                                                          \b.4lfctf
Lexter   Kennon       Kossie#700661
William McConnell
3001   South Emily Drive
                          Unit
                                               jD^
Beeville,      Texas    78102




April    12,    2015
                                                    APR 16 2011

Texas Court       of Criminal Appeals
P.O.    BOX12308,       Capitol Station
Austin,       Texas    78T11


RE: WR NO.10,978-37 (Trial Ct. No.679887-S)
    Application For Writ of Habeas Corpus


Dear    Clerk:



          Please find enclosed my original motion and objection
to be filed       in the above case number and presented to the
court as soon as possible.
          Thank you for your kind assistance.


                                                Sincerely,



                                                Lexter   Kossie

cc:    file                                     Pro se Applicant
                                                               10 m I ^
                           NO.    WR-10,978-37
EX PARTE                              g              IN THE TEXAS COURT

                                      §              OF CRIMINA|^EJ$spe^E^
LEXTER KENNON KOSSIE,                 §              AUSTIN Y TJT'°
                    Applicant,


         MOTION   IN OPPOSITION TO TRIAL COURT'S FINDINGS
            AND CONCLUSIONS OF LAW/ MOTION FOR A              LIVE
         EVIDENTIARY HEARING AND APPOINTMENT OF           COUNSEL


TO THE   HONORABLE JUDGES    OF    SAID COURT:


          NOW COMES LEXTER KENNON KOSSIE,           pro se,    in good faith,

files this his Motion In Opposition To Trial Court's Findings

And Conclusions Of Law/Motion For A Live Evidentiary Hearing

And Appointment Of Counsel.         LEXTER KENNON KOSSIE,        hereinafter

('Applicant') will show unto the Court that good grounds exists

for granting his motions.

I-        Background

           In November 1994, a jury found applicant guilty of the

felony offense of aggravated robbery in Cause Number 679887

("the primary case'),      in the 185th Judicial District Court of

Harris County,    Texas.   The jury also found the enhancement par

agraph to be true and sentenced applicant to life in prison.

The Fourteenth Court of Appeals affirmed applicant's conviction

in an unpublished opinion issued on March 13,             1997. Rossie v.

State,   NO.jl4-94-01171-CR,      slip op.   at 1,1997 WL 109996 (Tex.

App.-Houston L14th Dist.J March 13,             1997, n.jw.h.)(not desig

nated for publication). Applicant did not file a petition for

discretionary review with this Court.;


                                      Page J'
II.]      Writ History

          Applicant has filed (16) sixteen previous applications

challenging his conviction and sentence in Cause No.679887.

Applicant's previous considered writ applications in Cause Nos.

679887-A,   679887-C,      and 679887-J were denied without a written

order on March 15, 1995,          granted on April 17,    1998 and denied

without a written order on May 5,           2008,   respectively.

           The remaining writ applications in Cause Nos.679887-B,

679887-D, 679887-E, 679887-F, 679887-G, 679887-H, 679887-1, 679887-

K, 679887-L, 679887-M, 679887-N, 679887-0, and 679887-P, were either

dismissed without a written order or dismissed as an abuse of the

writ.] Thus, this Court as a result never considered these appli

cations    on   the   claims   merits.


           In an order dated February 6,          2008, this Court withdrew

its denial of applicant's first habeas corpus application (Cause

No.679887-A)(Ex parte Kossie, Writ No.10,987-09), and on recon

sideration dismissed that application because applicant's direct

appeal was then pending. (Ex parte Kossie, 2008 WL 366681(Tex.

Crim.App.2008)). This Court also withdrew its dismissal of (3)

three other habeas applications. Ex parte Kossie, Writ No. 10,

978-13; Ex parte Kossie,          Writ No.10.978-14; and Ex parte Kossie,

Writ No.    10,978-15.     This Court,    thereafter denied relief re

quested in these writ applications on February 6, 2008.

           After conclusion of applicant's direct appeal he filed

in essence his initial habeas corpus application in Cause No.


