                                                                       February 13, 2015
                              03-14-00681-CR
                          Cause   No.     002368-c


Robert.Lee.Brown                            In The Third       District Court
         Applicant                    §     Of Appeals
                                      §
V.
                                      §     OF
                                      §
The   State Of Texas
                                      §     Austin/    Texas
          Respondent                  §


                Applicant's Memorandum In Support For DNA                ,/received\
                Testing Under Article 64.01 (a-1) and (b)                   FEB 1 3 2015
                Tex.   Code   Crim.   Froc.
                                                                          THIRD COURT OF APPEALS
                                                                              JEFFREY D. KYiF


To The Honorable Judge Of Said Court:
       Comes Now, Robert.Lee.Brown, Applicant Pro-Se,in the above
3tyled and numbered cause do hereby file this Brief in support
for DMA Testing and memorandum in Law of support in accordance
with Article 64.01 (a-1) and (b) Tex.              Code Crim.    Proc. of Texas
Code Of Criminal Frocedure        and would      like to shuu the Court as




                         Jurisdiction

      The Honorable Court has complete jurisdiction in accordance
with Article 64.01     (a-1) and (b)       of the Texas Code of Criminal
Procedure.

                        Statement Of       Facts

      On May 10,2000, the applicant was sentenced and convicted for
aggravated robbery in whicn he was allegedly to have committed on
the dace of Sepceinber 29 or 30th of 1999.             He then proceeded to
tight his case via direct appeal which was filed on January 29,2000
and it was affirmed on July 26,2000. Since that time the Applicant.
has taken his case unto the U.S. Supreme Court attacking hio conviction
with only the direct appeal that was filed or. his case and the doors
were closed to him the entire way. Finally, in January of 2009 the
applicant was able to get hold cf his Court Records and found out
there was more errors that should have been litigated via Habeas
Corpus. This is the third attempc to exhaust his remedies based on
actual innocence. This memorandum in Law of support has the necessary
argument and aucnorit.es that need to be litigated and the applicant
is also hope that actual innocence was never argued in his previous
writ because he did nun have the proper evidence that the records
                                  1
 reveals and therefore would like this opportunity to exhaust these
 arguemeric before they are presented to the Federal Court.
 The District Clerk of Travis County did therefore also deliberatley
 withheld his previous application 0023-A for a five month period
 before it was filed and that action caused the time limits to run
 out to where the t'ederal Court time barred him from filing his Federal
 writ. Even though the applicant realizes that this application and
 brief in support can be consLrued as a successive application but the
 motion for leave is also filed to ask the permission of this Honorable
 Court m order to prove actuai innocence and deceptive police tactics
 and prejudice on behalf of the prosecution in charge of the case and
 the misconduct of the tribunal for then allowing such miscarriage cf
 justice to i_ake place. It is the duty of the Trial Court to seek the
 truth and to right any wrongs that have taker, place in the judicial
system and the applicant believes that this application and brief in
support will bring the needed attention to warrant an evidentiary
 hearing in order for justice to be done.


                          Discussion



(In Darrell V. State, 2013 Tx. App. Lx.13237)
An order denying DNA Testing is an "Appealable order" under rule
25.2(a) (2). Guitierrez V. State,307 Sw3d 318, 321 (Tx. Cr. App.2010)

   However, the decision to deny appointed counsel is not . Id at
323 ("Such an=appeal-is prematurely ^motion for appointed Counsel
is a preliminary matter that precedes the initiation of Chapter 64
proceedings.")



                                                   iDrnun #
                                       Robert ."LeeJBrown 1 Q070 1VI
                                                            927914      ' -*

                                       Eastham Unit
                                       2665 Prison Rd.    #1
                                       LoveLady, Texas
                                                  75851
                               PRAYER




   WhereforeiPremises Considered,Applicant humbly prays that
this Honorable Court will grant the Motion For Successive Petition
and allow him the one and only opportunity to prove that he has
the Evidence in this application and in the Memorandum to show
that he has standing to be granted relief and that a Evidentiary
Hearing is the only way that he can proceed to show his innocence.




