                                      // -72/Y
  JTM^'. M
                             NO.PD-1172-14


                                    IN     THE


                     COURT    OF    CRIMINAL        APPEALS

                     '              OF     TEXAS




                     ERIC CHRISTOPHER' GONZALEZ                 R^C,E!!V£D "H
                            Appellant/                        COUR'i OF CRWiNAl APPEALS

                                     VS.                           FEB 12 2015
                            THE    STATE     OF    TEXAS
                                  Appellee.



   MOTION FOR RE-HEARING ON PETITION FOR DISCRETIONARY REVIEW
           PURSUANT TO TEXAS RULE OF APPELLATE PROCEDURE 79.



TO THE   HONORABLE JUDGES    OF    SAID COURT:

   COMES NOW,ERIC CHRISTOPHER GONZALEZ/in Pro se,and files this

his "Motion For Re-Hearing"of his Petition for Discre             FILED.
                                                                mmm APPEALS
and in support thereof will show the Court:
                                                                 FEB 1?:_'.j
                                     I .


   A jury found Apellant guilty of felony murder ,aggrava^cl 4sst&t, fl<
felony evading arrest/and possession.of marijuana,and the trial

court sentenced.him to concurrent terms of 50 years/20 years,20

years,and two years in a state jail facility.(24 RR 20-23.

   Appellant   filed a motion for new trial based on ineffective
assistance of counsel.(CR.172)-After setting the motion for a hear
ing/the trial court rescinded its order,and denied the motion for

new trial without a hearing.(CR.190;225).In a published opinion,

the court held that Appellant was not entitled to a hearing on his

motion for new trial,on the basis that he lacked standing for a

jury charge on the validity of a third-party's consent to search,

and the erroneous admission of marijuana did not affect his ..sub-

                                    i.               •'1.
stantial rights.Gonzalez v-State,2014 WL 4049800 at*5,*10,*14

(Tex.App.-Corpus Christ!,August 14,2014).
                                           II .
                     STATEMENT       OF   PROCEDURAL      HISTORY      -


   The Thirteenth Court of Appeal's opinion issued on August 14,

2014.No motion for re-hearing was filed.The Petition for Discre-

tionaty Review was filed on September 19,2014.The Court of Criminal

Appeals denied the Petition on January 28,2015.This Motion for

re-hearing is due to be filed February 12,2015.

                                          Ill .


   This motion for re-hearing is grounded on substantial inter

vening circimstances which are to be specified in this motion.

And Appellant certifies that this motion is so grounded and issmade

in good faith and not for delay.

                                           IV.
                     GROUNDS   PRESENTED          FOR   REVIEW   AND

                                     RE-HEARING


GROUND     FOR   RELIEF   NUMBER   ONE:
l.The court of aapeals erred in requiring Appellant,who has alleged
in a motion for new trial            that he was denied the effective assis
tance of counsel at trial,to file an affidavit containing legal con
clusions regarding prejudice,to be entitled to a hearing on the
motion .


GROUND     FOR   RELIEF   NUMBER   TWO:
The court of appeals erred in holding that Appellant did not have
standing to obtain a jury instruction pursuant to Art.38.23 of the
Code of Criminal Procedure on the validity of Francina Flore's con
sent to search the apartment.

GROUND     FOR   RELIEF   NUMBER   THREE:
The court of appeals erred in holding that the erroneous admission
of marijuana from Flore's apartment did not affect a substantial
right.

                                           V.
                   ARGUMENT    AND    AUTHORITIES-GROUND          ONE


   1.Appellant's Motion For New Trial and Counsel's Supporting

Affidavit Were Clearly Sifficient and Appropriate To Warrant An

                                           2.
Evidentiary Hearing.

      Appellant's motion for new trial alleged that he was denied

effective assistance of counsel,asserting seven instances of con

duct that was deficient performcne.(CR.pp,172-174)-Trial Counsel's

supporting affidavit acknowledged that none of the first six of the

allegations were the result of any trial strategy.(CR-pp,177-179).

      In requiring that the supporting affidavit contain "legal con

clusions" regarding prejudice before a hearing is warranted on a

motion for new trial,the court of appeal's published decision is

in conflict with decisions from the court of appeals and this. Court.

