way it is writen is confusing to the jury and ambigous

in meaning to the jury, which lead the jury to only one decision which is

to convict on both charges. The fact of the matter is the jury charge is

not applicable to the law of use of common sense and applied common know

ledge, (see Wawrykow v. state, 866 sw 2d 87,88-89(Tex.App.Beaumont 1993,
pet ref'd)(finding that a rational jury could have inferred that pushes
to the chest caused "physical pain") see also Goodin v. state, 750 sw 2d

857,859 (Tex.App-corpus Christ: 1988.pet. fef'd)(stating that people of
                                 18 of 21
Common intelligence understand what naturally causes physical pain)
     The Appellant argues that "I ADOPT THE STATEMENT CONTAINED IN THE

APPELLANT'S PRO SE BRIEF PAGE 11 and 13"       IT WAS JUST A FIGHT AND NOTHENING

ELSE BUT A FIGHT IN A CONTINUOUS ACTION AND THERE WAS NO INTENT TO CAUSE ANY

TYPE OF HARM AND THERE WAS NO DEADLY WEAPON.INVOLVED.

     I request in light of the facts and in the interest of justice that

appellant requires a reversal and a implied acquittal. I further request a

a harm analyst.

     GROUND TEN REVIEW ARGUMENTS:    The Appellant contends that the presiding

judge abused her discretion and errored by refusing testimony to the jury
upon request by the jury.

     The appellant argues that if the trial judge would have provided the
testimony that the jury requested concerning who told who to clean the dorm

right after the fight see RR. VOL 3 pg. 208,LL,ll-25;pg.209,LL,l-20(stating
how the judge abused her    discretion by not providing the testimony and allow

ing the DA to answer for the court) there verdict would have been different.

Instead the jury had to relie on memory of a complex trial proceedings.

     The Appellant argues that the CODE OF CRIMINAL PROCEDURE: Art.36.28

"JURY MAY HAVE WITNESS RE-EXAMINED OR TESTIMONY READ" was violated by the
judge therefore, by refusing    to have the tesimony read from the records

upon request violated said article and was a abuse of discretion by the judge.

ART. 36y28   says "In the trial of a criminal case in a court, if the jury
disagree as to the statement of any witness they may, upon applying to the

court, have read to them from the court reporter's notes that part of such

witness testimony or the particular point in dispute, and no other; but

if there be no such reporter, or if his notes cannot be read to the jury

the.court may cause such witness to be again brought upon the stand and the

judge shall direct him to repeat his testimony as to the point in dispute,


                                    19 of 21
and no other, as nearly as he can in the language used on the trial.

       I am requesting that you carefully examine the testimony from the

"PRESIDING JUDGE AND THE DA"    AND do a harm analyst to which you will
agree with me that a reversal is required in the interest of justice.

                                CONCLUSION

       The Appellant concludes that the..appeal is not frivolous, (1) There is
10 (ten) arguable grounds for appeal that exist and a remand or reversal is
required due to the cumulative errors, (2) new counsel may be appointed to
rebrief the issues involved.

                            PRAYER FOR RELIEFS

       WHEREFORE,PREMISES CONSIDERED, APPELLANT PRAYS THAT THIS HONORABLE
COURT GRANT THIS PETITION FOR DISCRETIONARY REVIEW. FOLLOWING THE GRANTING

OF REVIEW, APPELLANT PRAYS THAT THE JUDGMENT OF THE COURT OF APPEALS BE

REVERSED AND RENDERED,. OR REVERSED AND A NEW TRIAL ORDERED, OR THE CASE
REMANDED FOR FURTHER REVIEW AND IN THE ALTERNATIVE ANY RELIEF THE COURT

DEEM   I AM ENTITLED TO.




                                                  RESPECTFULLY SUBMITTED,




                                                  JOSEPH BERNARD COOPER PRO^SE
                                                   JESTER III UNIT#1938617
                                                   3 JESTER ROAD
                                                  RICHMOND, TEXAS 77406


                     STATEMENT REGARDING ORAL ARGUMENT

PURSUANT OT TEX.R.APP.PROC. 68.4 (C) APPELLANT REQUEST ORAL        ARGUMENT.




                                   20 of 21
                               DECLARATION

I JOSEPH BERNARD COOPER, PRO SE APPELLANT, BEING PRESENTLY CONFINED AT
THE JESTER III UNIT, 3 JESTER ROAD, RICHMOND, TEXAS 77406, OF THE TEXAS

DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL DIVISION.   DECLARE UNDER

PENALTY OF PURJURY THAT THE FOREGOING IS TRUE AND CORRECT TO THE BEST

OF MY ABILITY AND KNOWLEDGE.

     EXECUTED THIS 10th DAY OF NOVEMBER 2015




                        CERTIFICATE OF SERVI

THIS IS TO CERTIFY THAT A TRUE AND CORRECT COPY OF THE ABOVE AND

FOREGOING HAS BEEN DELIVERED TO THE COURT OF CRIMINAL APPEALS OF TEXAS,

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711 via U.S ROSTAL SERVICE
BY THE JESTER III UNIT MAILROOM ON THIS THE 10TH DAY OF NOVEMBER2015.




                                                         ERNARD COOPER PRO SE




                                  21 of 21
                                     In The


                              Court ofAppeals

                   Ninth District of Texas at Beaumont


                             NO. 09-14-00301-CR



                  JOSEPH BERNARD COOPER, Appellant

                                       V.


                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 258th District Court
                              Polk County, Texas
                             Trial Cause No. 23233



                         MEMORANDUM OPINION


      A jury convicted Joseph Bernard Cooper of aggravated assault with a deadly

weapon and assault causing bodily injury. The trial court found that Cooper had

two prior felony convictions and sentenced Cooper to seventy-five years in prison

for aggravated assault and six months in county jail for misdemeanor assault, to

run concurrently. Cooper's appellate counsel filed a brief that presents counsel's

professional evaluation of the record and concludes Cooper's appeal is frivolous.
See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807

(Tex. Crim. App. 1978). Cooper filed a pro se brief in response.

      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. 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 it has reviewed

the record and finds no reversible error"; or (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. We have determined that this appeal is wholly frivolous. We

have independently examined the clerk's record and the reporter's record, and we

agree that no arguable issues support the appeal. 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.


                                                      STEVE McKEITHEN
                                                          Chief Justice
Submitted on July 21, 2015
Opinion Delivered August 12, 2015
Do Not Publish


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

       !Cooper may challenge our decision by filing a petition for discretionary
review. See Tex. R. App. P. 68.
