                            PD-1345-14
                                  CAUSE NO.


ELBERT LEE SANDERS/                       §       THF POFTRT OP                                ~^
           APPELLANT/PETITIONER,                                                       r-o   XlJ".
                                          *       CRIMINAL APPEALS^ Sv_                <^    %^
v.                                                                      i - /^         rs    i;- c5
                                                  OF TEXAS              - V            -< >-ct-
           APPELLEE/RESPONDENT,           §                             \,l. 3^          > fS-J
                                                                         - Co           -o
                                                                                           "; '
                                                                                              —
                                                                                        ac    ;•-'•
                  MOTION FOR LEAVE TO FILE AN OUT OF TIME "" -,J^
                  PETITION FOR DISCRETIONARY REVIEW (PDR)                ~ "§^~

TO   THE   HONORABLE   COURT   OF   CRIMINAL    APPEALS:


      COME NOW,     Elbert Lee Sanders,        appellant,    pro-se,     in the aboved

cause and respectfully presents his "Motion For Leave to File An

out of Time Petition For Discretionary Review" and ^fr^s^p'pe^rt'will
                                                                 COURT OF CRIMINAL APPEALS
show the following thereof;
                                                                       MAY 08 2015
                                          i


       Appellant was convicted in the _54th District ^@gF/teO^I,r05li1ln
County,     for the offense of Aggravated Assault,                and Possession of

a Firearm by a: Felon.         Tex.Penal Code,     Sec.22.02 and Sec.46.04.

       Appellant appealed his convictions in the Fourth District

Osur-t" of .Appeals in caise no 04-13-00487-CR. Thecappeal cour't'L.ED IN
affirmed the conviction on the 29th day of August,
                                                                         e6*OF CRIMINAL APPEALS
                                                                      2014.
                                                                                 MAY 112015
                                         ii.
                       REASONS FOR GRANTING THIS MOTION                           ',
                                  —                          ;                Abel Acosta, Clerk
       Appellant PDR was due on the 28th day of September,                     2014,but

appellant could file the petition within th (30)-days as required

and was unable to file for an extention of                 time    to file his PDR.

       Appellant was unable to comply with these requirements due to

the actions of the Allen Polunsky Units Administration,; and the

Correctional staff here on the unit where im assigned.




                                         (1)
                                 CAUSE   NO.



ELBERT LEE SANDERS                              §
            APPELLANT/PETITIONER,                   IN THE COURT OF
                                                                                                                    f,*"- ^cr.
                                                s   CRIMINAL APPEALS             1 V- >                     en

                                                                                                            3S      •*T      ^
                                                                                 .il      m*        ^^s».   ^a      ^~ %::'
THE STATE OF TEXAS                              §                                rn       tfi               —<      * v , ~ ...,

                                                    OF    TEXAS                  :-       ^n*.               1      ^•-•'W _J
            APPELLEE/RESPONDENT,                                                                            cn
                                                                                                                    2-i-n
                                                §                                %
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                                                                                                            3S       .''•*>•
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                                                                                                                     ;-:'f'"iv
                          MOTION TO SUSPEND RULE 9.3(b)                                         ^           __
                                                                                                            •   •




                                                                                   --     /V''              —i        ;
TO   THE   HONORABLE     COURT   OF   CRIMINAL      APPEALS:


       COMES NOW,       Elbert Lee Sanders,          appellant in the aboved styled

cause and respectfully present his Motion To Suspend Rule 9.3(b)

of the Texas Rule of Appellate Procedure,                     and in support will show

the following:

      1).Appellant is appealing his conviction from the 54TH
         ^District :;Gourt, McLennan County, cause No.2012-327-C2.
      2).His appellate brief was denied by the Court Of Appeals
           for   the   Fourth    District      No.04-13-00487-CR.

      3).Appellant does not have access to a copier machine to
           make the required amount of copies.
      4).Appellant is indigent does not get paid, or recieves any
         support and can not afford to have copies made.


WHEREFORE PREMISES CONSIDERED,                 Appellant prays that this Honorable

court grants this motion to suspend Rule 9.3(b) and allow him to

submit only the original copy of his petition For Discretionary

Review     (PDR).
                                                         RESPECTFULLY          SUBMITTED,



                                                     ELBERT       LEE    SANDERS          #     1871122
                                                     ALLEN    POLUNSKY          UNIT
                                                     3872    F.M.       350   SOUTH
                                                     LIVINGSTION,             TEXAS       77351




                                         (l)-of-(l)
        Due to appellant's personal property being confiscated by

the officer's here on the unit,                     who also confiscated all his legal

mail,    and documents.           Appellant could not meet the dead-lines to

file    his    PDR,    or   to   file   a   motion    for    extention,        because    he   was

unable to get the cause number                  for       the appeal,     and was unable to

contact any-one with that information.