The Court of appeals cited to Barnett v.State#338 S.W.3d 680,685:

(TEX .App.-Texarkana 2011,pet.ref'd)(per curiam)-The Court of appeals

incorrectly applied Barnett*s case to the present case.A review

of Barnett v .State,supra,reveals that Barnett did not apply any

legal conclusions as to his ineffective assistance of counsel claims,,

the    Barnett   ease,also   reveals   that   in Barnett's   motion   for   new

trial,he only alleged that his counsel was ineffective,in the case

at hand,the need for an evidentiary hearing is needed,because the

record was silent,and any time a court, is           faced with a silent record

the evidentiary hearing on a motion for new trial that alleges that

counsel was ineffective assistance a hearing is "mandatory."

Rozell v-State,137 S.W.3d 106(Tex.App.-Houston [1st Dist]2004)aff'd-

176 S.W.3d 228 "(TEX. CRIM .App. 2005) .

      The very purpose of a hearing on a motion for new trial is to

(l)decide whether the cause should be retried,and (2)prepare a

record for presenting issues on appeal in the event the motion is

denied.Smith v-State,286 S.W.3d 333(TEX.CRIM.App- 2009).A trial
judge abuses his discretion in failing to hold a hearing on a

motion for new trial when that motion raises matters that are not

determinable from the record.Smith v.State/supra.The trial judges

discretion in determining whether to grant a hearing on a motion

for new trial extends only to deciding whether the defendant has

raised grounds that are both undeterminable from the record and

reasonable;if the trial, judge finds that the defendant has met the

critera,he has no discretion in failing to hold a hearing. Gonzales

v-State/304 S.W.3d 838(TEX.CRIM.App.2010).The very purpose of the

hearing on the defendant's motion for new trial is to develope

fully the issues raised in the motion.Guidry v-State/132 S.W.3d 611

(Tex.App.-Houston[lst Dist]2004,no pet.).

   An ineffective assistance of counsel.claim may properly be raised

in a motion for new trial,and where a timely and adequate motion

for new trial/supported by affidavit and raising matters not shown

by the record,is presented to the trial court,the trial court must

hold a hearing on the motion.Hale v.State/140 S.W.3d 381(Tex.App.-

Fort Worth 2004,pet.ref'd.).

   The State's very to the issues raised by Appellant as setting

forth the   ineffective assistance of   counsel   demonstrates   that   the

trial court abused its discretion in denying a hearing.For example,

see the State's response to Appellant's brief in regard to his

properly raised ineffective assistance of counsel's claim's.See

(Appelles Brief pages 11-12).In the analysis of the State in the

Appelles Brief,the State did not contest that Appellant's claims

are not determinable by the record of the trial.(Id.Appellee's

Brief p/ll-!2)-The State also did not concede that the actions of
Appellant's trial counsel were not deficient.(Id-Appellee*s Brief

page 12).

     Appellant's record was silent as to counsel's motivations for

his lacking any trial strategy and no.trial tactics whatsoever,

such conduct of counsel is always prejudicial and Appellant was

relying on his counsel at the time the motion for new trial was

filed and was prepared by his counsel.This Court should not have

to speculate on the reasons behind trial counsel's actions when

confronted     with   a   silent   record."


     The State argues that Appellant's counsel's affidavit stating

that he had no trial strategy was not enough to warrant a hearing

on   the   motion   for   new   trial


     Finally,the court's misplaced reliance on Smith v.State/286 S.W.

3d 333,341(TEX.CRIM.App.2009) ,-Cooks v-State/240 S-W-3d 906,912 (Tex

Crim.App.2007);,King v.State/29 S.W.3d 556,569(TEX.CRIM.App.2000);

Buerger v-State/60 S.W.3d 358,363(Tex.App.- Houston [14thDistJ, 2001

pet.ref'd.) ;and    Barnett v-State/338 S-W-3d 680,685(Tex.App.-Texar

kana 2011,pet-ref'd)(per curiam).Especially,the opinion of the

court of appeals,about the Barnett v.State,supra case,the Court of

Appeals for the Thirteenth District,opined.that Barnett alleged

that his counsel was ineffective for failing to call a particular

witnesss Kitty Rowland,to testify,despite knowing she was avail

able.The Court of Appeals stated that         "Barnett,was able to dem

onstrate,via the witnesses original statement to police,that the

witnesses testimony would have contradicted the testimony of the

other witnesses that Barnett used a kinfe during an assualt.Id.




