                       Cause No.       076-tS
                                      IN THE

                             COURT OF C&IMDM&L APPEALS                  ORIGINAL
                                     OF TEXAS



                       lm~W~WWW
JAMES EARL PILAND
                                         §
Petitioner
                                         §      IN THE 4th
vs.
                                         §      JUDICIAL DISTRICT COURT

THE STATE OF TEKAS                              OF RUSK COUMY, TEXAS
Respondent




                                                                          ECEIVED IN
                                                                           OF CRIMINAL AF""
                                       FILED IN
                               COURT OF CRIMINAL APPEALS                   MAR 182015
                                      NAR 20 2015

                                   Abel Acosta, Clerk




                        VEEFEIW FOR DISCRETIOMARY REVIEW




                                                        James Earl Piland #1919190
                                                        Alfred Stringfellow Unit
                                                        1200 F.M. 655
                                                        Rosharon, Texas 77583




ORAL ARGUMENT WAIVED
                          IDENTITY OF     PARTIES


TRIAL JUDGE PRESIDING

The Honorable Judge Gossett
Courthouse, 115 Main St.,     Rocn? 303
Henderson, Texas 75652
Telephone #{903)657-0358


APPELLATE

The Honorable Justice Carter
The Honorable Justice Moseley, J.J
Chief Justice C.J.   Moriss
Sixth Court of Appeals
Bi-State Justice B.ldg0
100 K.   State Line Ave., Ho 20
Texar&ana,   Texas 75501-5666


                              PETITIOKER

TRIAL DEFEASE ATTORNEY

Allison Biggs, Atty-at-Law
300 w.   Main St.
Henderson, Texas 75652
Telephone #(903)657-8195

DIRECT APPEAL ATTORNEY

T.W. Davidson, Atty-at-Law
329 S.   Fannin Avenue
Tyler, Texas 75702
Telephone #(903)535-9600

                              RESPONDENT

PROSECUTOR   AND APPELLATE COUNSEL

Richard Kennedy, Atty-at-Law
Sack Wavrusa, Atty-at-Law
115 N. Main St., Room 302
Henderson, TeKas 75652-3147
Telephone #(903)657-2265
                       ..      'TABLE OF CONTENTS.                PAGE #


IDEOTITY OF PARTIES*............                          ....,   i

TABLE OF CONTENTS..                                               ii-iii

INDEX OF AUTHORmES......^...,.........                      »..

STATEMEK'T REGARDING ORAL ARGUMENT......

I. STATEMENT OF THE CASE.... .. I                                 1-3

II. STATEMENT OF PROCEDURAL HISTORY.....*......*                  3-4

III. GROUNDS FOR REVIEW.........................                  4

    1. Judicial Misconduct - Was evidence factually and legal ;
        ally sufficient to support the conviction?

    2. Legal and Factual.Insufficiency of Evidence - Is the
       indictment so flawed that the jury convicted the
       Defendant of the wrong offense under the Texas Penal
       Codes?


    3. Void Judgment - Did the trlial judge atjuse his discre
       tion in his failure to allow Defense Attorney to pro
       perly prepare for trial - denying the Petitioner a
       fair trial with effective counsel?

 1 4. Ineffective Assistance of Counsel - Was defense coun
       sel ineffective for* failure to file a Motion for Jury
     , InstJtucticsn on a Lesser-Included offense?


    5. Ineffective Assistance of Counsel r was defense coun
       sel ineffective for her failure to investigate and
       bring to trial the Petitioner's version of the facts?

   6. Ineffective Assistance of Counsel - was defense coun
       sel ineffective when she admitted she was ineffective
       at trial due to trial judges actions?

   7. Pzosecutorial Misconduct - Prosecutor failed to give
       Defense Counsel full notice of enhancement of charges
       until a half hour prior to Voir Dire?



                                       ii
                                                  TMBLE OF CONTENTS               PAGE g

     IV. ARfeXBter "AND ALACRITIES,                                                5-23

     PRAYER FOR RELIEF... . . . . . . . . . . . .                                  23-24

 VERIFICATION                 *....... ....                                         24
                                •;>- • •• - ••-.•.,                   •• • <   '..-••
     CERTIFICATE OF SERVICE. .•..,._...'                .*                         25
 APPENDIX A
   , '      '                            ...,., A.             •   ..'....„
<•        Opinion of the Sixtii Court of Appeals at Texarkana




                                                        3.11
FEBERRL STATOTES                IM3EX OF Al^ORTTTES                PAGE #

E?ule.s of Criminal Procedure,.' Rule 60(b)                         11
28 U.S.C.,§n46.....v*..........................                     24

SUPREME COURT REPORTER

Berger v. U.S., 55 stct. 629 (T985)..;..........„.....I........ 23
Cronic v. U.S., 104 S.Ct. 2039 (1984)......i...................     12
Cuyler v. Sullivan, 100 S.Ct. >716 (1978),.....................     20
Haines v. Kerner, 92 S.Ct. 594 (-1972)        ..*....              5
Hughes v. Rcwe, 101 S.Ct„ 173 (1988)...........................    5
In Re Winship, 99 S.Ct. 1073 (1978)............................    22
Jackson v. Virginia, 99 S.Ct. 2781 (1978)............              7,22
Jchnscn v. LanJo, 120 S.Ct. 522 (1999)........                     17
Liparota v. U.S., 105 S.Ct. 2084. (1985)                  .'       22
Maxwell v. Sheppard, 86 S.Ct. 1507 (19*66)                         11
Namet v. U.S., 83 S.Ct. 1151 (1963).........*....                  21
Roapilla v. Beazd, 125 S.Ct. 2456 (2005)            ,              19
Skinner v. State, 118 S.Ct. 1526 (1998)                            15
Snyder v. Ccnrnoiwealth of Mass., 54 S.Ct. 330 (1934)...........   11
Strickland v. Washington, 104 S.Ct. 2052 (1984)..                  12,17,19,20