        Appellant has,[due to no fault of his own]                            lost his right to

petition this Honorable Court to review his claims due to the unit

lock-downs,       property being taken,               and slow responses              from the ad

ministration department to resolve the problem at hand,                                  and to

return my property,              and on or about the 26th day of March,2015,

appellant had some properety returned,                        and was able to present to

the    court    this    motion.


                                            CONCLUSION


        Appellant pray that this Honorable grant this                            foregoing           •;•:

Motion    for    leave      to   file   and   out    of    time   PDR   for    the    reason's


stated,       and allow him to file            his petition for the Honorable

Court    to    review.


                                    Inmate     Declaration

       I, Elbert Lee Sanders, being presently incarcerated in the Texas Depart

ment of Criminal Justice, at the Allen B. Polunsky Unit, in Polk County Texas

declare under penalty of perjury that the foregoing information contained in

this motion is true and correct.

SIGNED AND SUBMITTED ON THE2J? DAY OF ApjLy i                                 2015.

                                                              ELBERT LEE        SANDERS#1871122




                                                    (2)
                              CERTIFICATE     OF    SERVICE



       I,   ELBERT   LEE   SANDERS,      HEREBY    CERTIFY    THAT       A    TRUE    AND    CORRECT

COPY   OF   THIS   DOCUMENT   WAS   SENT    VIA,    FIRST    CLASS       U.S.       MAIL    TO THE


DISTRICT     ATTORNEYS     OFFICE   OF    MCLENNAN    COUNTY,       ON       THIS    DAY    THE

?% DAY OF £W~\\                 2015.


                                                     fStofr, ^wW^
                                                     ELBERT    LEE       SANDERS       #1871122

                                                     ALLEN    POLUNSKY          UNIT

                                                     3872    F.M.    350       SOUTH

                                                     LIVINGSTON,             TEXAS    77351




                                            (3)
                 MO.



                           IN    THE


          COURT      OF   CRIMINAL          APPEALS


                          OF    TEXAS




              ELBERT       LEE         SANDERS,
                                        APPELLANT/PETITIONER


                                V.




               THE     STATE      OF    TEXAS
                                        APPELLEE/RESPONDENT




APPELLANT'S   PETITION         FOR     DISCRETIONARY         REVIEW




        IN APPEAL NO.      04 -      13 -   00487 -   CR

                          From the

                  COURT OF APPEALS

         For the Fourth Judicial District

                  San Antonio,         Texas



                                               Elbert Lee Sanders
                                               TDCJ-ID NO.    1871122
                                               Polunsky Unit
                                               3872 FM     350 South
                                               Livingston, Texas 77351



          ORAL    ARGUEMENT            REQUESTED
                                 TABLE      OF    CONTENTS




INDEX OF AUTHORITIES                                                  iii

STATEMENT REGARDING ORAL ARGUMENT                                     1

STATEMENT OF THE CASE                                               • •2

STATEMENT OF PROCEDURAL HISTORY                                       3

GROUNDS    FOR REVIEW. .                                              4



                             GROUND   FOR   REVIEW    NO.    ONE.


            DID THE FOURTH COURT OF APPEALS ERROR BY NOT CONDUCTING

           A HARM ANALYSIS OF APPELLANT'S CHALLENGE TO THE MISLEADING

                COURT CHARGE IN THE PUNISHMENT PHASE OF THE TRIAL?



                             GROUND   FOR   REVIEW    NO.    TWO.


           DID THE COURT OF APPEALS DECIDE ON A RULE THAT WAS CONTRARY

          TO DECISIONS OF IT'S SISTER COURTS ON APPELLANT'S ARGUMENT OF

                 THE JUDGE INSTRUCTION ON SYMPATHY IN THIS CASE?




ARGUMENT    NUMBER     ONE.