                                        5.
    Barnett also alledged that his trial counsel failed to inves

 tigate the possibility of introducing mitigating evidence at the'

 punishment stage and specified the evidence;his long history of

 mental   illness.Id.at       686-87.


    Appellant asserts that the Court of Appeals,mis-applied the

 Barnett v.State,supra,case.Because the motion for new trial did

 not alegdge anything but that his trial counsel was ineffective,

 and he gave an affidav.it/the affidavit that Barnett                      gave did not

 alledge either prong of Strickland/deficient nor prejudice.See

. EXHIBIT NUMBER (1)-Barnett's motion for new trial and his affidavit

 are void of any legal conclusions as the state and appellate court

 allege .

    Barnett/did not allege or show how his counsel,'s conduct was

 deficient/nor that he was prejudiced by his deficient conduct and

 Barnett did not cite to any legal conclusions as to his claims.

 EXHIBIT NUMBER (l)-The Sixth Court of                 Appeals abated Barnett's

 direct appeal and ordered the trial court to hold a hearing on his

 motion     for   new trial/because         the   record was   silent as    to counsel's

 motives for his actions that were alleged ineffective assistance

 of counsel.Even the appellate court's opinon in this case in sum

 held that Appellant's affidavit of his trial counsel was sufficient

 to put the trial court on notice that there were reasonable grounds

 to believe that relief could be granted.See Thirteenth Court of

 Appeals Epinion page at 9-CitingCooks v.State/240 S.W.3d 906,912

 (TEX.CRIM.App.2007).

          For     the   above set   forth    reasons,and because     the    trial   court

 abused its discretion by denying Appellant a hearing and to allow

 him to be present at the hearing,Appellant is entitled to re-hearing

                                            6-
of the denial of the "Petition For Discretionary Review," because

Appellant was entitled to an evidentiary hearing on his properly

filed Motion for New Trial,that alleged facts that if true would

have entitled Appellant to relief,and Ineffective Assistance of

counsel claims      that were asserted on a silent record.Rozell v-

State/137 S.W.3d 106(Tex .App.-Houston [1st Dist ]2004 )'; aff 'd 176

S.W 3d 228(TEX.CRIM.App.2005).

   Also in support Appellant will point out that Honorable Judge

Alcala,voted to hear the Petition for Discretionary Review.In this

regard and applying the above arguments and law to the facts that

have been presented .Applellant is enititled to.Discretionary Review

on his Petition,and this Honorable Court should grant this motion

for re-hearing to further determine whether Appellant was enitiled

to a hearing on his motion for new trial that alleged ineffective

assistance of counsel,the court of appeals for the Thirteenth

District erred in denying Appellant relief,an evidentiary hearing

was appropriate and necessary to Appellant's ineffective assistance

of counsel   claims set forth in his motion for new trial,to have

proper adjudication of the claims on the merits and to make the

necessary record as      to counsel's motives,and the            trial   court   erred

and abused its discretion by denying the motion with out a hearing.

Hale v.State,140 S.W.3d 381(Tex.App.-Fort Worth 2004,pet.ref'd).

RE-HEARING   IS    APPROPRIATE     AND   REVIEW   SHOULD   BE GRANTED.




                  ARGUMENT   AND   AUTHORITIES-GROUND      TWO


   2.Appellant Had Standing to Request an Art-38.23 Jury Instruction

on The Validity of Francina Flore's Consent to Search.
   At    trial    and on   cross-examination,Flores'     testified   that   she

"really didn't want to let[police]in[the]apartment," she was "pre

tty much forced to" sign.the consent form/and that police officer

Joey Garcia/threatened to, take her childeren and send               them to

Children's Protective Services/unless she consented to the search

and[told1 them what they wanted to hear."(23 RR.pp,135-136).