                                         Page 2
679887-C considering this Court dismissed A and B writs for

tack of jurisdiction due to applicant's direct appeals was

then pending.   On April 17,   1998,   this Court granted relief

in Cause No.679887-C   in the form of an out-of-time appeal        to

allow applicant to file a petition for discretionary review.

Ex parte Kossie, Writ No.10,978-12 (Texas Court of Criminal

Appeals #73,038). In that writ application, as demonstrated

above should be considered applicant's initial application,

the claims included a claim that applicant's trial counsel

was constitutionally ineffective during the penalty phase of

applicant's sentencing trial,     but it did not include a claim

that trial counsel's ineffectiveness consisted       in part of a

failure adequately to investigate and to present mitigating

circumstances during the penalty phase of applicant's sentenc

ing trial.

        This Court did not reach the merits of applicant's

claim regarding whether trial counsel was constitutionally

ineffective during the penalty phase of the sentencing trial,

instead, as pointed out above, this Court granted relief in

the form of allowing applicant to file an out-of-time appeal

to file a Pr.>jD;TR.] See again Ex parte Kossie, Writ No. 10.987-12

(Trial Court Cause No.679887-C).

III.]   Applicant's Constitutional Claim

        In the instant application pending before this Court

in Cause No.679887-S   (Writ No.10,978-37),     applicant presents


                                  Page 3
a single constitutional deprivation claim that his trial

counsel rendered ineffective assistance by failing to in

vestigate and present mitigating circumstances during the

penalty phase of the sentencing trial.

IV.      Trial Court's Findings Of Fact And Conclusions Of Law

         On March 12,2015,   applicant filed a post conviction

application for writ of habeas corpus with the 185th district
court alleging that his trial counsel was ineffective during

penalty phase of his sentencing trial by failing to investi

gate and present mitigating circumstances in which the trial

court received the writ application on March 20,2015. There

was no response filed by the State of Texas to the allegations

contained in the applications. Applicant presume the trial~

court made its own findings of fact and conclusions of law,u

that the application was a subsequent application barred by

sec.4 of article 11.07 Tex.Crim.Proc. Code,      thereafter ordered

the clerk of that court to transmit same to this Court.

         Ttois Court is not bound by a trial court's findings in

a habeas corpus action, however, this Court generally accept

those findings if they are supported by the record. Ex parte

Brandley, 781 S.W.;2d 886, 887-88 (Tex.Crim.jApp. 1985) .

V.]      Section 4 Statement

         Tex.Crim.Proc. Code art .]11.07 §4(a )(1) (b) (c ), provides

that:   "If a subsequent application for writ of habeas corpus



                                  Page 4
is filed after final disposition of an initial applieation

challenging the same conviction,         a court may not consider the

merits of or grant relief based on the subsequent application

unless the application contains sufficient specific facts

establishing that:    (1) the current claims and issues have not

been and could not have been presented previously in an origi

nal application or in a previously considered application fil

ed under this article because the factual or legal basis for

the claim was unavailable on the date the applicant filed the

previous applications;

          (b) For purposes of Subsection (a)(1),        a legal basis

of a   claim is unavailable on or before a       date described by

Subsection (a)(1)     if the legal basis was not recognized by

and could not have been reasonable formulated          from a   final

decision of the United States Supreme Court,          a court of appeals

of the United States,     or a court of appellate jurisdiction of

this   state on   or before   that   date.


VI.       Legal Basis For Applicant's Subsequent Writ Application

          On May 28, 2013, the United States Supreme Court handed

down its ruling in Trevino v. Thaler,          133 S.Ct.] 1911(2013).

Applicant did not discover Trevino until December 12, 2014,

the date in which offender Donald Wayne Herod #1538539,           gave

applicant a copy of Trevino to read. After reading the case
applicant immediately wrote his prison law library suppervisor


                                      Page 5
asking her to verify whether the hardback volume was on the

shelf.    The volume was not.      See exhibit A and any additional

exhibits    mentioned hereinafter      attached   to memorandum      and    law

submitted with writ application.

