FILED |N

RECEVED|N
The §i_a)un o'f /-\ppeals ` ' ‘ The Coud Of Appea'is
blxth D\s’:rlct ` SiX`th DiStrl`Cf
MAR 2 i)` 2015 IN THE coURT oF APPEALS MAR 2 6 2015
q- . SIXTH DISTRICT
xexfan~<ana, Texas \ ..
Debra Autrey, C|erk TEXARKANA,TEXAS ,Texa"'*<&ma\, ~Texas

beder §F<.. /Auydrr@y, ©fler¥r<

 

MARK ANTHONY YOUNG/
APPELLANT/
NO. 06-14-00086~CR

V.
APPEAL IN CAUSE NUMBER 29/236
§IN THE 354th JUDICIAL DISTRICT

THE STATE OF TEXAS' COURT OF HUNT COUNTY,TEXAS.

APPELLEE,

HONORABLE RICHARD A. BEACOME JR.

 

 

'k`k*~k*~k~k~k~k~k~k***~k~k*** RESPONSE TO lANDERSI BRIEF ****'k‘k*k*~k~k***~k~k*~k~k*

 

TOZTHE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Comes now MARK ANTHONY YOUNG/Appellant,pro se and in forma
pauperis and submits this RESPONSE to 'Anders' brief filed by

appellate attorney Jason A. Duff.

STATEMENT 'OF THE CASE

 

This appeal is from the judgment and sentence in a criminal
case from the 354th Judicial District,in Hunt County,Texas;Appell-
ant was found guilty and assessed a sentence of 50 years in TDCJ
on May l,2014 by the Hon. Richard A. Beacom,Jr. Appellate attorny/
Jason A. Duff,filed an 'Anders' brief in this cause on January
12,2015,appellant's pro se response was due on February l7,2015.
`Appellant filed a motion for extension of time to file response/
which was granted on February lO,ZOlS,making the new deadline
for filing a response March 19,2015. On February ll,2015 this Court
granted appellant the opportunity to review the entire file/inclu-
ding a digital copy (DVD) of a surveillance video played at trialy
On February 18,2015, appellant filed his second motion for exten-
sion of time/due to a lock down at the unit and the new evidence
that was discovered on the (DVD). Appellant does however file

his response to the 'Anders' brief on March 1912015,

 

YOUNG'S RESPONSE page '2

>\'*****************SPECIAL STATEMENT TO THE§,,COURT*****************

 

Appointed attorney on appeal Jason A. Duff/ claims he
“diligently reviewed the entire record and the law applicable
thereto%fand,inmhis:opinion the appeal is without merit and

wholly frivolous".

Appellant will briefly and respectfully point out Mr. Duff!s
apparent definition of diligence.Appellant does belive that this
mistake/is just that,a mistake.However,if Mr. Duff's dilligence
is lacking on something this simple/this Court can not say Mr.

Duff was diligent in his "review" of the "entire record".

ln Mr. Duff's certificate of counsel he claims he was appointed
on this appeal "(for Jessica Nance)". He then claims "(She)“ has
diligently reviewed the entire record".

Mr. Duff later in his 'special statement to the Court' claims

"(She)" was represented by competent counsel...

Appellant only brings Mr. Duff's diligence into question because
of the evidence appelant discovered reviewing the "record".

Appellantswill elaborate more on this in his response.

 

YOUNGTS RESPONSE page 3

lSTATEMENT oF THE FACTS

 

'On`May l6,2013 an assailant robbed the Circle G convenience
store in Greenville Texas (RR 6 p.9+ll)% Carolina Ali testified
the assailant pointed a gun at her)which caused her fear. At trial
a video was introduced that shows a person that robbed the store.
Howeverythe part of the video that was played did not show the
persons face.(State's video Exhibit l 4:55).

Originally appellant plead guilty to the robbery.(RR 4 p.5),
and waived a jury trial (RR 4 p.5).

In a later hearing the trial court rejected appellants plea,`

becauseapgdjant stated he did:not do the crime.(RR 5 p. 3-4).

Appellant indicated that he did not feel he was geting help
from his trial attorney (RR 3 p. 9). Appellant thought he was
doing what his attorney wanted him to do by pleading guilty (RR
3 p. 9).