   Appellant requested a jury instruction pursuant to Art.38.23 of

the Code of Criminal. Procedure,on the validity of Floes'              consent

to search the apartment.(23 RR.pp,19,20;23).The trial court denied

Appellant's requested instruction.(23 RR.PP,21,24).The court of

appeals held that Appellant was not enitiled to an Art.38.23 jury

instruction because, he lacked standing to contest the validity of

Flores'       consent to search.Because the court of appeals'         published

decision is in conflict with decisions from court's of appeals as

well as this Court,the Court of Criminal Appeals of Texas,discre

tionary review is.warranted pursuant to Tex.R.App.P.66.3(a)and Tex.

R.App.P.66 -3(c) ,and Appellant is enitiled to re-hearing the decision

af this Court respectively under Texas Rule of Appellate Procedure

Rule    79.


   Appellant is entitled to re-hearing of this matter and to the

discretionary review he seeks,and in support that he had standing

to obtain a jury instruction under Art.38.23(a),Appellant will

show:

               "T.CCP-Art.SS.ZStajEVIDENCE NOT TO BE USED.
                (a)No evidence obtained by an officer or other person in violation
               of any provision of the Constitution or laws of the State of Texas,
               or of the Constitution or laws of the United States of America,

               shall be admitted in evidence against the accused on the trial of
               any criminal case.


                                      8.
              In any case where the legal evidence raises an issue hereunder,or
              has a   reasonable doubt,that the evidence was obtained in violation

              of the provisions of this Article,then and in such event,the jury
              shall disregard any such evidence so obtained.

     Applying the above Texas and United States violation with the

testimony of Flores'          that the police officer Garcia,threatened her

with her children if she did not sign the consent form is evidence

that required an jury instruction, on the issue.Holmes v.State/248

S.W.3d 194,196(TEX-CRIM.App.2008):
              "A defendant who affirmatively   states,No objection,when evidence is
              offered,waives his right to complain on appeal that the evidence
              was,as a matter of law,illegally'obtained under Art.38.23.But that
              same defendant may still request.and recieve a jury instruction
              under Art.38.23 if the evidence raises a contested factual issue

              that is material to the lawfulness of obtaining the evidence.These
              are two distinct.issues:(1)is a legal question of admissibility
              for the judge and the other is(2)a question of disputed fact for
              the jury's consideration.' Holmes v.State/248 S.W.3d 194/196-

     Appeilant complained that the evidence was obtained in violation

of   the law,and that Flores'        consent was the fruit of      police threats,

in Atkinson v.State,923 S.W.2d 21,23(TEX-CRIM.App.1996),this Court

ruled   and    held   that:

              "Evidence obtained in violation of the law must be excluded from

               jury consideration in criminal cases on request of the defendant.
               The judge should withhold such evidence from the jury altogether
               when it is inadmissible purely as a matter of law.But,when there
               are disputed issues of fact affecting the legality of its seizure,
               the question of exclusion may be tried to the jury.In such event,
               the judge must include in his final charge an instruction that,if
               the jury "believes,or has reasonable doubt,that the evidence was
               obtained in violation of...any provision of the Constitution or
               laws of the State of Texas,or of the Constitution or laws of the

               U.S.,...then and in any event,the jury sahll disregard any such
               evidence so obtained."
   Moreover,the evidence raises the issuefof whether the evidence

was obtained illegally]may be either strong,weak,contradicted,un-

impeached,or unbelievable."Muniz v.State/851 S.W.2d 238,254(TEX.

CRIM.App-1993).Appellant,relies also on his original petition

which properly set forth the law on such amter's and Appellant is

enitiled to have this motion for re-hearing granted/because the

evidence that was obtained from the apartment and the consent were

the fruit of an illegal search and seizure in violation of Article

I § 9 of    the Texas Constitution and the Fourth Amendment to the

United States Constitution/when police officer Garcia/threatened

Flores'    with taking her children away/if she did not sing the

consent.