           On May 28,    2013,   the date of the Trevino court's ruling,

applicant had already filed         (16)   sixteen previous      applications

challenging his conviction and sentence in Cause No.679887.

Thus,    claim presented    in the instant writ application is pro

cedurally barred under § 4,         Tex.Crim.Proc.    Code art.11.07.

           However,   applicant contends that this Court should

excuse Itnis procedural     default,   on the ground that he had good

"cause"    for not raising the claim at the right time,            namely

that,    not only had he lacked effective counsel during his

sentencing trial,       but also   lacked counsel    during his     first

collateral review proceeding.          Applicant asserts that his con

tentions are well supported by the Supreme Court's decision

in Trevino,supra.

           In Trevino,    the Supreme Court held that lack of coun

sel on collateral review might excuse a defendant's. state law

procedural default.       The Court wrote:      LA J procedural default

will not bar a     federal habeas court from hearing a substan

tial    claim of   ineffective assistance at       trial   if,   in the init


ial review collateral proceeding,           there was no counsel or coun

sel    in that proceeding was ineffective."

           The rationale,    as the Trevino Court concluded was that



                                       Page 6
the structure and design of the Texas appellate system in act-

ual operation,     makes it "virtually impossible"       for an ineffec

tive assistance of trial counsel claim to be presented on

direct review.     The Court further found that Texas procedural

framework,     by reason of its design and operation, makes it

highly unlikely in a typical case that a defendant will have

a meaningful     opportunity to raise a claim of ineffective

assistance-of-trial-counsel on direct appeal.

           Applicant contends that the instant case is        the typical

case in which the Trevino Court contemplated and envisioned _if

considering that the facts of the instant case are           indistin

guishable from those of the Trevino case.         As   in Trevino,   appli

cant's trial counsel failed to investigate and present mitigat

ing circumstances during the penalty phase of his trial.             Speci

fically,    applicant claims he received   ineffective assistance of

trial counsel     during his punishment trial when counsel       (1)

waived the 10 days to prepare for the punishment trial with

out applicant's written consent or on record in open court (2)

failed to inform applicant of his right to testify at the punv./t

ishment trial or inquire into whether applicant had a desire to

(3) failed to inquire into whether applicant had character wit

nesses   (4)   failed to consult with an expert in regards to the

effect of chronic use of crack cocaine      (5)    failed   to adduce

evidence of applicant's general life and character and           (6)


                                  Page 7
wholly failed to investigate and present any mitigating cir

cumstances during the penalty phase after having sufficient

leads of applicant's drug addiction.

           The Trevino Court has concluded that,                          Texas procedure

makes    it "virtually impossible"Pfor an appellate counsel to

adequately present an           ineffective assistance                   Lof trial counselj

claim as    in the instant case,           on direct review,                citing Robinson

v. State,    16 S.]W.3d 808,        810-811      (Tex.Crim. App. 2000) .

           Furthermore,      this      Court    itself       has    found    that      "the


inherent    nature   of most      ineffective"assistance"                   of    trial   coun

sel    "claims"   mean   that    the    court   record        will       often    faileto      "con-


taiLnJ    the information necessary to substantiate"                             the claim. Ex


parte Torres,      943 S.W.]2d 469,        475 (1997) (en banc) .

           This Court has        further found          that,       "a    writ of habeas

corpus"    issued in state collateral proceedings ordinarily                                  "is

essential to gathering the facts necessary to...evaluate....

Lineffective-assistance-of-trial-counselJ                          claim." Torres,supra,

at 475.    See Robinson,        supra,    at 810-811 (noting that there is

"not generally a realistic opportunity to adequately develop

the record for appeal           in post-trial motions"                   and that      "Ltjhe

time requirements for filing and presenting a motion for new

trial would have made it virtually impossible for appellate

counsel to adequately present an ineffective assistance claim


to    the trial   court").