MdJEkAL REPORTER


Johnson v. Lanb, 179 F.3d 352 ( .03x1999)                          17
Rogers v. Israel, 746F.2d«1288 (___ Cir 1984).                     19
Romnel v. Estelle, 590 F.2d 103 (5th Cir 1979).                    17
Washington v. Strickland, 693 F.2d 1243 (5th Cir 1982)             16
Wiggins v. Procunier, 753 F.2d 1318 (5th Cir 1985). *              5
fflSS&S STATUTES


Texas Penal Code § 4.31(c).                                        14
Texas Penal Code § 9.31(c)(l)(2)......                  ...        6,8
Texas Penal Code § 22.01                                           5,23
Texas Penal Code § 22.01(b)(1).......                              5
Texas Penal Code § 38.03(a)....                                    8
Texas Rules Of .Appellate Procedure, Rule 66.3                     23
Texas Rules Of Appeallate Procedure, Rule 63.1                     1




                                         IV
SOimigESTE^.'REPORTER     ,      5BBEB OF AttTHORITIES                        PAGE #

Aguilar y. State, 682 S.W.2tf 556 (Tx.Cr.App. 1985)....                  13
Barbernell Vi State, 257 S.W.3d'248-(Tx.App. 2008)............           22
Bell v. State,, 693 S.W.2d 434 (Tx.Cr.App. 1985)                         14
Bermudez v. State, ,§33, S.W.2d 805 (Tx.Cr.App. 1976)                    22
Eignall v. State, S87' S.W. 2d 21 (Tx.Cr*. App. 1984)         .;.....    3,14
Emery'v. State, 881 S.W.2<5 702 (Tx.Cr.App-. 1994)i;.;-....'.'.'•.'-...• 7
Ex Parte Barfield,' 697 S.W.2d «307 (Tx.Cr.App. 1985)..........•-.       7
Ex Parte Harris, 596 S.W.2d 293 (Tx.Cr.App. 1980).............           12
ExParte Seatch,'5e0S.W.2d. 593' (Tx.Cr.App. 1979)                        22
Ex Parte Welbom, 785 S.W.2d 391 (Tx.Cr.App. 1990)............            19
Haitptoh v. State, 66 S.W.3d 430 (Tx.App.-Houston [1st Distil
2001)                                                                    10
Jiminez v.' State, 953 S.W.-2d    293' (Tx.App.-Austin 1997)........     10,11,15,20
Jones v. State, 586 S.W.2d 542 (TktCr.App.. 1979).......... *.........   13
Jones v. State, 984 S.W.2d 254 (Tx.Cr.App. 1998)..............           9,14
Kerns v. State, 550 S.W.2G 91 (Tx.Cr.App. 1977)                          23
Lofton v. State, 6" S.W.3d 796 (Tx.Cr.App. 2001)                         9,10,11,13,14,
                                                                         15,20
Lofton v. State, 45 S.W.3d 649 (Tx.Cr.App^ 2001)......                   9,10,14
Kathis v. State, 67 S.W.3d 918 (Tx.Cr.App. 2002)                         10,13•
Mitchell v. State, 807 S.W.2d 740 (Tx.Cr.App. 1991)                  , 10,15
Nethery v. State, 692 S.W.2d 686 (Tx.Cr.App. 1985)                       9
Ortiz y. Jones, 917 S.w;2d 770 (Tx.Cr.App. 1996)                         7
Preston v. State, 700 S ,W.2d 227 (Tx.Cr.App. 1985)                      13
PrudhcfflG v. State, 989 S.W.2d 852 (Tx.App.-Kcustcn [14th Diet]
1999)        ...........*        .i.v........;....................       22
Reed v. State, 703 S.W.2d 380 (Tx.Cr.App. 1986)..                        9
Rickene v. State, 165 'S.K.33 675 (Tx.Cr.App. 2005)                      13
Rousseau v. State, 855 S.W.2d 666 (Tx.Cr.App. 1993).....                 13,14
Royster v. State, 622 S.W.2d 442 (Tx.Cr.App. 1981)............           13
Ruth v. State, 552 S.W.2d 517 (Tx.Cr.App. 1975)                          23
Saunders v. State, 91.3 S.W.2d 564 (Tx.App.-Corpus Christi 1994) 10,11,15,20
Skinner v. State, 956 S.W.2d 532 (Tx.Cr.App. 1997)............           15
Smith v. State, 676 S.W.2d 584 (Tx.Cr.App. 1984).'.............          9
Sutton v. State, 548 S.W.2d 697 (Tx.Cr.App. 1977).                       13
                             Cause No.


                                                  IN THE

                                     COURT' OF CRIMINAL APPEALS

                                                OF TEXAS




JAMES EARL PILAND                                    §
Petitioner                                    ,      i       IN THE 4th


VS.                                         =••'.:§          JUDICIAL DISTRICT COURT

THE STATE OF TEXAS                                   , .OF RUSK COUNTY, TEXAS
Respondent                                           §



                                 PETITION Km DISCRETIONARY REVIEW

TO THE HONORABLE JUDGE(s) OF SAID COURT:

       COMES NOW,       James Earl Piland, Petitioner, pro-se in the above styled and

raadbered cause, and respectfully files this Petition for Discretionary Review
pursuant       to   Rule    68.1,    T.R.A.P.      The        Petitioner would show the Honorable

Court the following:

                                     t* STATEMENT OF THE CASE

      On     the    evening of 21 April, 2003, the Petitioner and his wife discovered

that     their      son and his friend had been stealing money from them out of their

bedroom.       So     to   curtail    any   further          thefts, the Petitioner woke his son,

Tyler,       to help him put          a door on his bedroom.          During this time, a heated

argument began, leading to the Petitioner telling his wife to call the police.
                                                         j

In    the meantime         the    Petitioner went into a nearby woods in order to remove

himself from further altercations, and to calm down.