ARGUMENT    NUMBER     TWO


PRAYER    FOR   RELIEF


CERTIFICATE      OF   SERVICE


APPENDIX                                                •• • -




                                                 11
                           INDEX    OF   AUTHORITIES


CASES:


STATE:

ALLEN V. STATE, 253 S.W. 3d @ 264, N. 15.                           pg. 8
ALMANZA V. STATE, 686 S.W. 2d 157, 171(Tex. Crim. App. 1985)        pg. 5, 8
BOYKIN V. STATE, 818 S.W. 2d 782(Tex. Crim. App. 1991).             pg. 7
EX PARTE VARELAS, 45 S.W. 3d 627(Tex. Crim. App. 2001)              pg. 6
GIGLIOBIANCO V. STATE, 210 S.W. 3d 637, 641-41(Tex. Crim. App. 2006).pg. 6
HAMAL V. STATE, 352 S.W. 3d 835(Tex. App. - Forth Worth 2011)       pg. 5
HILL V. STATE, 30 S.W. 3d 505(Tex. App. - Texarkana 2000)           pg. 6
HINOJOSA V. STATE, 780 S.W. 2d 299(Tex. App. - Beaumont 1989)       pg. 6
HUTCH V. STATE, 922 S.W. 2d 166(Tex. Crim. App. 1996)               pg. 5, 8
LUQUIS V. STATE, .72 S.W. 2d 355(Tex. Crim. App. 2002)...           pg. 4
MADDEN V. STATE, 242 S.W. 3d 504(Tex. Crim. App. 2007)              pg. 8
OLIVAS V. STATE, 262 S.W. 3d 144(Tex. Crim. App. 2006)              pg. 8
ROSS V. STATE, 752 S.W. 2d 529(Tex. Crim. App. 1988)             ...pg. 6


FEDERAL:

CALIFORNIA V. BROWN, 479 U.S. 538, 542(1987)..                      pg. 8
FRANCIS V. FRANKLIN, 471 U.S. 307(1985)                             pg. 9
SANDSTORM V. MONTANA, 442 U.S. 510(1979)                            pg. 9
UNITED STATES V SANDERS, 272 F. Supp. 245(D.C. Cal. 1967)          ..pg. 8


STATE STATUES:

TEXAS CODE OF CRIMINAL PROCEDURE, ARTICLE 36.14                     pg. 5,7,8
TEXAS CODE OF CRIMINAL PROCEDURE,. ARTICLE 37.07                    pg. 4
TEXAS CODE OF CRIMINAL PROCEDURE, ARTICLE 37.07 § 3(a)(1)           pg. 7
TEXAS CODE OF CRIMINAL PROCEDURE, ARTICLE 37.07 (4) (a)             pg. 4
TEXAS GOVERNMENT CODE §311.011(a)..                                 pg- 7
TEXAS GOVERNMENT CODE §508.141                                      P3- 4


STATE RULES OF EVIDENCE:

TEXAS RULES OF EVIDENCE, RULE 403



TEXAS CONSTITUTION:

TEXAS CONSTITUTION, ARTICLE 2 § 1                                    pg- 7


                                         ill
                               NO.


                                       IN    THE


                       COURT     OF   CRIMINAL       APPEALS


                                      OF    TEXAS




                          ELBERT           LEE     SANDERS,
                                                     Appellant/Petitioner




                           THE    STATE      OF    TEXAS,
                                                     Appellee/Respondent




           APPELLANT'S PETITION FOR DISCRETIONARY REVIEW




TO THE COURT OF CRIMINAL APPEALS              OF    TEXAS:

       Appellant/Petitioner respectfully submits this Petition For
Discretionary Review and moves that this Honorable Court grant review of
this cause and offer the following in support thereof:


                   STATEMENT REGARDING ORAL ARGUMENT


       The Appellant/Petitioner request oral argument in the case because
such argument may assist the court in applying the Facts to the issues raised.

                                            (1)
It   is    suggested   that   oral argument may help simplify the facts and clarify
the issues.




                              STATEMENT      OF    THE   CASE




               Appellate/Petitioner    was    indicted   on    on§ count]- of Aggravated

Assault,     Tex. Penal Code, 22.02, and Felony Possession of a Firearm by Felon,

Tex. Penal Code, 46.04. After a jury trial on July 1, 2013 in the 54th District

Court in Mclennan County, the jury convicted Appellant/Petitioner, and assessed

sentence of fifty-five years, for Agg. Assault, and twenty years for Possession

of Firearm by Felon.




                       STATEMENT    OF    PROCEDURAL          HISTORY




               In cause no. 2012 - 327 - C2, the Appellant/Petitioner was charged

with the offenses of Aggravated Assault, and Felony Possession of Firearm by

Felon. The Appellant/Petitioner was convicted of such offense's on July 3,

2013,     and appealed    the conviction. On August 29, 2014, the Court of Appeals

Affirmed the conviction, and on £\^r'A 1%                     / 2015, this petition for
Discretionary Review was timely forwarded to the Court of Criminal Appeals.