                                                 Page    8                         '
            See also Thompson v.    State,    9 S.W.3d 808,   813-814,     and

n.   6   (Tex.Crim.App.1999)("LIJn the vast majority of cases, the

undeveloped record on direct appeal will be insufficient for

an appellant to satisfy the dual prongs of Strickland";              only

"Lrjarely will a reviewing court be provided the opportunity

to make its determination on direct appeal with a record cap

able of providing a fair evaluation of the claim..."); Good-

speed v.     State,    187 S.W.3d 390,    392 (Tex.Crim.App.2005)(simi

lar);     Andrews v.   State,   159 S.W.3d 98,     102-103 (Tex.Crim.App.

2005)(similar);Kx parte Brown,           158 S.W.3d 449,   453 (Tex.Crim.

App. 2005) (per curiam) (similar); Jackson v.         State, 973 S.W.]2d

954,     957 (Tex.Crim.App.1998)(per curiam)(similar).         See also

42 G.]Dix & J.] Schmolesky,      Texas Practice Series §29:76,      pp.844-

845 (3d ed.     2011)(hereinafter Texas Practice)(explaining that

"Lojften"     the requirement that a claim of ineffective assis

tance of trial counsel be supported by a record containing

direct evidence of why counsel acted.as she/he did "will re
quire that the claim ... be raised in postconviction habeas

proceedings where a full record on           the matter can be raised").

            Applicant's appellate counsel did not claim on appeal

that applicant's trial counsel had been constitutionally inef

fective during the penalty phase of the trial court proceeding

and even had appellate counsel pursued the ineffectiveness of

trial counsel on appeal,        it would have been virtually impossible



                                          Page 9
to adequately brief the claim.         That is because review of such

a claim normally requires a different attorney, because it

often "dependLsJ   on evidence outside the trial record."           and

because efforts to expand the record on direct appeal may run

afoul of "LaJbbreviated deadlines." depriving the new attorney

of "adequate time...to investigate the ineffective assistance

claim." See Martinez v. Ryan,         566 U.S.] 1 (2012).    The instant


case is the type of     ineffective assistance of trial counsel

claim in which the Trevino Court contemplated and envisioned.

Thus,   for the reasons stated above,         applicant should be allowed

to proceed on this forum with his procedurally defaulted consti

tutionally ineffective assistance of trial counsel claim.             More

over,   applicant has shown that the legal basis for which allows

him to present his claim in the instant writ application was not

recognized by and could not have been reasonably formulated from

a final decision of the United States Supreme Court,             a court of

appeals of the United States,         or a court of appellate jurisdic

tion of this state on or before May 28,           2013,   the date in which

Trevino v. Thaler was decided by the United States Supreme Court,

133 S.Ct. 1911(2013).

VII-      Facts Warranting An Evidentiary Hearing

          On November   13,   1993,   applicant and Eugene Williams

had been doing crack cocaine prior to the robbery.             See exhibit



                                      Page   10
B. After running out of crack and money they stopped at a

Burger King restaurant in which applicant allegedly robbed

by displaying a brown gun handle tucked inside of his waist

band hanging out.     (Reporter's Record,     Vol III,pp.107-108).

Applicant initially told his trial counsel         that the cashier

that was working at the Burger King was his acquaintance and

that she had freely given him the money out of the register

and that no robbery actually had occurred. See exhibit C p.'l

par.     2 Applicant later confessed to trial counsel and told her


that he had lied on the cashier because the cashier was lieing

about seeing a gun.    See exhibit C p.2 par.5.      He also told trial

counsel that he and Eugene Williams had been doing crack cocaine

prior to the robbery and had applicant not been on crack he

would not have robbed the Burger King.        See exhibit C p.3 par.

11. He told counsel that he did not have          a gun and that he

only had his hand underneath his jacket faking as though he

had something. See exhibit C p.2 par.5. Applicant asked coun

sel ,to help him get into CENIKOR DRUG TREATMENT PROGRAM. Counr

sel told him that it was no way they would accept him with his

violent criminal background without ever making a motion to

try to get applicant into the program.        See exhibit C p.2 par.