   Appellant was entitled to and had standing to request an                     jury

instruction under      Art.38.23/because           the evidence    seized was   in

fact disputed at trial/Appellant is entitled to a new trial and

any other relief that is appropriate and necessary that this Court

may deem necessary.RE-HEARING IS APPROPRIATE AND NECESSARY AND

APPELLANT    IS   ENTITLED    TO    REVIEW.




                    ARGUMENT       AND   AUTHORITIES-GROUND      THREE


   3.The Erroneous Admission of Marijuana and Pictures of Marijuana

Seized From Flores'        Apartment Affected Appellant's Substantial

Rights.


                   FACTS     RELEVANT      TO   GROUND   THREE


   When the State offered SX 35,marijuana recovered from the Flores1

apartment,the trial court overrruled Appellant's Tex-R-Evid-401,

404(b),and 403 objections.(20 RR.175)-The trial court also over

ruled these same objections to SX's 58,67,68,59,70,80,and 87,

                                          10.
pictures of the marijuana seized from Flores' apartment.(22.RR.
86) .

      The court of appeals held that the trial court erred in ad

mitting the marijuana because it was not "same transaction con-

texual evidence."Although the court aeknowedged that the marijuana
"played a large part in the State's case" and that it "used the

[marijuana] from the apartment,including the identification alleged
to be found in the bag with the marijuana... to connect the mari

juana with Appellant,it neverthless concluded that this error did

not affect Appellant's substantial rights.Because the harm analysis
in the court's published decision is in 'conflict with decisions

from this Court[Court of Criminal Appeals]and courts of appeals,
and ignores evidence essential to its resolution of this complaint,
discretionary review was warranted pursuant to Tex.R.App.P.66.3(a),
Tex.R.App.P.66.3(c) -

      At the out set,the court of appeals'failed to consider Appellant's
primary argument that this error was not harmless-the State's re

peated emphasis on the marijuana and the photographs dispicting it
during final argument-in urging jurors to convict on Count IV-in

its harm analysis,as required by Tex ..R. App .P.47.1.See Sims v.State/

99 S.W.3d 600,603-504(TEX.CRIM.App.2003)("As a, general proposition,
reviewing courts ought to mention a party's number one argument
and,explain why it does, not have the persuasive force the party
thinks it does .")'; King v.State, 848 S-W- 2d. 142 ,143 (TEX -CRIM- App.
1993).

      Appellant,asserts that he is entitled to a re-hearing on this

issue,and adopts his original arguments and law cited in the petit
ion   for discretionary review.This issue was so harmful that it

                                 11.
would result in a manifest miscarriage of justice not to grant

this motion for re-hearing on this issue,and would also result

in the same to not grant Appellant a new. trial after review of

this.issue.Appellant is so entitled and this Court should grant

re-hearing.RE-HEARING IS NECESSARY AND APPROPRIATE.



APPELLANT'S REQUEST OF COURT TO TAKE JUDICIAL NOTICE *THAT HIS

APPELLATE ATTORNEY FAILED TO PRESERVE TEN OF APPELLANT'S ERRORS/

BY FAILING      TO    RAISE      THE     ISSUES      IN    THE DISCRETION       REVIEW PETITION.




                                 POINTS       OF    ERROR NOT      WAIVED


ERROR NUMBER         THREE; OF      DIRECT         APPEAL:


THE   TRIAL    COURT       ERRED    IN      DENYING       APPELLANT'S    MOTION    TO    SUPPRESS
THE   STOP -




ERROR   NUKEER       FOUR   OF     DIRECT      APPEAL:


TEE   TRIAL    COURT       ERRED    IN      DENYING       APPELLANT.'S   MOTION    FOR    DIRECTED
VERDICT   ON    COUNT       III,TEE         FELONY       EVADING   ARREST     ALLEGATION,BECAUSE
HIS   CONVICTION       ON    THAT      COUNT       VIOLATED    DOUBLE    JEOPARDY       CLAUSE   OF
THE   FIFTH    AMENDMENT.