The trial court found.appellant guilty and gave a 50 year

sentence in TDCJ.(RR 6 p. 98).

 

‘l RR stands for Reporters Record followed by volume number then page number.

 

YOUNG'S RESPONSE page 4

*~k~k*~k~k~k~k~k***‘~k*~k~k***~)ARGUABLE POINTS FOR APPEAL***k'~k~k**"k"k'k~k*k*~k***~k*~k

 

POINT ONE: INEFFECTIVE ASSISTANCE OF COUNSEL

 

FAILER TO INVESTIGATE

 

 

 

TRIAL COUNSEL FAILED TO REVIEW THE SURVEILLANCE
VIDEO FROM THE CIRCLE G CONVENIENCE STORE/IN ITS
ENTIRETY,WHICH SHOWS A CLEAR PICTURE OF TEH ASS-
AILANT'S LOWER FACE,REVEALING ALL HIS WHITE
TEHHL

POINT TWO: PROSECUTORIAL MISCONDUCT

 

WITHHOLDING BRADY MATERIAL

 

 

 

PROSECUTOR PORPOSELY STOPED THE SURVEILLANCE VIDEO
AT TRIAL,TO WITHHOLD FROM THE FACT FINDER THAT
SGUKWE(IHERJHN§APHIJAMFCGMHTTI)TWEROHIRY.

POINT THREE:; ACTUAL INNOCENCE

 

ACTUAL INNOCENCE

 

 

 

BECAUSE A SURVEILLANCE VIDEO SHOWS SOMEONE
OTHER THAN APPELLANT COMMITTING THE ROBBERY
APPELLANT IS ACTUALY INNOCENT OF THE CRIME.

POINT FOUR: LEGAL SUFFICIENCY

 

'LEGAL sUFFIcIENCYrv

 

 

 

THE EVIDENCE IS LEGALLY INSUFFICIENT TO
&SUPPORT THE CONVICTION.

 

YoUNG's RESPONSE page ` 5

~k'k~k'*k*~k~k*~k~k~k'k'k*'k'k*********ANDERS BR]'_EE.*****'k~k*'k~k~k~k'k~k***~k*~k~k****~k

;c`*~k*~)_c**~k**~k*~k*;
;LUHBJQREVIEW f
*#*************

After attorney files proper Anders brief and def-
endant is afforded opportunity to respond,Court of Appeals,not
attorney/must conduct its own investigation of the recored to dis-
cover whether there are arguable grounds for relief and/if grounds
are deemed arguable/Court must abate appeal and remand case to
trial court with orders to appoint other counsel to present those
and any other grounds that might support appeal:counsel filing

frivolous brief must be allowed to withdraw. Wilson v. State, 955

S.W. 2d 693, (Tex.App¢-Waco 1997). See also U.S.Const. Amend. 6.

The Dallas Court of Appeals hold "the purpose of a pro se
response to an Anders Brief,is to raise sufficiently any point
the indigent appellant choses to bring to the attention of the
Court and thereby obligate the appellate Court to proceed, after
a full¢examination of the recore,to determine whether the points
raised are wholly frivelous or are arguable on their merits. If
the Court determines the points aresarguable points,it must,
prior to decision/afford the indigent the assistance of counsel
to argue the appeal.Because the pro se response of appellant is
not a brief with in the contempation of rule74(f),the requirements
of rule 74 do not apply/and we so hold". Henry v. State, 948
S.W. 2d 338/340 (Tex.App.-Dallas 1991 no pet). The response should
identify for the Court those issues which the indigent.appellant

'believes' the Court should consider in deciding whether the case

 

YOUNG'S RESPONSE page 6

presentssany meritorious issues. Henry, 948 S.W. 2d at 341.

*'k~k~k~k********************RIGHT TO APPEAL*******'k******'k~k~k**~k*****

;**~k~k‘k***~k~k~k*~k***~k;
f LEGALI&NIEW f
*******************
Under Code of Criminal Procedure Art. 1.0051,

( ,

fRight to Represontation by Counsel),(d)(l), "on appeal to the

Court of Appeals".

The Courts have explained that while a defendant in a criminal
case does not have a constitutional right to appeal,the right of
appeal is derived from statute,by enactment by congress and state
legislatures,therefore,the right of appeal is derived from the
equal protection and due process clauses of the United States
Constitution# accordingly/it follows that a defendant in a criminal
accusation,throught the due process and equal protection clauses,
has a right to appeal and therefore/the effective assistance
of counsel on appeal.