6   &   7.




                                  Page   11
          Applicant then filed a pro se Motion To Be Placed In


A Substance Abuse Treatment Program but the trial court judge

refused    to rule on the motion.   Since the trial court judge

would not rule on the motion and     the cashier was not   going


to tell the truth that she did not actually see a     gun,   appli

cant felt that he had no choice except to go to trial and

claim that the cashier was his acquaintance and that she had

freely allowed him to steal the money out of the register.

Applicant insisted on going to trial with his fabricated de

fense.    Though counsel did not want to go to trial on this de

fense because she knew that    the cashier did not freely allow


applicant to steal the money or otherwise participate in the

crime counsel just went through the motions at trial but never

had any real intentions of winning the case. See exhibit C

p.2 par.] 8.

           The jury found applicant guilty on November 29,    1994,

of aggravated robbery by using and exhibiting a deadly weapon

to wit: a firearm.    On that same day counsel waived the 10 days

to prepare for sentencing trial without applicant's consent or

on record in open court. Counsel had no      intentions to present

any mitigating evidence during the punishment trial because

she was still angry at applicant for dragging her through the

guilt or innocent stage on the fabricated defense. See exhibit



                                 Page   12
C p.4 par 12. When the trial court asked,               "Does either side

have any evidence that they wish to offer on punishment?"

Counsel replied,      "The defense rests,          Your Honor". See Report

er.:*.: srRecord Vol V,   pp.   7 & 9.

VIII.     Arguments And Authorities Supporting A Remand To
          Trial Court For A Live Evidentiary Hearing


          Applicant contends that there are controverted pre

viously unresolved issues relating directly to the legality

of his confinement which must be resolved requiring a live

evidentiary hearing whereas trial counsel can specifically

respond   to the allegations of her ineffectiveness during

applicant's sentencing trial. Applicant has alleged specific

facts   in his writ application which if are proven true would

entitle him to habeas corpus relief.               Firstly,   applicant con

tends that trial counsel must explain under oath why she waiv

ed the 10 days to prepare for applicant's sentencing trial

without his consent or on the record in open court as provid

ed by TEX.CRIM.PROC. CODE art.            1.051.    In Ex parte Dunham,650

S.W.2d 825 (Tex.Crim.App.1983)            and Ex parte Morse,      591 S.W.2d

904 (Tex.    Crim.App.1980)       both emphasize that a lawyer's lack

of time to prepare for trial os one             of several factors that

could lead to habeas corpus          relief,    but this factor alone may

may not be enough to merit relief.             This right may be waived if

not raised at trial.        In other words,        an applicant will not be




                                         Page 13
able to obtain writ relief absent a showing of harm or request

for additional time to prepare for trial. See Ex parte Reed,

610 S.jW.2d 495 (Tex. Crim. App. 198 1) .

           Here,   in the instant case,       additional time was requir

ed so that counsel could have consulted with applicant to deter

mine whether he had any character witnesses that were willing

to testify and whether these witnesses could have provided rel

evant testimony for the jurors to consider in mitigating             pun

ishment.    JoAnn Kossie and Lucinda Kossie had such evidence and

were willing to provide their testimony had counsel contacted

then and prepared them for the sentencing trial.See exhibit D.

Mitigating circumstances relevant to punishment are circum

stances of the nature that JoAnn Kossie and Lucinda Kossie

could have testified to,       which would support a belief that

defendants who commit       criminal   acts    that are attributable to

such circumstances        are less culpable than others who have no

such excuse.       See Muhammad v.   State,    46 S.W.3d 493 (Tex.App.-El

Paso 2001,    no pet.).