                                             Respectfully Submitted,

                                             ifo£e@t^£i£'>^6^rT#lrflli
                                             TDCJ—CID,       Applicant Pro—Se
                                             Eastham    Unit
                                             2665    Prison    Road   #1
                                             Lovelady,Texas 75851




                       CERTIFICATE    OF   SERVICE



   I,Robert Lee Brown/Applicant Pro—Se,hereby certify that the
forgoing information is true and correct,and a copy is being mailed
to the District Court Clerk of Travis County at P.O.Box 1748,
Austin ,Tx.76767 . Signed on this 7   day of February            ,2015.




                                             Respectfully Submitted;



                                             Robert    Lee    Brown #927915
                                             Applicant Pro—Se—_
                                             TDCJ—CID
                                             Eastham Unit
                                             2665 Prison Road #1
                                             Lovelady,Texas 75851
                                             Cause no.   00-2368-c

Ex Parte                                                 §        IN THE COURT

                                                         §
                                                         §        OF

                                                         §
Robert Lee Brown                                         §        AUSTIN,   TEXAS



                                 APPLICANT'S MOTION FOR LEAVE OF COURT
                                 TO FILE SUCCESSIVE APPLICATION FOR AN
                              APPLICATION FOR WRIT OF HABEAS CORPUS IN
                              ACCORDANCE WITH ARTICLE 11.07 §4(A)(1(T)
                            OF THE TEXAS CODE OF CRIMINAL PROCEDURE.



TO THE HONORABLE JUDGES OF SAID COURT:

        COMES NOW,          Robert     Lee    Brown herein known as Applicant, do hereby file
this     Motion       For     Leave to File Successive Application for an Application for
Writ     of Habeas          Corpus     in Accordance         with Article 11.07 §4(a)(l)(2) of the
Texas    Code        of   Criminal      Procedure        and hereby would like to show the Court
as follows:


                                                JURISDICTION

         This Court holds ultimate jurisdiction in accordance with Art. 11.07 of
T.C.C.P.



                                                CONFINEMENT

         This Applicant is being held illegally by Nathaniel Quarterman, Director
of     the   Texas        Department     of    Criminal      Justice, Eastham Unit, Institutional
Division, Lovelady, Texas.


                                  ARGUMENT FOR SUCCESSIVE APPLICATION

        The Texas         Code    of   Criminal    Procedure      Article 11.07 §4(a)(l)(2) state
that     "If    a     subsequent application for Writ of Habeas Corpus               is filed after
final    dispostition of an initial               application challenging the same conviction,
a court may not consider the merits of or grant relief based on the subsequent
application          unless      application      contains      sufficient    specific   facts that
establishes the following:
       (1)     the    current claims and issues have not been and could not have been
/




    presented previously in anoriginal application or in a previously considered
    application filed under this article becuase the factual or legal basis for
    the claim was unavailable on the date applicant filed the previous application;
    or

           (2)        by a proponderence of the evidence, but for violation of the United
    States       Constitution         no    rational juror could have found the applicant guilty
    beyond a reasonable doubt.
           When       the    first       application          was     filed the Applicant had no scientific
    knowledge         of    working       law    and     only had the appellate brief provided him by
    his    appellate         attorney      who        only       argued one issue about denying the Motion
    for Suppression of evidence presented by the State.
           Brown       requested         many times through coresspondence and having his family
    also    contact         his    attorney          on appeal about giving him a copy of his Clerk's
    Records       and      Court     Reporter's records and Exhibits presented and she refused
    any and all attempts at contact.
           The record          clearly shows that his trial and appellate counsel were court
    appointed         and    he    did     not       have     the funds to retain counsel or purchase the
    records until January of this Year of ,2009.
           Brown       avers      that     he    is     not      educated in the technical science of the

    law    and        neither does         he have assistance from any trained, skilled attorney
    or the many accoutrements available to attorneys for free-world pro-se litigant
    in    order       to help him to present all errors that this future application will
    have    included         within       that       needs       to be litigated to satisfy the exhaustion
    requirement         before       these errors are presented to the Federal District Court.
    Therefore,         Brown      contends       that       he    should not be held to the same Strinqent
    standards         of    pleading or research as an educated attorney in the preperation
    and    presentation of               his    Pro-Se        application for writ of Habeas Corpus. See
    Haines       v.    Kerner, 92 S.Ct. 594, 595 (1972); Pete v. Metcalf, 8 F.3d 217 (5th
    Cir. 1993).
                                     ERRORS PRESENTED IN ORIGINAL HABEAS