                                             (2)
                             GROUNDS         FOR     REVIEW




                                             I .




             DID THE FOURTH        COURT OF        APPEALS      ERROR BY NOT

      CONDUCTING A      HARM       ANALYSIS        ON APPELLANT'S          CHALLENGE

TO   THE MISLEADING     COURT       CHARGE ON        THE    PUNISHMENT, OF THE          TRIAL




                                            II




       DID    THE   COURT    OF    APPEALS    DECIDE       ON   A   RULE   THAT   WAS


       CONTRARY TO THE DECISIONS OF                  IT'S    SISTER COURT'S ON

        APPELLANT'S     ARGUMENT       OF    THE     JUDGE      INSTRUCTING THE

                      JURY    ON    SYMPATHY       IN   THIS    CASE.




                                             (3)
                                   ARGUMENT     AND   AUTHORITIES



                                   First     Ground       for   Relief


        Did the : :F.ourt-h"'.'    Court of Appeals. error by not conducting a harm
        analysis of Appellant's challenge to the misleading court charge on
                              the punishment phase of the trial.


          Appellant argues that trial court erred by giving the jury an instruction
by generally explaining Texas Code of Criminal Procedural Article 37.07(4)(a) -
without the statutory application required in this particular offense.
          The     instant   case       is   considered     under      Tex. Gov't Code Ann. 508.141
as    a 3g - offense, inwhieh a normal citizen has no.personal knowlege of which
portion of the instruction of Art. 37.07(4)(a) apply, and absence to the
instruction by the court on which portion of the charge applied to the instant
case,     left     the jury to. pick and choose, because there possibly may have been
six     memebrs     of the jury considering the portion of the court charge relation
to the early release on parole portion, and there also may have been six
members of the jury that considered the portion of the court charge relating
to the early release on parole portion, and there also may have been six
memebrs of the jury that considered the portion that speaks about a person
serving half - their sentence before becoming eligible for parole.
       The Court of Appeals here       misrepresents the argument as presented
in page (7) of Sanders appellate brief, by stating that he's attempting to
distinguish his argument from Luquis V. State, 72 S.W. 3d 355(Tex. Crim.
App. 2002) which he's clearly pointing out that the Tenth Court, which is
a     sister     court, has overruled this issue, and has never analyzed the precise
issue     raised,     which       is   one of statutory construction, which-required -t-he
-c.o.ur-t -to-define -the -spef-i-e -portion-of. the--statue -o£_37:*07--. .£© - the.: element •
of    the'case 'that''"distinguished "it              from      the    other   elements.

          In other word, the law applicable to the case a defendant is on trial
to defend against.            Sanders argued that the Tenth Court has followed Luquis,
and that this case is not foreclosed by Luquis, because in this case, Sanders
does not content that the judge should have changed the language as in Luquis,
 he argues that the judge should have simply added language to the instruction
 to ensure the overall effect.



                                                   ("4)
        Simply put, the trial judge was well aware of the law's that surrounded
the   case,     but   the      jury member's were not shown to had been knowledgable of
the law, or 3g - offenses, the court had an obligation to explain the
definition's, and surrounding laws involved in an abstract of the charge,
and   explain     how        it applied to the individual case in an application portion
to avoid confusion during, which the court failed to do.
        The     Fourth        Court   of Appeals decision was wrong, and when considering
the harm that resulted, Sander's ask the court to consider the issue as
presented by the appellant                brief, that plainly set out the fact's alleged,
also the applicable laws involved.
        Applicant counsel also pointed out that because there was no objection,
the   harm     must     be     analized   under the "egregious harm" standard. Almanza V.
State, 686 S.W.. 2d 157, 171(Tex. Crim. App. 1985); Hamal V. State, 352 S.W.
3d 835(Tex. App. - Fort Worth 2011) because eregious harm did occur here
in    this     case, where it affected the very basic of the case, it also deprived
him of a valuable right which is guaranted by the due process clause of the
Fourteenth Amendment.