ERROR   NUMBER       SIX    OF   DIRECT       APPEAL:


THE TRIAL COURT ERRED               IN DENY IMG APPELLANT'S REQUEST FOR                    A JURY
INSTRUCTION ON THE VALIDITY OF THE SEARCH THAT YIELDED THE "MARI
JUANA   FROM    THE    CONSOLE         OF    HIS    TRUCK    PURSUANT    TO    ART-38.23    OF   THE
"CODE OF CRIMINAL PROCEDURE.



ERROR   NUMBER       THIRTEEN       OF      DIRECT       APPEAL:


APPELLANT      WAS    DENIED       EFFECTIVE         ASSISTANCE'OF       COUNSEL    AT    THE
GUILT-INNOCENCE            STAGE-
1.Failing to Limit the Definitions of "Intentionally" and "Knowingly."
2-Failinq to Request a Mistake of Fact Instruction.
3.Failing to Object to the State's Repeated Use of the Term "Victim.".

                                                   12.
      The issues listed above are            "in no way waived"/Appellant relied

completely on his appellate counsel to preserve these issues and

his    counsel   failed,Appellant was denied effective assistance of

counsel by his      appellate counsel deficient                 conduct          that    has   resulted

in prejudice of his       review of      the issues          raised in his oriqinal

direct appeal,for appellate            counsel to drop the ball could result

in Appellant' forfieting-'the issues for, later review of                               a hiqher

court,Appellant reserves            the right to raise the above issues at

another level of appellate review.




                         CONCLUSION      AND       PRAYER    FOR    RELIEF


      Appellant/is entitled to re-hearing of his properly raised

issues/that this Court denied in Appellant's petition for dis

cretionary review/it would be a total mis-carriaqe of justice to

deny re-hearing       on the matters raised/and by the                        clear and con-

vincinq    evidence    that   the    court    of    appeals      relied        on to come       to

the conclusion on Appelant's direct appeal was clearly erroneous

and the court of appeal         for the Thirteenth District erred by the

mis-statement      of the law reqardinq             the Barnett v.State/ case, when

in fact    Appellant    showed more      proof       than    Barnett/that he was                denied

effective assistance of         counsel,and Appellant                   is    entitled to have

an hearinq on his motion for new trial,wherefore premises beinq

considered,Appellant prays this Court grant re-hearinq and review

the evidence aqain and grant Appellant the relief he is entitled

to. -

                                                            2~ ^ JL-*         v__.
                                                     X
                                                         ERIC   CHRISTOPHER GONZALEZ
                                                         TDCJ-ID        #    1863150




                                        13
                      UNSWORN    INMATE    DECLARATION


   I,Eric Christopher Gonzalez,hereby declare under penalty of

perjury that the foreqoing is true and correct to the best of my

knowledge, I am an incarcerated inmate at the McConnell Unit, located

in Beevilie',Bee County,Texas.

Signed this the 9th day of       February,2015.X          €^jQ-
                                                      Eric Christopher Gonzalez
                                                      TDCJ-ID    #       1863150
                                                      McConnell          Unit
                                                      3001 S.Emily Dr.
                                                      Beevilie,Texas
                                                                                78102




                       CERTIFICATE    OF    SERVICE   '


   I,Eric Christopher      Gonzalez,hereby certify that              a    true and

correct "carbon codv"      of the forgoing motion for re-hearinq has

been sent   via U.S.Mail      to:Cameron County,District Attorney,Luis                  V.

Saenz,964   East   Harrison   Street,Brownsville,Texas          78520.

Siqned this   the 9th day of      February,2015.X
                                                      Eric Christopher Gonzalez
                                                      TDCJ-ID # 1863150
                                                      McConnell          Unit
                                                      3001 S.Emily Dr.
                                                      Beevilie,Texas
                                                                                78102




                                    14.
                       APPENDIX    OF   RELEVANT   EXHIBITS


                            <




EXHIBIT NUMBER ONE:Copy of      Motion for new      trial   and copy of   the

Affidavit of Barnett     v.State,338 S.W.3d 680(Tex.App.-Texarkana

2001).Trial Court Number 23473.

TAB   ONE.