    Defendant's Motion to Supress In-Court identification by victim was denied.
    The    victim said            his    attacker was between 18-20 years old, Applicant was 32
    years of age.
    Illegal Sentence, void indictment.
    Denial of effective assistance of counsel,

           These        errors      were       not    substantiated        by any evidence from the record


                                                                 2.
and     the original              application        was dismissed without prejudice and Applicant
believes        that        now    that   he     has a complete copy of his trial records he can
present        the following           errors        and show by the proponderence of the evidence
that     a     reasonable          juror would not have found him guilty beyond a reasonable
doubt.

                                    ERRORS APPLICANT WANTS TO PRESENT

Perjured Testimony of Sonja Lee Holder and Pete Arrevalo
The evidence was legally and factually insufficient to support the conviction.
Actual Innocence

Police fabrication of out-of-court photo line up identification.
Prosecutorial Misconduct.

Conspiratorial              actions    of      the    District    Clerk   of taking 5\ months to file
original application.

Ineffective Assistance of Counsel
        (a)    failed       to   object to accomplice witness testimony.
        (b)    failed       to   develop a defense.
        (c)    failed       to   object to perjured testimony
        (d)    failed       to   request for balistics, fingerprint, DNA experts to test the
               State's exhibit 22.
        (e) failed to request any instructions on any defensive issues raised by the
            evidence and testimony.
        (f) failed to properly preserve error.
        (g) Failed to investigate or interview any of the State's witnesses,
        (h) failed to give adequate representation.
Ineffective Assistance of Appellate Counsel
        (a) failed to present all the potential errors that could give the Applicant
               a favorable chance at relief.

                                                     CONCLUSION


        Brown avers and contends that this successive writ will not be considered
to be         an abuse of writ if he can show cause for raising a new point of error
after    one writ            of Habeas Corpus has already been filed. Russell v. Collins,
944     F.2d        202,    205 (5th Cir. 1991). Good Cause exists for hearing successive
application           of Writ       of Habeas Corpus where failure of counsel to object to
admission of testimony at trial, "is not waiver of error" because constitutional
defect        has     not    been     identified after trial; when such defect is identified
after trial, and its status                    is applied        retroactively,   applicant   "should"
be allowed            to raise        issues     in his subsequent application. Ex Parte Baker,
879 S.W.2d 889, 892-93 (Tex.Crim.App.1994).
       Texas law requires that, before a conviction may rest upon                       an accomplice
witness's           testimony,        that     testimony      must   be   corroborated by independent


