                                                                                                       JQ tt?- 03

                            IN   THE       COURT       OF    CRIMINAL           APPEALS
                                                                                                iVIOTIGW DISMISSED
                                      FOR       THE    STATE      OF       TEXAS
                                                                                               BY:       UT^
                                      IN    CAUSE       NO.      CR21120-A


EX    PARTE                                                  § ON APPEAL FROM THE 35TH

GARY    DON    BEASON                                        § JUDICIAL DISTRICT COURT

                                                             § OF BROWN COUNTY,                TEXAS


                             MOTION         TO       REBUT    STATES           RESPONSE




        COMES        NOW,     GARY          DON        BEASON/             Appellant       in the foregoing

cause        and     would       show           this        Honorable            Court the following         in

response to the State's letter opposing Appellant's habeas action/

file     dated        October             27th/        2014;          of       which/    Appellant received

his copy on January 21st;                           2015.

         First/        Art.        11.07(7)             requires the State to notify Appel

lant's        Attorney/          or        Appellant             in        a    Pro se filing/         when he

responds to the habeas action.

         Appellant           was          not       in reciept of the State's letter in re

sponse,        and     filed          a     motion           requesting            the Court to instruct

the     State's        Attorney             to        return          service       upon Appellant.          The

Court        clerk     forwarded                a     copy       of        the State's letter with her

notice        of     the     District                Court's          forwarding          of    habeas action

to the Court of Criminal Appeals.

         I     mention        this          merely to show why the Appellant response

is    late.
                                                                                        RECEIVED IN
                                                                                COURT OF CRIMINAL APPEALS

                                                                                         FEB 02 201§

                                                            i.
        Appellant              did     file        an     affidavit in support of his habeas

application              upon        recieving           an    order     from     the Court inviting

him     to        do     so;        however/        he        could not respond to the State's

brief    letter          as    he    was    not    served       until   now.

         The           State's        Attorney           alleges Appellant has forfeited his

right        to        raise        this     claim        on     collateral appeal as the trial

court        heard           his     motion        to     dismiss/       and    denied   it.   And   his

Appellate              Attorney        did        not     raise      the issue on direct Appeal.

Quoting Ex Parte Clore,                       690        S.W.2d 899, 900(Tex.Crim.App.1985).

         This           is     exactly        why        Appellant's       second ground alleges

ineffective assistance on Appeal.

         The           State further adds that jurisdiction is not contingent

on whether indictment has a defect of form or substance.                                        Quoting

Teal v. State,                230 S.W.3d 172/             177(Tex.Crim.App.2007).

         Both           points        can     be        clearly argued by using the standard

set forth in Aguilar v. State,                                 846   S-W.2d      318     (Tex.Crim.App.

1993).            This        Court        clearly established that Texas Constitution

Art.     5        §     12(b)/        authorizes              jurisdiction in indictments.            Any

challenges               must         be made prior to trial via motion to dismiss/

or     quash.            See        also     Ann. Art. 1.14(b)            Tex.Code of Crim.Proc:

or,    the right to challenge is waived.

         Once           that jurisdiction is challenged/ via motion to quash/

prior        to        trial on the merits/ if the defendant does not prevail

in     his challenge/                it becomes first requirement on direct Appeal.

        The Court also held in Aguilar, supra, an indictment lacking

fundamental              requirements effect jurisdiction/ and jurisdictional

issues can be brought up anytime.



                                                          2.
        The Court defined fundamental requirements as:

1)      fewer        than        number           of     grand     jurors      voted on true bill.

        (According to minutes of the grand jury).

2)      failure           of     the actual foreman of the grand jury to deliver

        the       bill    to    the    Court       Clerk.


3)      forgery of the foreman's signature.

4)      inadvertant              signing           and     returning of a bill           in a case not

        reviewed by grand jury.

         Appellant              asserts           that     in     any     case the Court clerk may

not     certify document.                       And without the statutory required certi

fication           set     forth           in     Art-     25.01        T-CCP.    the    indictment    is

not legal sufficiency of notice.

         As        appellant stated in his motion to dismiss/                            the document

could        have        been        produced           on any computer and defendant has no

idea     of        the     true        nature           of the indictment on record accusing

him.


         Therefore              without           due     process of law,        that is guaranteed

by     the        14th     Amendment              of     the United States Constitution/              and

backed        up     by        the     legislative              statute      of Texas,   and previous

Court        of     Criminal           Appeals decisions/               an   indictment that is not

certified by the Court Clerk is insufficient notice.                                      And without

sufficient notice of charges one cannot prepare a defense/                                      there

fore jurisdiction is voided.