      It had already grown dark outside, end the Petitioner was barefoot.                  After
                                                     i

a    short    time the Petitioner heard several voices calling his name.                He heard

a    noise and a bright light was shined into his face, blinding him.                  The Peti-
                                                     r



tioner believed it was his son and Wesley Watkin, his son's friend.                     He turned



                                                   -iiv.
to walk further             into the woods,          but stepped on something sharp, and fell

down.         The bright light         was again shined into the Petitioner's eyes, and

a     voice    ordered      him    to "get up and come over here."         The Petitioner stood

up and         tried    to see who it was, because there were several people calling

him.      The    Petitioner's hands were in front of his eyes, trying to block the

light.         He was       told to put his hands down, and when he did, he was hit with

either a gun or flashlight.              These were the only things in the person's hands

that had hit            him.      At the same time, someone else began spraying something

in     the Petitioner's           face and eyes.     The Petitioner's vision went black, and

he     fell    against      his boat.      As the Petitioner walked towards his house, the

officer continued hitting him in the face, while the other officer kept spray

ing    mace     everywhere.        The Petitioner's son saw the officer strike the Peti

tioner        with his gun or flashlight and jumped on his back.                  The Petitioner

ran into his house for safety, and to clean mace out of his eyes and mouth.

E.M.S.    had        to be called, as the officer had sprayed the Petitioner's 11 year

old    daughter        in   the face, and needed her eyes flushed out.           At no time were

handcuffs       put     on Petitioner      nor did         the officers announce who they were.

Two    other     officers       were   called   in       to arrest Petitioner.   Officer Overtop

testified       that     Petitioner     offered    no      resistance when Petitioner was hand

cuffed.        The     other officer from another city, took me out of the house, then

yanked        the cuffs      up   behind    Petitioner's back, forcing Petitioner to bend

over     at    the     waist, hurting Petitioner's wrists, hands, and shoulders.           This

also was recorded on the 2nd video, taut was not shown to the jury.

      Officer     Loden claimed        I rushed at him out of the woods, but changed his

testimony when cross-examined to "a fast pace."                  He would also commit perjury*
                                                     i
stating he never               struck the Petitioner at all.        Then later admit stricking

the Petitioner          on the side of the face "3 or 4 tiroes."           (R.R. 4 at 151,153).



                                                   -2-
Note,    testimony from eyewitnesses           show he ailsovfstruck the Petitioner with

an    object between his eyes Loden then wrote up multiple charges against the

Petitioner      in    attempts to cover his felonious assault on the Petitioner that

Loden knew was witnessed             by others.      The Petitioner was then taken to jail

and charged with "assault against a public servants"               During pre-trial hearing

the trial judge asked the defense attorney if she was prepared to go to trial.

She stated         "no"   because   she and the prosecutor were working on a plea deal

due     to   the multiple charges.          But   the judge ignored her and set the case

for trial the next day, despite their being multiple other cases on the Docket

before the Petitioner's case.

      The Petitioner was tried and convicted by a jury.             Punishment was assessed

at    sixteen      (16)   years confinement in the TDCJ-CID.        A Motion For Appeal was
filed at trial.

     On 17 December, 2014, the        Sixth Court, of      Appeals of Texas at Texarkana

affirmed     the conviction.         On 1/22/2015 the Texas Court of Criminal Appelas

granted      the   Petitioner's     pro-se Motion For Extension of Time to file Motion

for     Petition For      Discretionary Review.        The time extension was until March

17, 2015.

     This timely filed Petition For Discretionary Review follows.

                               MO ORAL ARGDMERT IS REQUESTED

                            U. STATEMENT OF PROCEDURAL MSTORYo

1. The Petitioner appeared before t!he Fourth Judicial District Court of
Rusk County, Texas, on the charge of assault of a public servant on 2-18-2014.

The     jury found the Petitioner guilty, and assessed punishment at (16) sixteen

years    confinement      in   the Texas Department of Criminal Justice-Correctionar'

Institutional Division.

2. A     Motion      for Appeal     was   requested    at trial.   Defense Counsel filed a



                                              -3--
Direct Appeal             in the     6th Appellate       District Court of Appeals of Texas at

Texarkana.          The     Appellate     Court   affirmed    the   Petitioner's sentence on 17

December, 2014.           No Motion for Rehearing <eas filed.

3.    The     Petitioner      filed a        Motion   for   Extension of Time to file Petition

for Discretionary Review.             This was granted on 1/22/2015.

     This timely Petitioner's Petition For Discretionary Review follows.

                                        HI. GROUNDS FOR REVIEW

ISSUE 1 -Was the evidence factually and legally sufficient to support the
              conviction.                                                              ,-...•..

ISSUE 2 - Is the indictment so flawed that the jury convicted the Defendant

              of the wrong offense under the Texas Penal Codes? (R.R. A, at 163).

ISSUE 3 - Did         the    trial    judge abuse his discretion in his failure to allow

              Defense Attorney            to properly prepare for trial - denying the Peti
              tioner a fair trial with effective counsel?

ISSUE 4 - Was        defense       counsel    ineffective     for failure to file a Motion for

              Jury Instruction on a Lesser-Included Offense?

ISSUE 5 - Was defense counsel                 ineffective for her failure to investigate
              and    bring     to    trial    the Petitioner's version of the facts?      (See

              Brief for Appellant, pg. 12-14 Direct Appeal)

ISSUE 6 - Was defense counsel ineffective when she admitted she was ineffective

              at trial        due to trial judge's actions?          (See Brief for Appellant,

              pg. 12-14 (Direct Appeal))

ISSUE 7 - Prosecutorial misconduct - Prosecutor failed to give Defense Counsel

              full notice of enhancement                 of charge until a half hour prior to

              Voir Dire.           Then   it was faxed to her office, not given at trial.

              Was this prosecutor misconduct?

     JSOTE:    The Petitioner is not a licensed attorney and has no legal training


                                                   -4-
at    all.      The    Petitioner       therefore, prays this Honorable Court not hold him

to the       same     stringent    standards as a licensed, attorney pursuant to Wiggins

v. Proccnier, 753 F.2d 1318 (5th Cir. 1985); Hughes v. Bewa, 101                     S.Ct.   173

(1988); Haines v. Sterner, 92 S.Ct. 594 (1972).

     NOTE:     The    Petitioner    does     not have access to the Recorder's Record,:and

has    had to rely on the Briefs from Appellant Counsel to refer to page numbers

in record.

