•^ -.                                                                                                RECEIVED IN
 ";*                                                                                           COURT OF CRIMINAL APPEALS
                      UNITE-D    STATE       SUPREME         COURT       OF    TEXAS                   ._     .
                                       Austin division                                                 ArK v± 2015

LEON HARRISON,                                        §               RE: CASE: No."! 4-1 3-$$^ ^cfeffe, CH®rk
         Appellant                                    §                       PDR No.PD-0392-14,
                                                      o                       TC:#635921; CT:#230TH _„ _^
u-                                                    |                                                       FILED IN
THE STATE OF TEXAS,                              • *              •                                  C°URT OF CRIMINAL APPEALS
                APPELL£E'                             §                                                     APR 012015
          APPELANT'S    REQUEST        COURT      EN       BANC    TO    CONSIDER COURT         OF
        APPEALS DENIAL OF APPELLANT'S MOTION; UNDER RULE. 60(b)(5)                                                COSta, Clerk
     Appellant bring this            action      to       request       the    Court to    En Banc on

considering     the    denial        of 14th Court of                 Appeals     and    the   Texas    Cou
rt of Criminal's denial of Appellant prose motion under Rule 60(b)
(5),     and will    show the Court the following:


                                      Statement U£_E§se

     The nature of the Motion               is   from the 14th Court of Appeals,                        affirming
the     trial court's    unfavorabia findings under                            article 64.04 of         the Texas

Code ,;of Criminal Procedure,                which was made on September 24,2012 (GR at
1 03) .-i Appellant timely filed his pro se notice of appeal,                                    pursuant to
art..64.05,    on October 16,2012,                (CR at 108).
     Appeant mas     appointed counsel                in the       appeal.       On    October 9,2013,         appeal
counsel filed        Motion     To    Abate      Appeal,          pending       the Court of Criminal               App
eals out in wHITFIEELD v. ST ATE ,No .01 -1 2-00081 -CR, 2013 Uli 2456720 (Tex.
App.-Houston [1st Dist.l Dune 6 ,201 3 ,pet .granted . (. In that case,                                       the
court     of appeals    dismissed           Uihitefisld!s             appeal     of the    trial      court's       un

favorable findings for want of jurisdiction,                                  citing STATE v.          H0LL0WAY,
360 5.ti).3d 400 (Tex.Crim.App.2U12).                        The court of appeals summarized
the     holding in    Holloway,        as    follows:

      [B]ecause a writ of habeas corpus is only (sic) way to obtain
      postconviction relief based on DNA testing, any opinion of a
      court of appeals reviewing a trial court's findings under arti
      cle 64.04 would be         advisory.            We lack jurisdiction to render ad
      visory opinions.

     Appellant's case is in precisely the same posture as Whitfield's was
on appeal ana since the Court of                          Appeals affirm the 1st Court's major
ity opinion, the 14th Court of Appeal was obligated to dismiss the app
eal irrespective of any substantive issue he may have.

                                                  1 .
  The 14th Court of Appeals refused to address appeal counsel's motion
to abate appeal and Appellant's pro se motion to correct appeals record
under Rule 34.6(f) and (d), T .R ..A. P., before the appointment of counsel,
and    appeal   counsel   motion   to   withdraw   from   case.

  On February 27,2014 the Court of Appeals granted appeal.counsel's mot
ion to withdraw as attorney of record in the above cause number.              Which
intuun denied Appellant's pro se brief in this cause number.
The Court of Criminal Appeals refused the Appellant's PDR thereafter.

      On 10/23/14, Appellant filed his Motion of Leave to File Under Rule
60(b)(5),Fed.R.Civ.Proc ., and court denied motion as being time barred
to invoke its jurisdiction. On 1/29/15,              Appellant filed under Rule 60
(b)(5), to the Court of Criminal Appeal. The Court of Criminal Appeals
addressed the issue by informing Appeals the Court no-longer had its
appellate record. On 1/30/15,           Appellant filed a motion to the Court of
appeals to reconsider court's denial of appellant's motion under Rule
60(b)(5) under Court En Banc. The court never addressed motion. Now
Appellant motion this Court to address his motion under Rule 60(b)(5).