         This        Court           has        held     that     when interpreting legislative

intent        and/or           purpose/           we     necessarily         focus our attention on

the     literal text of the statute in question.                                 Yet a third reason

for     focusing           on        the        literal     text        is that the legislature is
constitutionally                 entitled         to     expect           that       the judiciary will

faithfully follow the specific text that was adopted.                                              Boykin v.

State/    818 S.W.2d 782 (Tex.Crim.App.1991).

        This court held in Campbell v. State/                                   49    S.W-3d 874 (2001)/

where     the        statute is clear and unambiguous the legislature must

be     understood           to        mean what it has expressed/                       and it is not for

the    Courts    to add          or    subtract        from    it.        See    also   Coit v.      State,

808 S.W.2d 473 9Tex.Crim.App.1991) quoting Ex Parte Davis/                                             412

S.W.2d 46 (Tex.Crim.App.1967).

         Therefore           Appellant            would        ask        this Honorable Court:              Can

the     District        Courts           interpret            legislative intent and purpose,

and     disregard           Art.        25.01 of        Tex.Code of Crim.Proc?                      Also does

Court     Clerk        certification               rule meet ambiguous/                  and instructive

guidelines/          or is       it. mandatory?

         Appellant's              claim        that      the       court lacked jurisdiction is

not     merely        premised           on - a        defective           indictment;        but rather/

insufficiency           of        legal/       statutorily required notice of                        charges,

which     call        into        question the jurisdiction of the Court to hear

the    case.


         Art.        27.03        V.A.C.C.P.            at    (28)    shows this Court ruling as

far    back as       1910    in Johnson           v.   State,        60         Tex.Cri.       305,     131

S.W.     1085(1910),              that     the         presentment              of   indictment       against

accused        had     not        been     entered            on   the    minutes       of   the   Court     and

that     certified           copy        had      not been served on the accused/                       while

a     ground     for        postponing            the trial/          was no ground to quash the

indictment.




                                                        4.
         Also/           when        a     defendant              petitions     for sufficient notice

of     the     State's              charge        by        motion to quash/        adequately setting

out     the        manner           in     which notice is deficient.                   The presumption

of     innocence           coupled              with        the     right     to notice requires that

he be given such notice.                          Drumm v. State/             560    S.W.2d      944(Tex.

Crim.App.1977).

         Also,           Constitutional                 right        to adequate notice of charges

against        an        accused from face of                      indictment is substantial right

invoked        by        filing           motion        to        quash     for insufficient notice.

Jeffers v. State/                   646 S.W.2d 185 (Tex.Crim.App.1981).

         At        hearing           on     applicant's motion to dismiss/                    the State's

Attorney           said:        "If        it's        a matter of notice Mr.            Beason has not

shown        any     variance              in     his copy/          and the State's copy."         (R-R.

Vol.    5/    P.. 23).

         Then/       when           applicant submitted his copy of indictment into

evidence           the     State's              Attorney said to the Court that there was

a     variance           and        that        the     State's           copy of indictment had been

amended.           (R.R.       Vol.5/       P.22/       Ins.       11-20).

         The        Couct then stated that a hearing was held,                                with defen

dant     present/              to        amend        the     indictment.           (Paraphrased) (R.R.

Vol.5,       P.23)-

         The        record           will        not        support        parties ever being present

at     hearing.            The           first applicant ever knew of an amendment was

August        8th,        2011           at pretrial hearing where he waived his right

to counsel.              (R.R.       Vol.4,       P.10).




                                                             5.
       Court        Clerk's        supplemental               record        does    reflect that the
                                                        A     7
State filed motion              to Amend on •February                 1st,    2011.    Court ordered

Amendment       on    JPcDrecary 7th/              2011.          The order says,       "after notice

••to defendant         .-- Q^ £*k;Wf+s A *->0<
        Defendant          was         never       notified by Court/              or Counsel,   of   an

amendment      to    the   indictment.

        In     applicant's              original            motion     to     dismiss he states at

paragraph       five:        "defendant              therefore claims he was              not served

in    the     manner       prescribed              by       law     and he has no idea the true

nature of the indictment on record accusing him."

        Applicant          is      not        an     attorney         and has no legal training

therefore       he     cannot           be required to express with specific word

ing    and     phrases          necessary            to facilitate the Court's legal re

sponsibility toward him.