In Denson v. Ohio, 109 S.Ct. 346 at 352,488 U.S. 75,85 (1988),
asserted,that the "...need for forceful advocacy does not halt as
the legal proceeding moves from trial to appeal.Both stages of the
prosecution,although perhaps involving unique legal skills/require
careful advocacy to ensure that rights are not fore gone and that
substantial factual and legal arguments are not inadvertantly
passed over.Further,In Evitts v. Lucey, 469 U.S. 387,105 S.Ct.

830,83 L.Ed 2 821 (1985)/the Court opinioned thati"in bringing

 

YOUNG'S RESPONSE page 7

an appeal as of right from his conviction/a Criminal defendant
is attempting to demonstrate the conviction with its consequent

drastic loss of liberty is unlawful.

~POINT ONE

INEFFECTIVE ASSISTANCE OF COUNSEL

*****************;
LHIH.SHBDNH) wl

****************X;
The Sixth Amendment to the United States Cons-

>(~>('>(~>(~>(-

titution guaranteessa criminal defendant the_right to the effec-
tive asistance of counsel. U.S. Const. Amend. VI. A appellant who
hseeks to overturn his conviction on the ground of ineffective ass-
istance of counsel must prove his entitlement to relief by a
preponderance of the evidence. James v. Cain, 56 F.3d 662,667
(5th Cir. 1995).

Appellant must show that "counsel's representation fell bellow
an objective standard of reasonableness,"with reasonableness
judged under professional norms prevailing at the time counsel

rendered assistance. Strickland V. Washington, 466 U.S. 668,688,

 

104 S.Ct. 2052, 2065,80 L.Ed 2d 864 (1984). The standard requires
the reviewing court to give great deferance to counsel's prefor-
mance,strongly presuming counsel exercised reasonable processional
judgment.Id. at 690. A criminal defendant is entitled to reasonably
effective assistance. Boyd v. Estelle, 661 F.2d 288,289 (5th Cir.
1981);Rubio V. Estelle, 689 F.2d 533/535 (5th Cir. 1982);Murray v.

Ma io, 736 F.Zd 279 (5th Cir. 1984).Secondly,the appellant

 

YOUNG'S RESPONSE page 8

"must show that there is a reasonable probability that,but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a prob-
ability sufficient to undermine confidence in the out comet

Strickland/ 466 U.S. at 694.

POINT ONE
FAILER TO INVESTIGATE

TRIAL EVIDENCE:

Trial counsel,Chris Castanon,failed to review the
surveillance video fromthe Circle G Convenience store,in its
entirety/which shows a clear picture of the assailant's lower face,
revealing all his white teeth.

One of the essential elements of this case is outlined under
Tex.Pen.Code ANN §29.03(a)(2), "uses or exhibits a deadly weapon".
(Vernon 2003).

In this case the victim Carolina Ali (Ali),testified at trial
appellant pointed a gun at her,(RR 6 p.l3-l5).Appellant made her
put the stores money in his plastice bag/(RR 6 p.13-15). Ali
identified appellant as the assailant who robbed her using a gun.
(RR 6 p.l5-16). Ali was the only person at the store at the time
of the robbery.(RR 6 p~ 8) and therefore/the only eye witness/
evidence the state had against appellant. Ali later made the det-
ermination-that she could identigy appellant after she examined
a series of photographs provided to her by the police.(RR 6 p.21-22).
Ali stated she was able to see the assailants eyes,nose,mouth,

ears and forehead.(RR 6 p. 25). Ali claimed she was 99 precent

 

YOUNG'S RESOPNSE pages 9

sure she knew the assailant and picked appellant out of a lineup.
(RR 6 p. 32i. However,Ali on cross examination claimed she was
sure she had never watched the video surveillance from the day
of the reobbery.(RR 6 p. 28),but on direct she claimed she and

the state's attorney looked at the video.4

v_At trial a video wasLintroduced that shows a person (not app-
ellanti entering the victim's convenient store carrying a hand
gun.(State's Exhibit l at 4:55). The state stoped the video
playing before the end of the robbery,therefore/the factfinder did
not get to see the face of the person holding the gun and robbing
the store.Trial counsel also had this video and did not review
it completely or just conspired with the state to get a conviction.
Agter this Court gave appellant access to the (DVD) appellant and
TDCJ staff} Tami Beard and Krystal Taylor,reviewed the video
completely/were they witnessed the assailant smile at Ali at the
ending of the video. The smile shows assailant has all his teeth
and were very white.(appellant does not have all his complete
teeth). Had trial counsel fully investigated the video,it would
have shown appellant was innocent at trial.