                  REASON FOR MOTION       UNDER    RULE 60(b)(5 )


  Under Rule 60(c), timely and effect of the motion. Appellant will sh
ow this Court he is well inwhich the one year time limit of the court's
judgment in bath the court of appeals and the court cf criminal appeals.
  Rule 60(c) Federal Rules of Civil Procedure states:

  A motion under Rule aQ(b) must be made within a reasonable time and
for raasons (1),(2), and (.3) no.more then a year after th.e entry of the
judgment or order or the date of the proceeding. (.2) Ef fect on Finlity. ,
The motion does not affect tho judgment's finality cr suspend it"s oper
ation, (d) other powers to grant relief, this rule does not limit a co
urt's power to: (1) entertain an in-dependent action to relieve a party
from a judgment, order, or proceeding, (2) 6£ant_T.e:liaf -undar 2,3 U.S.C.
f_!-:!:? to a de-endant who was not personally notified of the act on:
(3). Set_aside_a_jud§ment_for_fraud on the court, (e) bills and writs s?d:
abolished. The following are abolished: Bills of review., bills in the
nature of bills of review, 2nd writs of coram nobis, coram vcbis,and
(audita querela) [law latin "the complaint having been head"] a writ
available to a judgment debtor who seeks a rehearing cf a matter              on
grounds of newly discovered evidence or newly existing legal defenses.
The writ of Audits Querela (=quarrel having been heard)..                Introduced
during the time of Edward III,, was available to reopen a judgment in
certain circumstances.       It was   issued as   a remedy to defendants           where
on important matter concering his case arised since judgment. It issue
was based on     quitable,   rather then common law pinciples.         L.B.Curzan,
English legal history 103 (2d Ed.1979)

  Audita querela is distinguished from coram nobis in that coram nobis
attacks the judgment itself, whereas Audita querela may be directed
against the enforcement,       or further enforcement of a judgment which wh
en redered was just and unirnpachable . TA CCS. Audita Querela § at
901   (19B0).

  Appellant case is a trial court's judgment not to find DNA results
not favorable to Appellant's actual innocence claim inwhich he was
excluded from the profile be DPS-crime lab, under Art.64.03-04 and 05
of Tex .Code .Crim .Proc. , which. Appellant appealed to the 14th Court of.
Appeals. Appellant was appointed appellate counsel which filed a motion
to abate appeal pending the out-come of the Court of Criminal Appeals
decision in, WHITFIELD v. STATE.409 S.W.3d 11 (20013); Reversed by
2014 Tex.Crim.App.LEXIS 689; Reversed by 430 S.W.3d 4U5 (July 22,2014
CCA.)- 2014 Tex.App.LEXIS 7902.

  Appellant motions to the court of appeals and court of criminal appeals
was timely inwhich Rule 60(c)         states said motion must be made.

                                      PRAYER


      Appellant have mat the required showing of Rule 60(b)(5) & (c), and
pray that this Court will En Banc to consider the court of appeals den
ial cf Appellant's Motion of Leave Of Court Under Rule 60(b)(5) and in
all things grant this motion.         Appellant reserved the right to appeal
any denial of     this motion to the U.S.      District Court Of       The Southern
District   Of   Texas-.

                                                          Respectfully submitted,
                                                          j£-£fZ?2- &s&sVU<2?<.
                                                         LtiEON   HARRISON #815719
                                                          P0LUNSKY      UNIT
                                                          3B72    FM   350   So.
                                                          LIVINGSTON,        TX    77351
                          CERTIFICATE   OF   SERUIUE

  I do hereby certify that a true and correct copy of the above aind
foregoing pleading was   requested by Appellant to the Clerk of the
Court to forward a copy to the 14th Court of Appeals and all parties



                                                        Respectfully submitted,

                                                       -LX^&fe&/?±z - ___
                                                       LEON HARRISON   .#131571-9
                                                       APPELLANT-PRO   SE




                                   4.
                                                                                                      ri£C€iVED
DATE-.3/25/15                                      LEON    HARRISON #615719
                                                          POLUNEKY      UNIT
                                                                                                   N SUPREME OOUR'
                                                                                                      OCTCYAO
                                                      3B72       FM   350   So.
                                                   LIVINGSTON, TX 77351                              APROi?Q^
                                                                                              BLM&HAW IHUJ-HMt, UtefK
SUPREME                  COURT       OF    TEXAS
CHIEF                 JUSTICE    WALLACE       JEFFERSON
PLACE 1,                  PO    BOX 1224B
AUSTiENy                 TEXAS       7B711-224B



RE: LEON HARRISON \1.                          STATE,          No .1 4-1 3-00239-CR;     TCNo.635921;      COURT
                  #    230TH    DISTRICT       COURT       OF    HARRIS     TEXAS,



Dear                  Justice    Jefferson:


           I would         like       to    file    this       motion   for    the   court under   Rule   60(b)(5)
.--} ,--[ (--•;

and bring to                     the docket to             be    ruled upon.


           Please have the                  Clerk of Court file a copy with the 14th Court of
Appeal                  sand ail          parties    a file       date.

           Thank you for                  your time       in    this matter.




Respectfully                     submitted,

-^k&-^~z/&?&^..
Appellant,                     pro    se




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