           Secondly, applicant contends that an evidentiary hear

ing is needed so counsel can explain why at no time prior or

during the punishment trial did counsel inform applicant of

his right to testify or inquire into whether applicant desired

to testify. Within hours after the jury's finding of guilt,

counsel rushed into the sentencing trial.Counsel was totally



                                       Page 14
unprepared for the sentencing trial, and had no intentions to

be or even letting applicant take the stand.        In fact,   counsel's

only sentencing trial strategy was just to sit in as a "warm"

body attorney and let the prosecutor roast applicant with his

violent prior criminal record.Applicant contends that had coun

sel inquired into whether he desired to testify he would have

insisted on taking the stand to at least        admit the truth that

he did not know the cashier as he had tried         to lead the jurors

to believe.   He would also have let the jurors know that he re

spected their decision in finding that he had used         a firearm

but would have let them know that he did not have a gun during

the robbery and that the only reason he had gone to trial was

because the cashier had lied about seeing a brown gun handle.


He would have let the jurors know how remorseful he. was in try

ing to implicate the cashier as      a party to the crime but at the

time he thought that   it was    in his best   interest to do so.   He


He would have also let the jurors know that prior to committing

the robbery he had done crack cocaine and had he not been on

crack he would not have committed the robbery.        He would have

explained to them how intense the craving was for him to get

more crack into his system and that the craving prevented him

from conforming his behavior to the law. Applicant would have

told the jurors that he lost all self-control because the crav

ing was unbearable and all      that matter at that   time was   that he



                                   page 15
got some money to buy some more crack.                     He would have explained

to them that he had been in several drug treatment facilities

for    chronic    use    of   crack    cocaine    and    alcohol   abuse.   Counsel


could have easily verified this by acquiring and presenting

evidence of applicant's medical                  records and       documentation of

applicant's crack addiction from the parole office.                         Thus,thirdly,

an live evidentiary hearing is needed so trial counsel can ex

plain why she made no attempt to retrieve this evidence for


mitigating punishment even when applicant had provided her

with sufficient leads of his drug addiction. Fourthly,                         counsel

must explain why she made no attempts to consult with an expert

in regards to the effect of chronic use of crack cocaine.                          Dr.

Harry Bonnell explains in his sworn affidavit                        that the craving

for cocaine can take control of rational thinking and make the


person more capable of committing crimes and other illegal

behaviors.       See    exhibit   E.


           With a minimum amount of investigating counsel could

have    discovered       that   chronic    use    of    crack cocaine    can   cause


temporarily insanity and that evidence of temporarily insanity

could have been admitted for mitigation of punishment at appli

cant's sentencing trial.]See               Seek v.       State,    b4b S.W.2d 557 (Tex.

App.-Houston List Dist.jJ              1982)("Evidence of temporarily insan

ity caused by intoxication was admissible in mitigation of pen

alty for aggravated rape").               V.T.C.A.       Penal Code §§ 8.04,      21.02



                                            Page 16
(b)(2-4). With this evidence counsel could have requested an

instruction on temparary insanity for the jurors to consider

and   in all    likelihood   counsel      would have    succeeded with her


requests.

           Applicant further contends that an live evidentiary

hearing is needed so counsel can explain why she made no at

tempt to adduce or produce any evidence of applicant's general

life and character. At the time of the offense applicant was

a certified lab optician and was working full-time at McDuffy

Optical. He he"was married           and had 3 kids ages 10 months,          3

years old and 13 years old and that he was a good father to

his kids.      Applicant contends that this evidence was relevant

and with a minimum amount of investigation counsel could have

discovered even more evidence of applicant's general life and

character that only a lawyer can do.                Evidence is relevant to

the assessment of punishment if it provides information about

about    the   defendant's   life   and    characteristics.    See Minor v.


State,    91 S.W.3d 824 (Tex.App.-Fort Worth.2002).

           Finally,   applicant contends that trial counsel wholly

failed to investigate and present any mitigating circumstances

during the penalty phase of the trial.                Applicant had been in

several drug treatment facilities,             namely,    Herman Hospital,       St,

Joseph Hospital, West Oaks Hospital and his parole officer had

him admitted      into treatment     at    the Texas House which at    that

time was a facility for paroleess with drug addictions.                All of


                                          Page 17
this evidence was documented by the parole board and with a

minimum amount of investigation counsel would have discover

ed this evidence which would easily supported a request for

an instruction    on temporary insanity. While Strickland does

not require defense counsel to investigate each and every
potential lead, or present any mitigating evidence at all, it

does require attorneys to put forth enough investigation efforts

to base their decision not to present a mitigating case on a

thorough understanding of the available evidence. See Ex parte

Woods, No.WR-62,627-01, 2005 Tex.Crim.App. LEXIS 1859 (Nov.2.