Moreover,Ali testifyed the appellant was a repeat customer

(RR 6 p. 16) she recognized him as he walked in to rob her (RR
6 p. l6),appellant came back three days after the robbery (RR
6 p. l7),and ninety five percent of there customers are African

American.(RR 6 p. 24). No video was shown at trial/were it

captured appellant before the robbery/during the robbery or

 

YouNG's RESPONSE page 10

three days after the robbery/as Ali claims. TH: 1inr

The line up,appellant does not make this a point of error
on it's own,but he could because it was very suggestive/he only
makes this claim to show the problem of trial counsel's failure
to investigate the video.

Mrs. Ali stated appellant was a customer.(RR 6 p. 16).Mrs.
Mukhida (daughter) stated appellant is a customer.(RR 6 p.44).Mr.
Mukhida stated appellant was in the store too many times to give
a specifice number.(RR 6 p.50),and that appellant was such a good
customer that he gave appellant a credit line at the store-(RR
6 p. 50¥52). The only customer in the police line up was the
appellant/who was a repeat customer with a credit line at the
store.This should call into queston if Mrs. Ali,remembered appellant

as the assailant or as her husband stated a good paying customer

with a credit line at his store.

Trial counsel had in his possession the video that proves
appellant was not the assailant,in which would contradict Ali's
testimony and the police line up,and did not investigate it fully
and present it to the fact finder.

Adefendant is entitled to have trial counsel present critical

 

’corroborative defense evidence.Holms V. S.Carolina, 547 U.S 319

324 (2000);Davis v. Alaska, 414 U.S. 308,317 (1974) Bryant v. Scott,
28 F. 3d 1411,1415 (5th Cir. 1994). The Supreme Court in Davis,

has made clear that the erroneous exclusion of critical corrobora-
tive defense evidence may violate both the Fifth Amendmant due

process right to a fair trial and the Sixth Amendment right to

 

YoUNG's RESPONSE page 11

present a defense.Appellant has meet both prejudice and perfor-
mance prongs of Strickland v. Washington, 466 U.S. 668 (1984).
Because applicant is not the assailant on the video (DVD), a reas-

onable jurist could differ from the state courts finding of guilt.

POINT TWO

PROSECUTORIAL MISCONDUCT
:*****~k********ik;

n In determining whether evidence that the gov-
ernment failed to disclose to defendant satisfied "materiality"
test of Brady,question is not whether defendant would more likely
than not have received a different verdict with evidence,but
whether in it's absence he received a "fair Trial",reasonable
probability of a defferent result is accordingly¢shown when
government's evidentiary suppression undermines confidence in
the outcome of trial U.S.C.A. Cont. Amend. 5. Brady v. Maryland,
373 U.S. 83,83 S.Ct. 1194,1196, 10 L.Ed 2d 215 (1963). In United'
States v. Agnus, 427 U.S. 97;96, S.Ct. 2392,49 L.Ed 2d 342 (1976),
it became clear that even a defendant‘s failure to request fav-

orable evidence did not leave the state free of all obligation

to disclose exculpatory evidence.

POINT TWO
WHITHHOLDING BRADY MATERIAL

TRIAL EVIDENCE

The prosecutor purposely stoped the surveillance

video at trial/to withhold from the fact finder and trial counsel

 

YOUNG'S RESPONSE page '12

that someone other than the appellant committed the robbery.

The state claims that and Mrs. Ali reviewed the video (RR 6
p. 9-10),theref0re,the state knew the ending of the video and

~withheld it atvtrial.