        The     Brown        County           jail      provides        no law library so legal

research       was     not        an        option ...point being,                 applicant's motion

to    dismiss        stated:           he     was not served in              the manner prescribed

by    law;     which,        is        the     same         as saying he was not given legal

sufficiency of notice.

        Applicant's ground one, at facts supporting/ clearly states

he    was not given notice of charges as prescribed by legislature,

challenging jurisdiction.




                                                        6.
                                    PRAYER    FOR   RELIEF


       Therefore Applicant prays this Court recognizes prima facia

evidence      in     that     he     was   denied     his 14th Amendment right          to

Due Process        of    law,      and his 6th Amendment right to a fair trial

guaranteed by the United States Constitution.

                                               Respectfully submitted.


                                               _lhyf-po*\ 7£>ju*^&^
                                               GARY   DON    BEASON

                                               TDCJ   #    1743056

                                               McCONNELL      UNIT

                                               3001   S.    EMILY    DR.

                                               BEEVILLE,      TEXAS    78102



                                    UNSWORN   DECLARATION

       I,     GARY      DON     BEASON/       Applicant       in the foregoing motion

do   hereby        declare      under      penalty of perjury that the foregoing

is true and correct to the best of my knowledge.


                                                                           /3jusU*P^
                                                    GARY    DON   BEASON


                                                    DATED ON:         ^/^-C 6? ~~ ' ^




                                              7.
                               CERTIFICATE     OF   SERVICE



     I,     GARY        DON BEASON/   the undersigned do hereby certify that

a   true and correct copy of the foregoing motion to rebut State's

response        has     been   sent to the Brown County District Attorney's

office     at     200     S.   Broadway   suite 326/         Brownwood,      Texas 76801,

by U.S. mail, on the £&7t\ day of ^JoJ^iAdn^y                 > 2015.


                                                    A*/y/&n Bjl0^0^
                                                GARY    DON    BEASON

                                                TDCJ#    1743056

                                                MCCONNELL       UNIT

                                                3001    S-    EMILY    DR.

                                                BEEVILLE,       TEXAS    78102




                                          8.
                                                                              stppJL//aS&'$ £?<L J-


                                               No. CR21120


                  THE STATE OF TEXAS                §     IN THE DISTRICT COURT
                             v-                     §     35th JUDICIAL DISTRICT
                       Gary Don Beason              §     BROWN COUNTY, TEXAS

                             Motion To Strike Language From Indictment


             Now Comes the State of Texas by and through her District Attorney for the 35th
       Judicial District of Texas, and files this Motion to Strike Language from Indictment in the
       above-referenced cause and in connection therewith would respectfully show unto the
       court the following, to-wit:

                                                    I.

             The relevant portion of the indictment states "Livy Funderburg, a child younger
       than 18 years of age, was present on the premises where the offense was committed,
       being the identical person named in the information". The State requests the following
       language be stricken: "being the identical person named in the information"
              WHEREFORE, the State requests that said indictment be stricken accordingly.




                                                     Micfleal
        FILED                                        DJCTrictAtWrney
 At 340 O'clock p                    M                  StateBXNo. 0092955
                                                    'Brown CounwCourthouse
                                                     BrownwoodfTexas 76801
             APR 01 2011                             325/646-0444



     ClerlcTJistrict Court Brown Co. TX
*y                         /\trD~eputy    Certificate of Service


              The undersigned certifies that a true and correct copy of the foregoing Motion was
       delivered via Facsimile to the office of Judson Woodley, Attorney at Law, 325-356-5193,
       on the    I**- day of March. 2011.
               —^                 ApfcJ




                                                    41
                                                                              A                 S   £?A' S




                                       No. CR21120


         THE STATE OF TEXAS                   \    IN THE DISTRICT COURT
                        v.                    i    35th JUDICIAL DISTRICT
               Gary Don Beason                i    BROWN COUNTY, TEXAS




                   Order Approving and Directing The Striking
                     of Language from the State's Indictment


      This day came the State of Texas by her prosecuting attorney, requesting leave of
court to strike language from the indictment/and aifer notice and hearing^he Court is of
the opinion that leave to strike should be granted and that "said indictment be stricken
accordingly.
      It is therefore the order of the Court that the prosecuting attorney be and is directed
to physically change the wording of the indictment to reflect on its face the striking of
language approved by the Court.
      Signed this the          dayofMa*cl£2011.
                         ?




    B}




                                              42