                             .    TV. ARGUMENTS AtP AUTHORITIES

ISSUE 1:       Was    the evidence factually and legally sufficient to support the

               conviction?

      In the case at bar, the charge instructs the jury to determine guilt based

on whether the Petitioner "did...cause bodily injury to Erad Loden, by striking

the     said    Brad    Loden     with    the .Defendant's fists while the said Brad Loden

was trying           to arrest     the defendant,        and the said Brad Loden was then and

there    a public servant, to wit: a police officer...acting,in lawful discharge

of    his    official     duty,    and     the defendant knew that the said. Brad Loden was

a public servant because the said Brad Loden was, wearing a distinctive uniform

and displaying his badge..."

      First,     note    the charge read to the jury does not conform to Texas Penal

Code     §     22.01(a), 22.01(b)(1), in that it has no reference to "intentionally,

knowingly, or recklessly" listed in the charge.

     The Court will note the incident took place in the dark.                  Loden nor Officer

wllson       identified    themselves,      nor      could   ANY    distinctive uniform or. badge

be     seen as        their uniforms       were dark blue.         Especially with a bright light

shined       into the     Petitioner's       face,    nor with the spraying of mace into his

eyes by officer Wilson.             ,

       Officer Loden       states the Petitioner swung with his fist hitting his arm.



                                                  -5-.
The Honorable Court must admit this act likely occurred NOT to assault Officer

loden,      but       to    get the light out of his blinded eyes or to stop the spraying

of mace           in thorn. (R.R;             4, pg. 19, 35, 38, 64).      The Petitioner supposedly

fled,     and        when    someone         caught hold.of his ^lirt, he knocked the arm of his,

captor      and fled             into .: his house.       (R.R. 4,. pg. 19-21, 35, 68).   Others, saw

Loden hitting Petitioner                      at the time.     Witnesses testified they saw Officer

Lcden hit the Petitioner between the eyes with his gun or flashlight.                        Officer

Lcden denies              this.      But then, he also denied hitting the Petitioner at all,

(R.R.     at 151);           but. then admits hitting him "3. or 4. times on the side, of the

face."         Yet      the Petitioner had an injury between his eyes on the upper part

of    his      nose       - the place where, the          witnesses testified they. saw. him hit the

Petitioner           with an object in his hand.               So the question before this Honorable

Court       is,      seeing       the   witnesses       did not see the "3 or 4 blows to the Peti-?

tioner's          face,     was,     by      Office    Loden's   own testimony, the Petitioner beat

on by Loden in the woods as alleged by the Petitioner?

     Pursuant to Texas Penal Cede § 9.31(c) (Vernon 2003),

        "(c)         The use of force to resist an arrest or search is justified:
             (1) if, before the actor offers any resistance, the peace officer
                   (or person acting                at his direction) uses or attempts to use
                  greater         force      than   necessary     to make the arrest or search;
                  and

               (2)    when and            to the degree the actor reasonably believes the
                  force      is     immediately necessary          to   protect himself against
                   the peace officer's                (or other persons) use or attempted use
                  of greater force than necessary."

      It' should also              be     noted, when arrested by the two other officer's, the

Petitioner had no handcuffs on either wrist, as testified to by Officer Wilson

and     Lcden.         (R.R. 4          at   19).     But defense counsel failed to call either of

those    officers           to     testify on this crucial issue.         A video was taken of this




                                                         -o-
arrest, but Was not shown.

       The   Petitioner        states     he did not know police were there until he'd been

sprayed      in the eyes            with mace.     Then he swung his arm to stop the pain and

ran     to   his     house     to    rinse out his eyes and get away from whoever had hurt

him.

      "A critical inquiry is whether, after so viewing the evidence, any rational

trier-of-fact         could     have      found   the essential elements of the    crime beyond

a reasonable doubt."            Emery v. State,         881 S.W.2d 702, 705 (Tx.Cr.App. 1994).

But     there is a problem here because the Jury Charge was insufficient.                First,

the "mens rea" is missing which,is in feet ah essential element of the charge.

       "In evaluating          the     legal sufficiency of the evidence, we must view the

evidence in           the    light most       favorable to the verdict and determine whether

any     rational       trier-df-fact       could   have      found the essential elements of the

offense beyond a reasonable doubt."                Jackson v. Virginia, 99 S.Ct. 2781(1979).

       "Where       appellate    attacks      legal    sufficiency    of the evidence, appellate

Court    must view only that evidence vfoich supports the verdict, however, where

appellant's          challenge       is   to factual sufficiency of evidence appellate court

must    consider       all     evidence.      Court     of   Appeals must weigh and eo&pare all

evidence in the record."              Ortiz v. Jones, 917 S.W.2d 770 (Tx.Cr.App. 1956).

       "Only    exception       to     sufficiency of evidence is if you show there was no

evidence       on    crucial     element     of the offense with which you were convicted."

Ea Parte Barfieia, 697 S.W.2d 307 (Tx.Cr.App. 1985).

   No "mens rea" was ever shown in the trial.

       Due process was denied                to the Petitioner, and as such, he is entitled

to a reversal of his conviction, and be afforded a new trial.

ISSUE 2.       Is    the    indictment      so flawed that the jury convicted the Defendant

               on the wrong? offense under the Texas Penal Codes?




                                                      ^7-
      During Officer Loden's testimony, ;he states the Petitioner resisted when

the     first       handcuff       was     locked on his wrist.    He then testified he told the

Petitioner          if he continued              struggling he would spray him with C.J. (roace).

Ee stated the Petitioner was net under arrest, so why come with a drawn weapon,

handcuff          the Petitioner,          or even use mace en him? He got struck on his arm

after macing the Petitioner.                    Probable reason was to get released so Petitioner

could rinse the.mace from his burning eyes.                    So, at best, the only true charge

that could              possibly    be     put upon the Petitioner was "resisting arrest", and

not     assaults.            Otherwise,    what    cause did Officer Loden have for adraittingly

striking          the    Petitioner        "3 or 4 times" in the face.    In all actuallity, the

Petitioner would' have been justified under § 9.31(c) Tx.Pen.Code in striking

back        in    self defense.           Especially     when witnesses saw Officer Lcden strike

him in the face, with an object in his hand.                   The only objects being his flash--

light and gun, as was witnessed by the witnesses.                     Also by Loden's own testi-

money.           (R.R. 4 at 151).