                                                         3.
evidence tending to connect the accused with the crime. This accomplice witness
rule creates a statutorily                   imposed       review      and is not derived from federal
or state constitutional principles that define the legal anf factual standards
of sufficiency.
       To determine the sufficiency of the corroboration, regardless of whether
an objection was made, the Court must eliminate the testimony of the accomplice
witness      and      examine         the    testimony         of the other witness who did confess to
trading      sexual        favors       for       drugs    and money with a prostitute since she was
the age of fifteen. See Taylor v. State, 7 S.W.3d 732, 737 (Tex.App.-Houston[14]
dist. 1999)j Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App.2007).
       The      underlying premise is that such a witness is a "discredited witness"
and     that       "the    testimony         of      a accomplice witness is also to be scrutinized
not    only because              of    any interest she might have, but because her testimony
is from a corrupt source. Beathard v. State, 767 S.W.2d 423, 429 (Tex.Crim.App.
1989); Simmons v. State, 205 S.W.3d 65, 72 (Tex.App.-Fort Worth 2006).
        In determining             the strenqth           of     the   particular item of non-accomplice
evidence, we must examine:
        (1) its reliability or believability, and
        (2) the strength of its tendency to connect the Applicant to the crime.
Jones v. State, 195 S.W.3d 279, 289-90 (Tex.App.-Fort Worth 2006).
       The      Supreme        Court        has    clarified the abuse of        the writ. The State has
the burden           to     plead abuse. This burden is satisfied if the State notes the
Applicant's          prior writ             history       with    clarity and particularity, identifies
claims       which        appear for the first time in the later application, and alleges
abuse by           the     Applicant.         But,     for       the Applicant to disporve abuse of writ
he    must      show       why    the       claim     was not raised in the first application, this
would       include       claims       that       he was impeded by some objective factor external
to his defense, such as the availability of his records                           which is a reasonable
unavailability            of     the    factual        basis of the claims. The applicant will show
that    he     was       actually       prejudiced         by     the errors of which he complains. And
he    avers      that       if he cannot satisfy both the cause and prejudice requirement
       is      not    entitled to a evidentiary hearing to develop the claim. Even so,
he    hopes      that      the    Court       will excuse his failure to timely raise the claim
if    he     can     show      that     a     fundamental miscarriage of justice "the conviction
of a innocent person" will result by failure to entertain the claim.
                                                          PRAYER
     WHEREFORE, PREMISES CONSIDERED, Brown humbly prays that this Honorable Court
will consider his argument in this Motion and grant it so that he can show that
there has been a miscarriage, of   justice ofbeinq an innocent person incarcerated
by false and misleading testimony, prosecutorial misconduct, judicial abuse of
discretion, etc. These actions created an actual and substantive disadvantage
to the Applicant.
Signed and executed on this £ ff day of /l/ftl u        / 2009.

                                                            tfully Submitted,

                                                   Robert
                                                   Applicant Pro-Se
                                                   TDCJ-CID
                                                   Eastham Unit
                                                   2665 Prison Road #1
                                                   Lovelady, Texas     75851


                             CERTIFICATE OF SERVICE

     I, Robert Lee Brown, Applicant Pro-Se, do hereby certify that the foregoing
is true and correct and a copy is being mailed to the District Clerk Amalia
Rodrigues-Mendoza of Travis County, Texas at P.O. Box 1748, Austin, Texas        78767.


Signed and executed on this 2.8 day of /n6Lu           2009.




                                                                 Brown #927914
                                                   Applicant Pro-Se




                                       5.
                                      Case No.
                          (The Clerk of the convicting court will fill this line in.)


                      IN THE COURT OF CRIMINAL APPEALS OF TEXAS


                    APPLICATION FOR A WRIT OF HABEAS CORPUS
                  SEEKING RELIEF FROM FINAL FELONY CONVICTION
                UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07


NAME:        Robert Lee Brown

DATE OF BIRTH:             November 13, 1967
PLACE OF CONFINEMENT:                     R^t-ham Tinir


TDCJ-CID NUMBER:                 927914                      SID NUMBER: 03447774

(1)     This application concerns (check all that apply):

        53       a conviction                                a     parole

        53       a sentence                                  •     mandatory supervision

        a        time credit                                 a     out-of-time appeal or petition for
                                                                   discretionary review


(2)    What district court entered the judgment of the conviction you want relief from?
       (Include the court number and county.)

             167th District Court, Travis County, Austin, Texas

(3)    What was the case number in the trial court?

             002368

(4)    What was the name of the trial judge?

             Honorable Michael Lynch



Revised: March 5. 2007




Misc. Docket No. 06-103                       Page 2 of 13                        ATC 1! .07 (Rev. 03-05-07)
(5)    Were you represented by counsel? If yes, provide the attorney's name:
         Hon. Charles Hinneman



(6)    What was the date that the judgment was entered?

        May 10, 2000

(7)     For what offense were you convicted and what was the sentence?