                                  TAB   ONE.
                                                  I BIT                                                  5*£^S

                                              NO. 23473

STATE OF TEXAS                                     §    FN THE DISTRICT COURT
                                                   §
vs.                                                §    6th JUDICIAL DISTRICT
                                                   §
RANDY DALE BARNETT                                 §    LAMAR COUNTY, TEXAS


           MOTION FOR NEW TRIAL AND MOTION IN ARREST OF JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

           COMES NOW, Randy DaleBarnett, theDefendant in the abovestyled andnumbered cause,
and files this Motionfor New Trialand Motionin ArrestofJudgmentpursuantto Rules21 and 22
of the Texas Rules of Appellate Procedure, and in support thereof would show this court the
following:

           1.    TheDefendant wassentenced onMay25,2010. ThisMotion, filed within thethirty-
day timetable, is therefore timely. A hearing must be commenced before the 75th day afterthe
sentence, which is August 8, 2009, or this motion is overruled by operation of law.

           2.    The verdict in this cause is contrary to the law and the evidence. See Tex. R. App.
P. 21.3.

           3.    The defendant was denied the effective assistance ofcounsel in the above-entitled and

numbered cause, to wit:                                                                        C3
                                                                                  'Z3
                                                                                  3,
                 a.     Defendant was charged with an aggravated assault based on the use of a
                                                                                  ??          '
                        deadly weapon. A key witness to the incident was KStty Rowland, the
                        defendant's former fiance. She was present at the time of the incident for
                        which the defendant was charged. She gave a statement in which me denied

                        seeing the defendant displaying a knife. Mr. Coyle advised me that he could

                        not find the witness. However, during the trial, the State advised the court

                        that the witnesscouldbe located because theyhad heraddressand telephone
                        number. Defendant requested that his counsel file a motion for a continuance

                        to locate the witness but counsel didnot do so. Thiswitness' testimony was
Page 1




                                                                                                         ±Bi


                                                                                                           •*r~-«&."
              crucial as the use or exhibition ofa deadly weapon was the key element ofthe

              aggravated assault charge filed against defendant. The importance of the

              witness'stestimonyis demonstrated bydefendant's counsel's attemptto offer
              Kitty Rowland's statement into evidence during the trial. A true and correct

              copy of Kitty Rowland's statement is attached as Exhibit "A" and is

              incorporated herein by reference for all purposes.

         b.   The importance of Kitty Rowland's testimony was further demonstrated in
              that she had signed an affidavit of non-prosecution in which she averred that

              the charges against the defendant were not true. A true and correct copy of
              Kitty Rowland's affidavit of non prosecution is attached as Exhibit "B" and
              is incorporated herein by reference for all purposes.

         c.   Defendant's counsel failed to object to evidence concerning a purported
              assault committedbythe defendantupon KittyRowland. KittyRowlandwas
              not present totestify thereto norwere thereanyotherwitnesses withpersonal
              knowledge thereof. Charges are still pending on this case. The evidence
              offered thereto was hearsay.      The prejudicial effect of this evidence

              substantially outweighed its probative value and counsel should have

              objected to the same.

         d.   Defendant's counsel failed to object to testimony offered during the guilt
              innocence phase of the trial concerningthe defendant's pastcriminal history
              and incarceration in the penitentiary.

         e.   Defendant's counsel failed to request a jury charge on the lesser included
              offense of assault.

         f.   Defendant'scounsel failed to object to repeated extraneous offense evidence
              during the guilt innocence phase of the trial.

         g.   Defendant's counsel failed to offerany mitigating evidence at punishment.

Page 2




                                                                                              loc
                            Defendant has been diagnosed as having various mental health illnesses,
                            including being bipolar. He has had treatment at MHMR. No evidence was

                            offered as to his mental condition.

                 h.         Defendant's counsel failed to call Rhonda Gustin, a police officer who
                            interviewed thecomplaining witness, JimBryan. Defendant's counsel could
                            have established that Bryan never told theofficer that defendant putany knife
                        to Bryan's side when she interviewed him, contrary to the testimony offered
                        at trial. Such evidence could have been used to impeach the complaining
                        witness's testimony.