      If     an     arrest1 was being executed, then a charge of resisting arrest under

Texas Penal Code § 38.03(a) would be appropriate.

        "A person resists arrest by intentionally preventing or obstruct[ing]
        a    person he knows is a peace officer or a person acting in a peace
        officer's            presence     and    at his direction from affecting an arrest,
        search,         or     transportation of        an actor by using force against the
        peace officer or another."

      But,        in the case at bar, no Motion was filed by defense counsel to have

the 'Court          instruct       the jury on the lesser-included offense of resisting ar

rest.

      In     order       tc be entitled to an instruction en the lesser-included offense

of    resisting          arrest, there must be some evidence to permit a jury rationally

tc    find        that appellant is guilty only of the lesser, and not of the greater.



                                                       -8-
Therefore,       in   the    instant       case, there must be some evidence that Appellant

intentionally         prevented or obstructed his arrest by using force against offi

cer     [Lcden], •and that Appellant did not 'intentionally, knowingly, or reck

lessly cause bodily injury to [Loden]."                     Lofton v. State, 45 S.W.3d 649 (Tx.

CriiiwApp. 2001).

       "Court of Appeals analy2es lesser-included offenses by determining whether

there is any evidence in the record>fran any source to indicate that if defen

dant was, guilty, he was guilty only of the lesser offense."                        Lofton v. State,

Id.,    6     S.W.3d at 797.          "Anything more than a scintilla of evidence is suffi

cient to entitled a•defendant'to a lesser charge."                     Lofton, supra, at        799;

Bignall v. State, 887 S.W.2d                 21,    23     (Tx.Crim.App.   1994).      "Whether there

is     evidence    within        or   without       the defendant's testimony, which raises the

lesser      offense     controls       the    issue      of whether an instruction en the lesser

included offense should be given."                  Jones v. State, 984 S.W.2d          254, 257 (Tx.

Crim-App. 1998).

       "Although      it    is    clear      that    the issue of self-defense may be raised by

evidence'.other than the defendant's testimony, (See Smith v. State, 676 S.W.2d

584     (Tx.Crim.App.       1984),      it is equally clear that some evidence must show

that    defendant       reasonably        believed that force was necessary to protect him

self against unlawful force-of'another."                    Nethery v. State, 692 S.W.2d 686,704

(Tx.Crim.App. 1985);             Seed v. Stat®, 703 S.W.2d 380, 382 (Tx.Crim.App.                 _).
       That    evidence was           provided by witnesses seeing Lcden strike an unarmed

Petitioner between           the      eyes    with    an     object, AND by loden's own testimony

of     spraying    the Petitioner with gas and further testimony of him striking

the Petitioner 3 or 4 times in the face.

       "For a charge on a lesser-included offense to be given, there must be

some evidence from which a                    jury could rationally acquit the defendant of



                                                      -9-
the     lesser      included offense; the evidence must establish the lesser-included

offense as a valid alternative to the charged offense."                  Mathis v. State,     67

S.W.3d 918, 920 (Tx.Crim.App. 2002).

       "Either the defendant cr the State is entitled to an instruction on                   every

issue       raised by the evidence, whether produced by the State or the defendant,

and    whether it            is weak, strong, impeached, or contradicted; it is then the

jury's      duty        to determine      whether the evidence is credible arx3 supports the

lesser-included,offense."              Hampton v. State, 66    S.W.3d    430 (Tx.App.-Houston

[1st Dist]          2001).      "The    Court of Appeals held that because the evidence in

this    case       was subject       to two possible interpretations - one interpretation

supporting         a conviction of assault and the other for resisting' arrest - then

appellant         was     entitled   to    an   instruction on'the lesser-included offense."

Lofton, supra, 45 S.W.Sd at 653.

       "Reversal        is   required if the error resulted in some harm to the accused,

•some' meaning" 'any'*.'         Jimlnaz v. State, 953      S.W.2d    293, 299 (Tx.App.-Austin

1997, pet. ref'd).            "If the absence of the lesser-included offense instruction

left    the       jury only with the options either to convict the defendant of the

charged offense or tc                acquit him ' fas the case at bar], a finding of harm

is    essentially automatic because the jury was denied the opportunity to con

vict the defendant of the lesser offense."                Iofton, 6     S.W.Sd   at   800;    see

also: Hi&chell v. State, 807 S.W.2d 740, 742 (Tx.Crim.App. 1991);                     Jiminez,

supra, at 299 (citing Saunder v. State, 913                S.W.2d 564,    571 (Tx.App.-Corpus
Christi,         1994).      "Harm is presumed because of the possibility that the jury,

believing         the defendant        to have coffaritted seme crime but given the option

only to convict him of the greater offense, may have chcsen to find him guilty

of that, greater offense,                 rather than tc acquit him altogether, even though

it    had    a     reasonable     doubt     that   he really committed the greater offense."



                                                   -10-
 See Saunders, supra, at 571; Jindnez, supra,                       at   300.       "we cannot   say that

 the district       court's            refusal     to    instruct    the jury on the lesser-included

 offense of resisting arrest did not result in some harm to appellant."                           Lofton,

 6 S.W.3d at 800.
                                                                                r



       Failure     to     properly instruct the jury on "mens rea" and present a proper

 indictment, including the lesser-included offense of resisting arrest violated

.due    process of            law.      A reversal and a new trial is warranted due to a VOID

 indictment.       (Rule 60(b), F.R.A.P.)

 ISSUE 3:    Did        the    Trial      Judge    abuse his discretion in his failure to allow

             both the prosecutor                  and     defense   counsel to properly prepare for

             trial,       thus denying the Petitioner a fair trial with effective
             Counsel?


    "Broadly stated, the accused is entitled to a trial on the facts, in accor

 dance with the law and the evidence in the case, with an opportunity to defend

before      an    unbiased           tribunal,    and     free   from any extraneous influence that

might be to his or her prejudice."                      Maxwell v. Sheppard, 86 S.Ct. 1507 (1966).