         Aggravated Robbery w/Deadly Weapon
(8)     If you were sentenced on more than one count of an indictment in the same court at
        the same time, what counts were you convicted of and what was the sentence in each
        count?

                                                         N/A



(9)     What was the plea you entered? (Check one.)

       • guilty-open plea             o guilty-plea bargain
       ex not guilty                  • nolo contendere/no contest

        If you entered different pleas to counts in a multi-count indictment, please explain:
                 N/A




(10)    What kind of trial did you have?

        a no jury                              a jury for guilt and punishment

        cs jury for guilt, judge for punishment

(11)    Did you testify at trial? If yes, at what phase of the trial did you testify?

            N/A

(12)    Did you appeal from the judgment of conviction?

        H yes                         a   no




Misc. Docket No. 06-103                   Page 3 of 13                     ATC 11.07 (Rev. 03-05-07)
If you did appeal, answer the following questions:

        (A)       What court of appeals did you appeal to? Third Court of Appeals

        (B)       What was the case number?           3-00-00534-CR

        (C)       Were you represented by counsel on appeal? If yes, provide the attorney's
                  name:
                          Hon. Linda Icenhauer-Ramirez

        (D)       What was the decision and the date of the decision?    July 26, 2001

(13)    Did you file a petition for discretionary review in the Court of Criminal Appeals?

        a   yes                        6a no


        If you did file a petition for discretionary review, answer the following questions:

        (A)       What was the case number?           N/A

        (B)       What was the decision and the date of the decision?       rc/a

(14)    Have you previously filed an application for a writ of habeas corpus under Article
        11.07 of the Texas Code of Criminal Procedure challenging this conviction!

        Dt yes                         d   no


        If you answered yes, answer the following questions:

        (A)       What was the Court of Criminal Appeals' writ number? Q02368-A, B.

        (B)       What was the decision and the date of the decision? Denied, sgpt-Pinhgr n. 2002

        (C)       Please identify the reason that the current claims were not presented and
                  could not have been presented on your previous application.

                   It was not until January, 2009, that the Applicant was able to

                   purchase his court records in order to fully attack all claims




Misc. Docket No. 06-103                    Page 4 of 13                  ATC 11.07 (Rev. 03-05-07)
                   and all applicant had to go on in the past was the direct appeal

                  and it only attacked one issue-

(15)    Do you currently have any petition or appeal pending in any other state or federal
        court?


        d yes                            a    no


        If you answered yes, please provide the name of the court and the case number:

                                             n/a

(16)    If you are presenting a claim for time credit, have you exhausted your
        administrative remedies by presenting your claim to the time credit resolution
        system of the Texas Department of Criminal Justice? (This requirement applies to
        any final felony conviction, including state jail felonies)

        d   yes                          a    no


        If you answered yes, answer the following questions:

        (A)       What date did you present the claim?        N/A

        (B)       Did you receive a decision and, if yes, what was the date of the decision?

                                   N/A

        If you answered no, please explain why you have not submitted your claim:
                                      N/A




(17)    Beginning on page 6, state concisely every legal ground for your claim that you are
        being unlawfully restrained, and then briefly summarize the facts supporting each
       ground. You must present each ground on the form application and a brief
       summary of the facts. Ifyour grounds and briefsummary ofthe facts have not been
       presented on the form application, the Court will not consider your grounds.




Misc. Docket No. 06-103                      Page5 of ]3                  ATC 11.07 (Rev.03-05-07)
GROUND ONE: THE APPLICANT CONTENDS THAT NON-ACCOMPLICE EVIDENCE WAS INSUFFICIENT
 TO CORROBORATE THE ACCOMPLICE WITNESS TESTIMONY AND CONNECT THE APPLICANT
 TO THE OFFENSE, RESULTING IN INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION.