         4.     The trial court has the discretion togrant a new trial in the interests ofjustice, asthe
Court of Criminal Appeals has emphasized:

         For more than one hundred and twenty years, our trial judges have had the discretion togrant
         new trials inthe interest ofjustice. In MuUinS v. State. 37 Tex. 337,339-340 (1872-73), the
         Supreme Court, which at that time had criminaljurisdiction, held:
                . . . The discretion of the District Court, in granting new trials, is almost the only
                protection to the citizen against the illegal or oppressive verdicts of prejudiced,
                careless, or ignorant juries, and we think the District Court should never hesitate to

                use that discretion whenever the ends of justice have not been attained by those
                verdicts.

State v. Gonzalez. 855 S.W.2d 692 (Tex. Crim. App. 1993).

         5.     For the foregoing reasons, and for such other reasons that may arise onthe hearing
of this Motion, Defendant requests a new trial.

         WHEREFORE, PREMISES CONSIDERED, DefendantpraysthattheCourtset asidethe
judgment of conviction entered in this cause and order a new trial on the merits.




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                                                                                                            ±63
                                             AFFIDAVIT

          BEFORE ME, the undersigned authority, appeared Randy Dale Barnett, who after being duly
sworn by me stated the following under oath:
          "My name is Randy Dale Barnett. Iam over the age of18 years and Iam competent to make
this affidavit.

                  Iwas charged with an aggravated assault based on the use or exhibition ofadeadly
          weapon. Akey witness to the incident was Kitty Rowland, my former fiance. She was
          present at the time ofthe incident for which Icharged. She gave astatement in which she
          denied seeing the defendant displaying a knife. Atrue and correct copy ofthe statement
          which she gave was provided to me by my attorney and is attached hereto and incorporated
          herein by reference. During the trial, the State advised the court that the witness could be
          located because they had her address and telephone number. I asked my attorney, Jerry
          Coyle, to file a motion for acontinuance to locate Kitty Rowland but he refused to do so.
          Kitty Rowland's testimony was crucial as the use or exhibition ofadeadly weapon was the
          key element ofthe aggravated assault charge filed against me. The importance of the her
          testimony isdemonstrated by my counsel's attempt to offer Kitty Rowland's statement into
          evidence during the trial.
                  The importance ofKitty Rowland's testimony was further demonstrated in that she
          had signed an affidavit ofnon-prosecution in which she averred that the charges against me
          were not true.

                  My counsel also failed to object to evidence concerning apurported assault allegedly
          committed by me upon Kitty Rowland. Kitty Rowland was not present to testify about this
          nor were there any other witnesses with personal knowledge thereof. Charges are still
          pending on this case. Theevidence offered was hearsay.
                   My attorney did not object to testimony offered during the guilt innocence phase of
          the trial concerning my past criminal history and incarceration inthe penitentiary.
                   My counsel failed to request ajury charge on the lesser included offense ofassault.


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                                                                                                         .39
                 My counsel failed to object to repeated extraneous offense evidence during the guilt
         innocence phase of the trial.

                 My attorney failed to offer any mitigating evidence at punishment. I have been
         diagnosed as having various mental health illnesses, including being bipolar. I have had
         treatment at MHMR. No evidence was offered as to my mental condition. In fact, my
         attorney just asked me ifIwanted to tell the jury anything. Idid not know what to say. He
         just didnotask me anyquestions.

                 My counsel failed to call Rhonda Gustin, a police officer who interviewed the
         complaining witness, Jim Bryan. My attorney could have established that Bryan never told
         the officer that Bryan never told her that Iput any knife to Bryan's side, contrary to what was
         said in Court.




                                                   f&Atf'v /5^^<
                                                Randy Dale Barnett
                                                Affiant



 SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, this jfrdday of
QtAAdL         ,2010.




                                               Notary Public, State of Texas

                                                qnimill!,imimmiimmi]irnrmrm7..
                                                                    MARIENE HOCUTT
                                                                     NOTARY PUBLIC
                                                                     STATE OF TEWS
                                                    >*SJ$' MyCwnm8»k>n£xf>i!»3-N>-20lZ
                                                              .. ii)"i.'i;i;r;);»n, •, u.•;;»/;;,•> w
                                                                                                        J



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