       "State is        free to regulate court procedure in accordance with its own
conception of policy and fairness without infringing on 14th Amendment, unless

 some fundamental principle of justice is violated."                        Snyder v. Commonwealth of

 Massachusetts, 54 S.Ct. 330 (1934).

    In the instant case at bar, the Trial Judge asked the Prosecutor and Defense

 Counsel     if    they       were      prepared    to go to trial.       The Prosecutor stated they

 were ready.      The Defense Counsel stated they were not ready, as the prosecutor

 and she had been working out a plea deal, due to the multiple other charges
 connected       with    this case.         (Officer Loden had also brought charges of public

 intoxication       (Petitioner was on his own property), resisting arrest (lesser-

 included    offense),           threat     of    retaliation,      aggravated assault, and assault



                                                        -11-
of public servant (for supposedly tearing his shirt).(BOTE: If Petitioner
tore his shirt, why was it not testified to at trial, or shown as evidence?)).

The Trial Judge then ordered                 the case set for Docket the very next day.
By his actions, the Petitioner went to trial with an attorney who admittedly
was not prepared to defend her client.

    Thus>     the Petitioner was denied effective assitance at trial by the Trial

Judge, which denied him due process and equal protection.              "That    " a ' person
who happens to be a lawyer is present at trial alongside the accused, however,

is not enough to satisfy the constitutional command."             Strickland v. Washing

ton, 104 S.Ct. 2052 (1984).

    "Actual, or constructive              denial   of assistance of counsel altogether is

legally presumed to result in prejudid^;."4?           Id., at 2053.

    "Right     to effective assistance of counsel is recognized not fee it& own

sake, but because of the effect it has on the ability to the accused to receiv
a fair trial."       U.S.C.A. 6; Creole v. U.S., 104 S.Ct. 2039 (1984).

    "Mere     pro    Forma      appearance of counsel does not amount to the assistance

of counsel         and   due    process   of law guaranteed by federal constitution and

it does not afford the right of being heard by...counsel guaranteed by state

constitution.        Such unconstitutional         provisions require that counsel render

reasonably effective assistance."            Ex Parte Harris, 596 S.W.2d       293 (Tx.Crim.

App. 1980).

    Thus,     by    the Trial Judge's         refusal to allow defense counsel more time

to prepare her client's case for trial, Petitioner was denied effective assis

tance of counsel.              Mflffl*' In the Appellate Brief during the direct appeal,
the defense counsel wholeheartedly admits she was ineffective.

   The      conviction     should be reversed, and the Petitioner be afforded a new

trial in a different court,                as the trial judge has shown bias against the


                                               -12-
Petitioner      or    his   attorney by refusing a continuance, violating due process

and effective assistance of counsel to the Petitioner.

ISSUE 4:      Was    defense    counsel     ineffective   in   failing to file a Motion for

              Jury Instruction on Lesser-Included Offense of Resisting Arrest?

      "Under    certain,       limited    circumstances, a criminal defendant will be en

titled       to a    jury   instruction on a lesser-included offense of the offense

charged."      Mathls v. State, supra, at 925 (Tx.Crim.App. 2002).

      "The applicable test is referred to as the Royster-Rousseau test, or some

times,     as the Royster-Aguilar test."          (See Royster v. State, 622       ,      S.W*2d

442> 444 (Tx.Crim.App. 1981); Aquilar v. State, 682 S.W.2d 556, 558 (Tx.Crim.
App. 1985); Rousseau v. State, 855 S.W.2d 666, 672 {Tx.Crlm.App* 1993).
      "The    test has      two steps: (1) first, determine whether the offense is a

lesser-included offense           of the offense charged;         and (2) second, evaluate

the    evidence      to determine        whether there is some evidence that would permit

a jury rationally to find the defendant is guilty only of the lesser offense."

Mathls, supra, at 925; See also: Rickens v. State, 165 S.W.3d 675,                      679 (Tx.

CrinuApp. 2005).

   "Case law from the Court of Appeals indicates resisting arrest is a lesser-

included offense of assault on a public servant."               See: Preston v. State,        700

S.W.2d 227, 230 (Tx.Crim.App. 1985); Sutton v. State, 548                S.W.2d        697,   699

(Tx.Crim.App. 1977)(stating that "resisting arrest is a lesser-included offense

of assault on a public servant.").            Lofton v. State, 6 S.W.3d      796       (Tx.App.-

Austin 1999).          "...relevant test is whether the lesser offense could be pro

ved by the same facts necessary to establish the offense charged*"                 Picken,     .

supra, at 679;        Jones v. State, 586 S.W.2d 542, 545 (Tx.Crim.App. 1979).
      Now, the Officer, Loden, stated they were attempting to handcuff the Peti*»

ticner.      Another Officer,       Wilson,     sprayed Petitioner in the face with mace.



                                               -13-
The Petitioner         "fled"    and he       tried       to grab the Petitioner by the back of

his     shirt when his arm was struck by the Petitioner.                     Pursuant to Tx.Pen.

Code,     § 4.31(c), the Petitioner was justified in his actions, as he was being
maced,     beaten,     and felt threatened by the excessive force used against him.

Is    it not rather         suprising after Loden had struck Petitioner "3 or 4 times

on    the side       of the face" and between the eyes with an unknown object, that

the     Petitioner     only    struck      Loden's    arm?     After all, Loden was assaulting

the Petitioner, as Loden testified to (R.R. 4 at 151) and as other eyewitnesses

testified to.

      "In order to be entitled to an instruction on the lesser offense of resis

ting     arrest,      there    must   be    some     evidence to permit a jury rationally to

find the appellant is guilty only             of     the    lesser,   and   not   of the greater.

Therefore,     in    the    instant case, there must be some evidence that appellant

intentionally prevented or obstructed his arrest by using force against Officer

[Loden],     and     the   appellant did not 'intentionally, knowingly, or recklessly

cause bodily injury to [Loden].'"             Lofton, 45 S.W.3d 649.