FACTS SUPPORTING GROUND ONE:
 Pete Arevalo the victim testified that Sonya Holder brought three black males

 to his home and robbed him. He testified that the black male who had the gun and

 pistol whipped him was a light-skinned black male between 18 to 20 years of age

 and there was no mention of beards and mustaches during his original description


 of his assailants. Th applicant is very dark skinned and he wore a beard and a

 mustache. The       photo spread used for the line-up was overexposed to show that

 the applicant was dark skinned. Also, the gun that was supposedly used left the

 home the same way it came in, as testified by Sonya Holder. But, the victim was

 able to find pieces of a gun in his bed, on the floor of his bedroom, and under


  the bed in which was already documented by CSI and no such evidence was then

 found. But the evidence was in his bedroom for three days before he brought it

 to the investigating detective.        See Brief in Support   pages 1-14.




Misc. Docket No. 06-103             Page 7 of13                  ATC 11.07 (Rev. 03-05-07)
GROUND TWO: THE            APPLICANT CONTENDS THAT THE TRIAL COURT ERRED IN NO GIVING
 A CORRECT CHARGE          TO THE JURY WHEN IT FAILED TO STATE WHETHER ACCOMPLICE WAS
 A WITNESS AS A MATTER OF FACT OR LAW.




FACTS SUPPORTING GROUND TWO:
 On   the    court's      charge     to    the jury before deliberation the charge is to be

 hypotheticaliy correct in its writting before the jury can make a determination

 on guilt or innocence. The charge failed to explain the accomplice as a matter

 of   law    or as an accomplice as a matter of fact. Pages 6 and 7 of the court's

 charge     only stated       that        the accomplice   was in fact only as an accomplice

 and that caused a significant harm to the applicant in recievinq a fair trial.

  See Brief in Support pages 14-17.




Misc. Docket No. 06-103                     Page 8 of13                 ATC 11.07 (Rev. 03-05-07)
GROUND THREE: THE APPLICANT CONTENDS THAT THE EVIDENCE PRESENTED VJAS MANUFACTURED
AND WAS NOT LEGALLY SUFFICIENT TO SUPPORT THE CONVICTION IN ACCORDANCE WITH
THE JACKSON V.          VIRGINIA STANDARD.




FACTS SUPPORTING GROUND THREE:
 Th<» victim       testified      that    he     was    beaten with a western style .22 revolver

 with     a     pearl    handle     in which the attackers were trying to sell to him- The

 gun     was     allegedly       broken to pieces durinq the attack.        The accomplice Sonya

 Holder        testified     that the gun came out                 alonq with the attackers but.

 three     or     four    days    later    the      victim brouqht pieces of a qun     and in fact

 after        examination    of     the   evidence        the trial court wil see that the pieces


 is parts from several different weapons in which shows the deception and the

manufactured evidence is insufficient to support the conviction.


See Brief in Support 17-21.




Misc. Docket No. 06-103                        Page 9 of 13                  ATC 11.07(Rev. 03-05-07)
GROUND FOUR: THE          TRIAL   COURT   ERRED IN ALLOWING THE PROSECUTION TO OBTAIN
 A   CONVICTION BASED UPON PERJURED AND FALSE TESTIMONY AND A FAILURE TO CORRECT
THE PERJURED AND FALSE TESTIMONY AFTER IT WAS GIVEN VIOLATED THE APPLICANT'S
FIFTH AND FOURTEENTH AMENDMENT RIGHTS TO CONSTITUTIONAL DUE PROCESS OF LAW.


FACTS SUPPORTING GROUND FOUR:
 The applicant contends that the record shows that there was false and perjured

  testimony qiven durinq testimony presented by the State and that the victim and

 the accomplice witness conived the testimony together to make sure that the

 accused would take the charqe and be sentenced to prison due to her venqeful feelinqs

 and spite towars the applicant. The records show that the victim visited the

 accomplice Sonva Holder durinq her incarceration for this robbery aqainst him.

 See Brief in Support pages 21-28.




Misc. Docket No. 06-103             Page 10 of 13                ATC 11.07 (Rev. 03-05-07)
GROUND: FIVE: THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO USE LEADING
QUESTIONS DURING THE COMPLETE TRIAL PROCESS IN WHICH HELPED TO OBTAIN THE
CONVICTION.