2005)(designated for publication).

        Here,    in the instant case, counsel was provided with

potential leads by applicant that his temporary insanity by

chronic use of crack could have been offered as evidence to

show that while applicant was under the influence of crack the

craving overpowered him which prevented applicant from conform
ing his behavior to laws. Once counsel had these leads she was

required to probe, inquire, investigate, consult and seek out

whatever evidence she could discover to support an instruction

on temporary insanity so that the jurors could consider as evi- ,

dence in mitigating punishment at applicant's penalty trial.

Voluntary intoxication is not a defense to crime. Tex.Penal

Code Ann.§ 8.04(a)(Vernon 1994), however,      evidence of temparary

insanity caused by intoxication may be introduced in mitigation

of punishment. See Reyna v. State, 11 S.;W.3d 401 (Court of Appeals


                                     Page 18
List Dist] 2000). See also Frias v. State, 775 S.W.;2d 871 (Tex.

App.-Fort Worth 1989 no pet.).

             In conclusion,   applicant contends that evidence of his

temporary insanity caused by chronic use of crack might have

proved the mitigating factor that would have promoted jurors

to give him a lenient sentence instead of the maximum sentence

of    life   in which he received.   With a    minimum   amount   of   investi

gation counsel could have discovered           a wealth of additional

evidence,     thus,   counsel's failure to investigate and present

any mitigating circumstances deprived applicant of effective

assistance of counsel making his sentencing trial fundamentally

unfair. See Wiggins v. Smith,        539 U.S.; 510 (2003).




                                                Respectfully submitted,




                                                /   sv7>^^^c^ygd4^-&-
                                                Lexter Kennon Kossie
                                                TDCJ-CID #700661
                                                William McConnell       Unit
                                                3001 South Emily Drive
                                                Beeville,   Texas      78102

                                                Appearing Pro se



                                  Afnf ..20:
     SIGNED ON THIS (9> day ofJWW__, 2015.




                                     Page 19
                             PRAYER



       WHEREFORE, p r e i s e s               ARE    cons id e r e d,

Applicant prays that this Court will find that this is a per

missible subsequent writ application under § 4(a)(1)(b)(c),

art.;11.07 because the legal basis for the claim alleged in

the instant case was unavailable on the date applicant filed

his initial application or any previous considered applica

tion in that the United States Supreme Court's decision in

Trevino v.   Thaler,   133 S.Ct.   1911   (2013) was not decided until

May 28, 2013,   almost 15 years after applicant had filed his

initial writ application and after any previously considered

writ applications filed by the applicant.

        Applicant prays this Court will further find that there

are controverted, previously unresolved issues relating direct
ly to the legality of applicant's confinement which must be
resolved requiring a live evidentiary hearing in order that
applicant's     trial counsel can specifically respond to the

allegations contained in the writ application in Cause No.

679887-S pending before this Court, thereafter hold said
pending application in abeyance and remand the case back to

trial court for such evidentiary with an order that applicant

be appointed counsel for that proceeding.


                                               zs/ cyCkjyfajlJi^AJuSL-
                                               Lexter Kennon Kossie
                                               Pro se Applicant


                                   Page 20
           INMATE-S       UNSWORM         DECLARATION


         I,   Lexter Kennon Kossie,#700661,   being presently

incarcerated at    the William McConnell Unit   in Beeville,

Texas,   declare under penalty of perjury that,     according to

my beliefs and memory,    the allegations made in my writ

application are true and correct to the best of my knowledge.




                                           Lexter   Kennon   Kossie




                                Page 21