      "Court of appeals analyzes lesser included offenses by determining whether

there is any evidence in the record from any source to indicate that if defen

dant was guilty, he was guilty only of the lesser offense,"                   Lofton, 6 S.W.3d

at 797.      "Anything more than a scintilla of evidence is sufficient to entitle
a defendant to a lesser charge."             Id., at 799; Biqnall, supra, at 23. "Whether
there    is evidence,         with or without the defendant's testimony, which raises
the lesser offense controls the issue of whether an instruction on the lesser
included offense should be given."             Jones, supra, at 257.
      "The evidence may be proffered by the State or the defense; the evidence
may be strong or weak, unimpeached or contradicted."/ (See Rousseau, supra, at
672; Bell v. State, 693 S.W.2d 434, 442 (Tx.Crim.App. 1985). "So long as



                                                   -14-
there is some evidence which Is:'directly germane' to a lesser included offense

for     the   fact   finder to consider, then an instruction on the lesser included

offense ie warranted."         See; Skinner v. State, 956          S.W.2d 532, 543 (Tx.Crta.

App. 1997); cert denied, 118 S.Ct. 1526 (1998).

       [R]eversa1     is required if the error resulted in some harm to the accused,

•sob®' meaning 'any'." Jlminez, supra,                at 299     (Tex.App.-Austin 199?, pet.

ref*d).       "If    the   absence   ©f    the     lesser included offense instruction left

the     jury only with the options either to convict the defendant of the charged
offense or to acquit him [as in the instant case at bar], a finding of harm

i© essentially automatic because the jury was denied the opportunity to con

vict the defendant of the lesser offense."               Lofton, 6    S.W.3d   at     800;   see

also: Mitchell, supra, at 742.(Tx.Crim.App. 1991); Jimlnes, supra, at 299 (ci
ting Saunders v. State, 913 S.W.2d 564, 571 (Tx.App.-Corpus Christi 1994).
       "Harm is presumed because            ©f the possibility that the jury, believing

the    defendant     to have ccasmitted seme crime but given the option only to con

vict    him of the greater offense, may have chosen to find him guilty of that

greater offense,           rather than      to acquit him altogether, even though it had

a reasonable doubt that he really committed the greater offense."                   See: SuaajT-'
decs, supra, at 571; Jiminez, supra,               at 300.    We cannot say that the district

court's refusal to instruct the jury on the lesser included offense of resis

ting arrest did not result in some harm to appellant."                 Lofton, 6 S.W.Sd 800 .

      The failure to give the jury a jury instruction on the lesser-included off#:

ense, despite having all the essential elements that supported such an instruc
tion     was ineffectiveness of            trial    counsel    for her failure t© investigate

and question eyewitnesses.                Likely    this was caused by the Judged failure

to postpone the trial for the trial counsel to make the required pre-trial
investigation.



                                                 -IS-
      As    such,    due    process        and effective assistance of counsel was denied by

defense      counsel      and    the       trial judge, and a reversal of this conviction and

anew trial is warranted in this case.

ISSUE 5:      Was    Defense     Counsel           ineffective    for   her failure to investigate

              and bring to trial the Petitioner's version of the facts? (See Appel

              late Brief for Direct Appeal, pgs. 12-14).

      As    can be seen by para. I Statement of the Case, the case the jury heard,

and para. I are quite different.                  Yet witnesses that testified for the defense

testified what            is. shown        in    para. I.   Yet defense counsel did not have the

Petitioner      testify,        nor    submit a Motion for Jury Instruction on the Lesser-

Included Offense of Resisting Arrest.                       She failed to make an adequate inves

tigation and believe her client's                      version Of the facts of the case, which

was wholely supported by eyewitnesses.

      "Although      the    fate      of    a criminal defendant is determined at trial, the

cause of that trial, the cause of                  that trial     can    be decisively affected by

actions of defense counsel in preparing the case."                      Washington v. Strickland,

693 F.2d 1243 (5th Cir 1982).

      The   Petitioner       alleges        failure to render an adequate investigation into

the case, and        to    believe the Petitioner and eyewitness accounts of the facts

of    the case.        This can be shown by the fact that even prior to trial a plea

deal was being negotiated                   to    settle    other charges being filed by Officer

Loden,      the person who in fact committed aggravated assault on the Petitioner.

Pictures and         statements        supported      the Petitioner's       version of the facts,

yet not even a             Motion      for the jury instruction on the lesser offense was

filed.

     "When a defendant alleges that his counsel's failure to investigate preven

ted   counsel       from making an informed tactical choice, he must show that know-



                                                     rl6-
.ledge of the investigated evidence would have altered his counsel's decision,

and     that the basis               underlying     his    counsel's tactical choice to pursue or

forgo a          particular         course would have been invalidated, in order to satisfy

prejudice prong of ineffective assistance of counsel claim."                     Johnson v. Lamb,

179 F.3d 352, cert.denied, 120 S.Ct. 522 (1999).

       As has been testified to at trial by Rebecca Piland, Wesley Watkins, and

Tyler       Chiasson,         all    the     actions committed     by the Petitioner were in fact

"self-defense         maneuvers"           to protect himself from being beaten upon by Lcden.

(R.R.      4     at. 92-94, 106, 120-122, 125, 129-133, 142-147)              Had defense counsel

investigated . into the                Petitioner's version of the facts, she would have not

only, filed for Instruction on Lesser-Included offense, but also sought crimi

nal     charges against Lcden for police brutality.                   Instead the defense counsel

was plea bargaining with the prosecutor on dropping the other charges trumped

up by Loden and Wilson in order to cover their felonious acts.

      "If      there is only            one     plausible line of defense, the court concluded,

counsel        must   conduct a 'reasonable substantial investigation* into that line

of defense, since there can be no stratigic choice that renders such an inves

tigation unnecessary.                  The      same duty, exists if counsel relies at trial on

only       one    line    of       defense,     although others are available.    It must include

'an independent               examination of the facts, circumstances, pleadings, and laws

involved.'"         Strickland, supra, at 2061 (quoting Rommel v. Estelle, 590              F.2d.

103, 104 (5th Cir 1979).