         The     Court       of Appeals erred by stating that the defense attorney never
discussed good conduct                or parole   in argument, or urged the jury to assess
a greater,        or lesser sentence based upon good conduct time or parole. See
page (5) of opinion. Which was wrong because the defense counsel did briefly
refer to parole and good time as a reminder for the jury not to consider.
See pg. (9) and (10) of Appellant Brief, also Reporters Records at (RR7:28-29)
    , •The jury instruction compared with that in Hutch V. State, -'922. S.W.
2d'166'(Tex. Crim. App. 1996), represent's the same factors, because of being
allowed      to deleberate on the assumption that Sanders could be released early
without supervision, or simply released'early if he accumlated good-conduct
time,, without being instructed on the ramifications of the actual case, namely
3g - offense.
          Pursuant       to    the    law's   applicable   here,   the case must be reversed,
 because Texas Code Criminal Procedure-Ann. Art. 36.14 requires the, judge to
 provide jury with both in abstract statement of the law and an application
 of that statement, which the court failed to do. The court never specifically
   explained how the parole elegibility law applied to the case before the court
   as opposed to the general instruction that was given by the court. In Beaumont
-, the Court of Appeals stated that, "Giving statutory parole law and good-


                                                  (5)
conduct instruction during punishment phase of trial was Fundamental Error."
Hinojosa V. State, 780 S.W. 2d 299(Tex. App. Beaumont 1989) In.the Court of
Appeals in Texarkana, the court also agreed that eroneous parole law instruction
in punishment charge to which defendant did not object and which incorrectly
stated that defendant's good conduct time would be included in calculating
when he would become eligible for parole did cause defendant to suffer
egregious       harm.     Hill    V.     State,    30 S.W. 3d 505(Tex. App. - Texarkana 2000).
There's       nothing     in     the    records    to   overcome the presumption that the jury
didn't       consider the extent to which good-^conduct time might have been awarded
when     deciding       the    range of       punishment.       The function of the trial court's
charge is to instruct the jury on how.to apply that law to the facts, and
to    lead     and    prevent     confusion       during jury deliberations, which wasn't the
case here, in this case a general instruction was given, absence an instruction
on    what     applied     to the case before the court. See Ex Parte Varelas, 45 S.W.
3d 627(Tex. Crim. App. 2001) There were not one transitory reference in the
instruction emphasizing that the jury was not to consider the parole law to
calculate the sentence. Ross V. State, 752 S.W. 2d 529(Tex. Crim. App. 1988)
The proper resolution here would be reverse and remand for new trial on
punishment.


                                   Second Ground          for    Relief



             Did the Court od Appeals decide on a rule that was contrary to
          decisions of it's sister court's on Appellant's argument of the
                     Judge instructing the jury on sympathy in this case


          The Court erred by instructing the jury on not considering sympathy
in reaching          it's decision, which created the tendency of the jury to suggest
their     decision       on an improper basis, because looking at the facts, the trial
judge instruction more-than-likely inherented the probative force of .confusion
on the jury given undue weight on the jury's decision, as opposed to allowing
the     jury to       evaluate         the probative force of the evidence. See Gigliobianco
V. State, 210 S.W. 3d 637, 641-42(Tex. Crim. App. 2006)
          In    Gigliobianco,           the   court conducted a balancing test concerning 403
evidence, to determine whether evidence might have the tendency of unfair




                                                    (6)
prejudice,         of if         it   arouses         the jury's hostility or sympathy for one side
without    regard             to the logical probative force of the evidence, which in this
case the issue referred to is the improper instruction give by the court in a
 non-capital"           offense,        that       was    of     a level so extreme that prejudiced the
decision      of        the     jury. The court instruction on the issue of not (considering.;
sympathy was so lacking in justification, that there was an error well under
stood,     and comprehended in existing law beyond any possibility for >fair:iminde'd
disagrement.
          The reviewing court erred by not granting relief on this issue because
the   Court        of     Appeal,       as     well      as the trial court judge was fully aware of
the   harm     caused           by    the    court       instructing the jury on the sympathy issue.
The   jury was            not     deciding         whether or not to sentence appellant to life or
death,     this         case     was a       non-capital,            and the sympathy instruction was not
warranted,         The        Texas    Supreme        Court      noted    that, one error is harmful, and
calculated         to     injure       the rights of             the defendant. An independant basis for
reversal arises if the error, even whether objected to, or not timely objected
to, because though not timely objected to, the eror becomes so egregious, and
creates such harm that it deprives the accussed of a fair proceeding. By the
judge giving a sympathy instruction in a non-capitol offense, the judge sent
a message to the jury that he felt the appellate diserve an extreme sentence,
now considering the fact that phraseology still serves as only a general
admonition, its vital to consider the statutory construction of a word page
(11) of      the        appellant       brief points              to   the admonishment given to the jury
stating:
              Do not            let    personal          bias,       prejudice, sympathy, or resentment on
              your part,              or any such personal emotions on your part, enter into
              your deliberations or after your verdict in the case."
the   defense           counsel       fail     to object to the charge on the basic of the judge
instructing         the        jury to disregard sympathy during deliberation. Texas Code
of Criminal             Procedure,          art.    36.14, required the court to instruct the jury
under the laws applicable to art. 36.14, required the court to instruct the
jury under the laws applicable to art. 37.07 §3(A)(1). The Appellant counsel
correctly pointed out that this court, and other Appellate Courts of this
state have a duty to interpret the laws enacted by State Legislature, Texas
Constitution, article 2 §1, also Boykin V. State, 818 S.W. 2d 782(Tex. Crim.
App. 1991) See also Texas Goverment Code Ann. §311.011(a), which was also


