                                  WR-78,427-02

                                           N.o TC# F-085659R-H


THE STATE OF TEXAS                                          CRIMINAL DISTRICT COURT NO.     1
        Respondent                                           DALLAS COUNTY,   TEXAS

V.S.                                                         PETITION FOR PRODUCTION AND
SAMUEL BENITEZ                                               INSPECTION OF GRAND JURY PROCEEDINGS
     Cestui Que Vie Trust,                                   AND/OR TESTIMONY
     Petitioner
                                                             TEXAS CODE CRTM. PROC. ARTTC.LE 20.02(d)(e)
TO THE HONORABLE JUDGE OF SAID COURT:


     NOW COMES, SAMUEL BENITEZ, Petitioner in the above stvled and cause, Pro Se,

Resnectfullv          moves     the     court    pursuant    fo Texas rode of Criminal Procedure

(T.C.C.P.)          Article     1.26,     ArH.de      20.02(dWe) , Article 20.19 and Article 1,

Section        10     and 19 of the Texas Consti*nfcion. The Petitioner Shows the follo-

winq;

1) Petitioner, SAMUEL BENITEZ, without counsel is relying on Haines v. Kerner,

40^ U.S. 519, for less stringent pleading standards.

2)     Petitioner        is    incarcerated      in   the Texas Department of Criminal Justice

Institutional          Division-Bill        Clements Unit.         In   this present incarceration:.

Peitioner        is    at     a disadvantage due to not having access to legal             reference

materials        in    Prison     on par with those of the District Attorney's Office and

and other Persons answering this Petition.

3)     This     Petition       is in accordance with (T.C.C.P) and the Laws of Texas upon

which     Petitioner          relies,     same   binding     as    promised performance, a benefit

due     this    Petitioner,        an     entitlement       to    equal Protection of the law under

administration of Justice Procedures.

4)     SAMUEL       BENITEZ,     the    Petitioner      herein      is a Cestui Que Vie Trust unless

otherwise evidenced. See TEXAS RULES OF CIVIL PROCEDURE Rule 52

5)     Petitioner       requests that he be permitted to examine and and all testimony

of each witness that testified before the Grand Jury. pRfiSElVIHDzll^ need
                                                                           COURT OF CRIMINAL APPEALS

                                                                                  MAY 27

                                                                                      &osta,t
for    the    Grand      Jury   witness     testimony— is a strong: interest in ensuring

accuracy       of       testimony     outweights   government    interest   in secerecy. In re

Grand Jury,          490 F.3d 978,988,990. (D.C. Cir.2007). Petitioner contemplates
that a particularized need for the testimony can be shown as follows:
a. To discover impeachment evidence

b.    To     discover      Prior      inconsistent Statements- Washington v. Texas 388 U.S.

14 (1967)

c.    To discover          mitigating     and exculpatory evidence- Brady v. Maryland, 373

U.S. 83 (1963).

d.    All witnesses that testified in Grand Jury testified on direct examination

pursuant to the Jenks.Discovery Act 18 USC $ 3500.

The    need       for    all witnesses that testified is hereby requested by Petitioner

In    the    alternative        the    specific    testimony    that Petitoner requests is as

follows:


ALMA AVALOS, who testified under Direct Examination

JESSENIA AVALOS, who testified under Direct examination

JENNY PATRICIA ABREGO, who testified under Direct examination

MARINA GARCIA, who testified under Direct examination

ROGELIO PORTILLO, who testified under Direct examination

DETECTIVE RICHARD DODGE, who testified under Direct examination

OFFICER BRANDON INNES, who testified under Direct examination

DETECTIVE EDUARDO IBARRA, who testified under Direct examination

ANDRA LEWIS-KRICK, who testified under Direct examination

VICKI HALL, who testified under Direct examination

6)    In    the     interest    of     justice Petitioner is further pursuing relief from
his     final       conviction       in a Habeas              Corpus Petition under the Gateway Claim
-Schlup       v.     Delo,. 115 S.Ct. 851 (1995). In his claim, Petitioner is asserting

trial     counsel       was     ineffective.            Upon    such assertion, Inorder to find that

counsel       was effective,              an     inquirey      must be made according to Tex. Code of

Crim. Proc. Article 27.03. Accordingly, Petitioner was relying on trial counsel

to know the law and                      represent         him to the best of counsels Knowledge. The

Law states,"           All     objections            and exceptions to the charging instrument must

be     made     in    writing       (T.C.C.P.) Art. 27.10; A motion to set aside , dismiss,

or quash           an indictment           should be made at the first opportunity and must be

presented          to the trial           court prior to.that Party's announcement of ready."