      It    should       be    noted       by   the Honorable Court that two incidents occurred

just prior to             the Voir Dire.            First* by defense counsel's own admissions,

"Jury      selection          in    this   case    was    on a Monday morning, 18 February, 2014."

Attorney Biggs            filed a Motion for continuance early that morning and argued

it    before Voir         Dire began.             Attorney Biggs informed the Court she was not



                                                      rl7-
ready for trial               at -that     time.        R.R. 3 at 7.     She informed the Court that

Appellant had been               arrested        the previous month for a new felony charge and

that she believed               the    respective parties would be able to settle the cases

after    the      new    case     was     filed    in.     Id.   She informed the Court that Asst.

D.A. Wavrosa            and    she had       spoken       the previous Friday afternoon at about 3

p.m.,     and until that               time, she had been unaware the State intended to take

Mr.     Piland's        assault      on   public servant case to trial on Monday the 18th.

Id.     at 8w       She argued that it would be efficiency and judicial economy (on

the part of the. court)                   and     in the best interest of Mr. Piland to wait on

a possible         trial       in the      assault on public servant case until the new (and

other)      cases was filed in.            Id.     She pointed out that several other attorneys

(including        the    writer)       had      trial cases that were set before hers, and thus

she was        baffled        as to why Appellant's case was going to trial this day when

other,      older1 cases         were     listed on the docket before Appellant's case.           Id.

The Court denied               her     Motion.         Id. at 9."     (Brief for Appellant for Direct

Appeal, App. A, pgs. 6-7).

      The second issue was that just before Voir Dire the defense attorney was

notified,       when the prosecuting attorney asked the jury if any of them could

not, in good conscience, sentence a person to twenty years in prison.                         Having

been led to believe her client was facing a 3rd degree felony with no enhance

ments,      defense counsel objected to this question.                    Both attorneys were called

to    the    bench,      and      in    conference during Voir Dire the prosecuting attorney

notified       defense        counsel     of     his    intention to seek enhancement.     He stated

before      the    trial       judge      that    a copy of the enhancement paragraph had been

faxed     to    defense        counsel's       office at 8 a.m. that morning.        Voir Dire began

at 8:30 a.m.        The trial judge allowed it.                  '<

      Thus, in all honesty, the Petitioner, states his defense counsel's ineffec-



                                                        -18-
tiveness       was       due    to misrepresentations by the Asst. District Attorney, and

the     bias    shown 'by          the      trial judge; Judge Cossett.             In fact, the trial was

so    rushed        that       even   the indictasnt before the Court was without 'mens rea"

arid added last minute enhancements.                        (R.R. 4 at 164)..

       "Criminal         defense counsel must have firm command of facts of case as well

as    governing          law before he               can    render reasonably effective assistance of

counsel."       Ex Parte Welborn, 785 S.W.2d 391 (Tx.Crim.App. 1990).

      Defense        Counsel       had not even read the entire indictment to see if it met

the     irdnimum      standards        of      the    law.          Thus/ she was ineffective for failure

to    object        to     the defective indictment even before this case went to trial.

The ' State         would      have been forced to either dismiss the indictment and start

over,     or    attempt         to    amend        and interleniate the indictment, giving defense

counsel     added          time to adjust to the added enhancement paragraph and investi

gate further into the case.                    "It is the duty of the lawyer to conduct a prompt

investigation • of             the    circumstances           of      the case and to explore all avenues

leading        to    facts      relevant           to the merits of the case and the penalty in the

event of conviction.               The investigation should always include                  efforts     to

secure     information           in    the possession-of the prosecution aixS .law enforcement

authorities.             The    duty     to    investigate            exists   regardless of the accused's

admissions or             statements          to     the    lawyer of facts constituting guilt or the

accused's desire to plead guilty."                         Rcaapdlla v. Beard, 125 S.Ct. 2456 (2005).

      "When determining whether defendant received effective assistance of counsel

in violation of the 6th Amendment, benchmark must be whether counsel's conduct

so    undermined          proper functioning                of   adversarial process that trial cannot

be relied on as having produced a just result."                            Rogers v. Israel, 746      F.2d

1288 (     ,Cir 1984);            Strickland, supra, at 2064.
ISSUE 6;       Was       defense      counsel        ineffective when she, herself, admits she was

               ineffective at trial due to Trial Judge's actions?


                                                           • -19-
     "First    defendant        must     show that counsel's performance was deficient, re

quiring showing          that counsel          made       errors    so serious that counsel was not

functioning        as the 'counsel' guaranteed defendant by the Sixth Amendment,.."

Id.> at 2052.                                                       ,

     The    Petitioner , has           shown     that     defense counsel failed to even read the

indictment      against her client, which had failed to give mandatory "mans rea"

in     the charge brought              against    her client.           Then she failed to Motion for

Jury Instruction          oil    the Lesser-Included              Offense of Resisting Arrest.       The

Jury    would ,most      probably had found the Petitioner guilty of only the lesser

offense when they heard the testimony from defense witnesses.

     "...second,        defendant       must     show      that    deficient performance prejudiced

the ,defense       by    shewing        the counsel•s errors were so serious as to deprive

the defendant of a fair trial; a trial whose result is unreliable."                          Id.

       "Harm is     presumed, because of                 the possibility that the jury, believing

the defendant to have committed some crime but given the option only to convict

him of the greater offense, may have chosen to find him guilty of that*greater

offense, rather than to acquit him altogether, even though it had a reasonable

doubt that he really c<»smitted the greater offense."                        See Saunders, supra,     at

571' Jiminez, supra, at 300..              "We cannot          say that      the   [defense attorney's

failure to request the trial judge] to instruct on the lesser included offense

of resisting arrest did not result in some harm to appellant."                         Lofton, 6 S.W.

3d at 800.

       "Counsel,    however,       can    also     deprive a defendant of the right to effec

tive    assistance of counsel simply by failing to render 'adequate legal assis

tance'"       Strickland, supra, at 2064; Cuylcr v. Sullivan, 100                    S.Ct.   at    1716,

1719.

     The   Petitioner       has met both prongs of the Strickland standard as set out



                                                        -20-