                                                               (7)
presented to the Court of Appeals but ignored. When considering words and
phrases       as       explained         in Boykin, Focusing mainly on the literal text of the
statue       in question,               the     instruction given by the court instructed the jury
"not     to consider              sympathy"          where     sympathy      is proper for to consider, and
the Fourth Court of Appeals decision conflicts with the United States Supreme
Court     decision in             United States V. Sanders, 272 F. Supp. 245(D.C Cal. 1967)
which was presented to the court as a tool in deciding this issue.
                  Appellant            also    pointed out that the trial in California V. Brown,
479 U.S.           538,        542(1987)        The    Court       conclusion of the sympathy instruction
was     proper,         but      only if the adjective "merely" is inserted before sympathy,
because       mere        sympathy        is    not a directive, where using merely in conjuction
with      sympathy,            does     focuses       the    jury on the defendant's moral culpability
and     on    the evidence, which is extremely flawed. The Appellant counsel raised
this issue pursuant to Almanza V. State, 686 S.W. 2d 157(Tex. Crim. App. 1985)
                   The     issue        present's       a basic for reversal, because the unobjected
to     instruction. advising                   the    jury not to consider "sympathy", as opposed to
the     court          instructing the jury not to use mere sympathy was a harmful error.
Several       case's           has been presented to this court on issues involving the jury
instruction,             and this court has repeatedly determined that, "when a defendant
fails        to present           a proper . requested               instruction, any error in the charge
should       be        reviewed        only     for    egregious         harm under.; Almanza." See Madden V.
:State,      242        S.W.     3d 504(Tex.           Crim. App. 2007); Hutch V. State, 922 S.W. 2d
166,      171(Tex.         Crim.        App     1996)(stating egregious harm is the type and level
of harm           that     affects        the        very    basic of the case...): Allen V. State, 253
S.W.      3d at          264,     n.     15,:        Olivas V. State, 262 S.W. 3d 144, 149(Tex. Crim.
                   )                                           :     :
App. 2006).
                   The appellant has never challenged the statutory conflict of the
instruction given by the court, nor. did he state that there was a conflict
in the sympathy instruction and article 36.14, as the Court of Appeals refer
to on page (7) of it's opinion, also this is not the same issue discussed by
the Second Court of Appeals. Appellant refer's to context, and grammar, this
is     a matter           that        involves        a matter of "statutory construction" of terms.
Conflict with              the        Supreme Court decision in California V. Brown, 479 U.S.
538(1987) the question in this case is not what the court declares the meaning
of the charge to be, but rather what the jury could have understood the charge



                                                               (8)
as    meaning.            Francis    V.    Franklin, 471 U.S. 307(1985): Sandstrom V. Montana,
442     U.S.        510(1979)       The instruction gave no indication what so ever that the
jury was            to     distinguish       between       "tethered" and "untethered" sympathy, the
jury     was        not     instructed       to avoid        mere sympathy, but to avoid sympathy as
a     whole,        when must be reas to modify all the other terms in the instruction,
because        of     the     facts       stated    here,     this court should grant this petition,
and render relief as required by law.



                                                       PRAYER




                    Appellant/Petitioner            pray     that   the court grant this petition and
reverse        and        remand    this     case    to the sentencing court for rehearing of the
punishment phase of the trial.



                                          CERTIFICATE         OF SERVICE




                    I certify that on this the 7J4                     day of A^ft \       2015, that
a     true     and correct            copy of this petition was forwarded by U.S. Mail, First
class, to the attorney for the state.




                                                                      t\Ll£N BsMUMCky UAltr
                                                                      3#72 Fni?£tf £
                                                                      UUl/m^TM T£XA£ 7 73S)




                                                            (9)
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