Neal     v.    State,        150 S.W.3d ,169(Tex.               Crim. App. 2004); Where counsel is to

Motion to Setaside indictment Counsel must do so based on the following:

1.     That    it     appears       by    the record of the court that the indictment was not

founded       by     at least nine Grand Jurors, or that the information was not based

upon a valid complaint;

2.    That    some      person      not        authorized by law was present when the Grand Jury

was    deliberating          upon    the        accuation      against     the defendant, or was voting

the same;

3. That       the Grand Jury was illegally impaneled;

Provided,          however     inorder         to    raise     such    question on a motion to setaside
the     indictment,          the Petitioner must show that he did not have an opportunity

to     challenge       the array at the time the Grand Jury was impanelled. As required

by Article 19 and 20 (T.C.C.P). Pe^vio^^ o^<^> tvn £».c.v iv\ceureev<xV<a4.
Furthermore,          In     Vasquez      v.        Hillery, The Supreme court held," That evidence

of     racial       discrimination          in       the   Grand      Jury selection process compromises
the    structural    protections       because   such abuses   leave the reviewing court

incapable    of     determining, if       a properly "constituted" Grand Jury would have

indicated the defendant, at 474 U.S. 254,264 (1986). In the interest of JUstice

Petitioner finds a Particularized need for the Grand Jury Proceedings.

7)    The   Petitioner      requests      the production of all the above. In Alternative

Petitoner     requests      the   Review of      that which the court .may order in part.
8)    Under Article 20.02 (d) (T.C.C.P) Petitioner may petiton a court to order

the    disclosure     of    a recording      or typewritten transcriptions under Article

20.012 as a matter preliminary to or in connection with a Judicial Proceeding.
The court may order disclosure of information, recordings, or transcription
on a showing by the defendant of a particularized need.

(e)    A Petition for disclosure under subsection (d) must be filed in the Dist
rict    court     in which the case is pending. The defendant must file also a copy

of thp petition with the Attorney representing the State, the Parties to
the Judicial Proceedings and                any other required by the court to receive a
copy of the petition. All persons receiving aPetition under this subsection
are entitled to appear.before the court. The court shall provide interested
Parties with an opportunity to appear and present arguments for the continu
ation of or end to the required secrecy.

9) Finally, "In felony cases, filing a sufficient indictment invokes a court's
personal jurisdiction over the defendant."Fairfield v. State 610 S.W. 2d
771,    779(Tex.     CRIM.APP.1981).        The Indictment also gives the District Court
Subject Matter Jurisdiction. "Subject-Matter Jurisdiction never forfeited
or waived: U.S,            V.   Cotton,    535 U.S. 625, 630 (2002). "Jurisdiction may be
challenged at any time. Once State and Federal jurisdiction has been challenged

,it     must        be     proven,-Texas              Dept.    of     Public Safety;V,S<BXJyvor\y'26 S.W.3d 5.76

(Tex.        App.        Houston       rlDist.n         2007^; Estrada v. State 1^8 S.W.3d>506)Subject-

Matter        Jurisdiction            is     a    power        that    exists by operation of law only, and

cannot        be        conferred upon any court by consent or waiver, and thus a judgment

will never be considered final if the court lacked Subject-matter jurisdiction

-Dubai        Petroleum Co. v. Kazi, 12 S.W.3d 71; When a cause of action is derived

from     a     statute,          the    statutory provisions                are mandatory and exclusive and

must     be       complied         with      in all respects or the actions is not maintainable

for     ]ack        of Jurisdiction- Grounds v.. Tolar Independant School Dist, 707 S.W.

2d     889;        "A     plea     to the jurisdiction is a dilatory plea, its purpose is to

defeat        a     cause        of action without regard to whether the claims asserted have

merit,"Nuecesr              County      v.       Dale-        Hoff, 105 S.W.3d 208. The Petitioner hereby

asserts           that     the . indictment             is     founded    on fewer than the required number

of    Grand         Jurors        votinq         in    favor of a true bill, The actual foreman failed

to     deliver, the bill. Accordingly, Forgery of the forman's signature or even

inadvertent              sigriiingq    and returning                of a bill in a case not reviewed by the

Grand     Jury           are all fundamental defects in charging instruments process which

would        vitiate the instrument, vitiate trial Court jurisdiction and be subject

to     first        complaint          on Appeal despite the failure to present objection prior

to trial on the merits. Aguilar v. State 810 S.W.2d 230

Petitioner              asserts       that       the    trial court had no Subject-Matter Jurisdiction

due to the Improper.grand jury proceedings, and void indictment.

For     the        reasons        shown      above       Petitioner has asserted a Patricularized need

for. the disclosure of the Grand Jury Proceedings and/or Witness Testimony.
WHEREFORE:   Good   cause   shown   and in the interest of justice, the Petitioner

respectfully prays that this Court GRANT this Petition in all things



On   jSj-h                   day of     flJM             2015


                                                   RESPECTFULLY SUBMITTED,

                                             By:
                                                   for SAMUEL BENITEZ-Cestui Que
                                                   Vie Trust, Petitioner
                                                   ^1543909-Bill Clements unit
                                                   9601 SPUR 591
                                                   Amarillo, Texas 79107