POINT THREE

ACTUAL'INNOCENCE

ACTUAL INNOCENCE

Because a surveillance video shows someone other
than appellant committing the robbery/appellant is actually

l

innocent;of the robbery.

vPOINT FOUR

LEGAL SUFFICIEN¢Y
ik*******************
§LEGAL REvIEw §
~k*********~k*~k*******z'

When reviewing the sufficiency of evidence
under Article 38.14,courts decide whether the inculpatory evidence
tends to connect the accused to the commission of the offense.
Brown v. State, 672 S.W. 2d 487,488 (Tex.Crim.App. 1984). The
sufficiency of evidence is judged according to the particular
facts and circumstances;ofleachtcase. Ree v. State,744 S.W. 2d
112,126 (Tex.Crim.App. 1088) The direct or circumstantial evidences
is sufficient corroboration if it shows that rational jurors
could have found that it sufficiently tended to connect the accused
to the offense. Id.

TRIAL EVIDENCE

The stat's direct and only evidence came from

 

YOUNG'S RESOPNSE PAGE 13

Mrs. Ali's testimony,nothing outsind of that testimony,connected
appellant to the robbery.

Other evidence/such as the (DVD) or the police line up,merely
prove that someone robbed Mrs. Ali and the only person in the

line uppshe knew was appellant because he was a customer.

Absent such corrobotation testimony sufficient to support the
state's allegations,this Court should order an aquittal{under
state laww..."if the stat fails to prove any evidence connecting
the defendant to the offense,then the defendant is entitled to an
aquittal on appeal. Taylor v. State,, 10 S.W. 3d 673,685 (Tex.
Crim.App 2000)(citing Tex.Code. Crim. Proc. art. 3817; Munoz v.

state, 853 S.W. 2d 558,559-560 (Tex.Crim.App_ 1993)).

Courts no longer review factual sufficiency of the evidence to
support a defendant's affirmative defense.Durand v. State, 881 S.W.
2d 569/571 (Tex.App.-Houston§lst Dist] 1994/no pet. Agravated
robbery with a deadly weapon requires a showing of a deadly weapon,
Tex. Penal Code § 29.03(a)(2). The video from the store did not

show appellant with a gun/infact it did not show appellant at all.

An attorney must engage in a reasonable amount of pretrial
investigation and at a minimum...make a independant investigation
l of the facts and circumstances in the case. Nealey v. Cabana,

764 F. 26 1173,1177 (5th cit.1985).

lf the above points of error are deemed arguable,this Court

must abate the appeal and remand case to trial court with orders

to appoint other counsel to present these grounds.If this Court

\

 

YOUNG"S RESPONSE page 414

does not agree with appellant's points of error/the Court can
and should review the entire record for any other ground that

might support an appeal.

” SUMMARY

The appellant disagrees with ALL of appellat attorney's
grounds for filing of a Anders brief,except the facts that are

supported by the record.

*k****'k**k‘k****~k~k~k_CONCLUSION AND PRAYER FOR RELIEF.****************

 

WHEREFORE,PREMISES CONSIDERED, appellant believes that there
are arguable points of error in the record. Appellant prays that
this Honorable Court will REMAND this case back to trial court for
appointment of counsel to file qppeal.,He further prays that this
Court will GRANT counsel$s motion to withdraw. Appellant also
prays that this Court GRANT any and ALL relief to him that the

Court deems fair and appropriate by law-

§§Y§EU§¥¥¥Q§!¥:$¥§QEEQ§

l hereby certify that a true a correct copy of the above and foregoing
instrument was mailed to the Sixth Court of Appeals,Texarkana,Texas and to the
Hunt County District'Attorney Noble D. Walker,on this the 19th day of March,
2015/by U.S. mail.

Mark A hon Young
ABPELLANT

 

YOUNG'S RESPONSE page '15

INMATE DECLARATION

I,MARK ANTHONY YOUNG,TDCJ # l929961,currently incarcerated
in the Texas Department of Criminal Justice at the Michael Unit
in Tennessee Colony,Texas/do solemnly swear under the penalties
of perjury that the foregoing response is true and correct to the
beat of my knowledge. l further state the enclosed information

is true and correct.

EXECUTED ON THIS THE 19TH DAY OF MARCH 2015.

 

Mark A ony C/oung

TDCJ # 1929961

Michael Unit

2664 FM 2054

Tennessee Colony,Tx,75886

APPELLANT

PRO SE

 

YouNG's RESPONSE page 16