FACTS SUPPORTING GROUND:
The State was permitted to use leadinq question in a especially egreqrious manner

that was throughout the entire direct examinations of their witnesses until the

defense counsel was then forced to object.     See Brief in Support pages 28-31.




    WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
             RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.




                                    10


Misc. Docket No. 06-103        Page 11 of 13                  ATC 11.07(Rev. 03-05-07)
rnnilNirSTX- THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE
STaS TO PRESET eSnEQUS OFFENSE TESTIMONY AND FAILED TO PRESENT EVIDENCE
THAT THE JURY COULD FIND BEYOND AREASONABLE DOUBT THAT THE APPLICANT CUMMirrsD
THE SAID OFFENSE OF AN EXTRANEOUS BAD ACT.

FACTS SUPPORTING GROUND;
«*> .nnHrant h-~h-a that the n^fr.ionv of extraneous acts were not admissible
durinq the guilt and innocence of the trial. Sonya Holder testified about drug
dealing and threats of aviolent nature toward her after the commission of the
offense. The applicant is entitled to only be tried for the crime in which he
was charge and not for being a criminal in general. See Brief of Support pages

31-37.
GROUND2 SEVEN: THE APPLICANT CONTENDS THAT HIS CONVICTION IS VOID WHEN THE
PROSECUTION PROMISED THE ACCOMPLICE-WITNESS SOMETHING OF VALUE FOR HER
INCULPATORY TESTIMONY AGAINST THE APPLICANT IN VIOLATION OF 18 U.S.C. §201(0(2).

FACTS SUPPORTING GROUNDS
The applicant contends that the testimony of Sonva Holder was purchased with a

promise of Tenancy bv r^H gvino nrnhaHon for the crime and tt»f hff fllso WQS
the only attacker that was convicted for the crime charged. See Brief in Support
pages 37-39.
<-uniIlMn* EIGHT- THE APPLICANT CONTENDS THAT DUE TO THE DEFICIENT PERFORMANCE
0GFRTOlJL CoS^'HE WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE
WHICH CAUSED AN ACTUAL AND SUBSTANTIVE DISADVANTAGE TO THE APPLICANT IN RECIEVING
A FAIR TRIAL.                           ,

FACTS SUPPORTING GROUND;
ThP trial counsel failed in his duty to provide adguate assistance in helping
client in recievinq a fair trial. Failure to call expert witness, failed to call
exculpatory witnesses,failed to object to extraneous offense testimony, failed
to preserve error, failed to request specific instruction and object to the courts
charge.   See Breif in Support pages 39-50.                               _
^t>™txii>» MTNF- THP APPLICANT CONTENDS THAT HE WAS DENIED EFFECTIVE ASSISTANCE
0GFR£uS KiREC? APPEA^R^AILUpS TO LITIGATE ALL AVAILABLE CLAIMS IN THE
VIOLATION OF THfcl SIXTH AMLNDMW11 OF THE U.S. OJNSi'liUllUN.


FACTS SUPPORTING GROUND;                                        .            ..
The appellate attorney Honorable Linda Icenhauer-Rameriz failed to litigate all
the available claims on direct appeal- See Brief in Support pages 50-53.
PROIJND2 TEN: THE APLICANT CONTENDS THAT FACTUAL INNOCENCE IS AN EXCEPTION TO
TOE ^EDPA'S ONE yIrSTATUTE OF LIMITATIONS AND/OR IS AGATEWAY FOR REVIEW OF THE
APPLICANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND EVIDENCE IS INSUFFICIENT
TO ESTABLISH THE REQUISITE FINDING OF GUILT IN THIS CASE.

FACTS SUPPORTING GROUND;                                          .
Since the federal court refused to entertain his writ due to the time bar issue
due to the actions of the district court clerk in Travis County for not filing
his application when it was recieved he was penalized by that 5 month interval.
Along with the ineffective assistance of counsel and with the alibi witnesses
this satifies the cause and prejudice standard to have this issue heard in court

and the applicant is satifying the exhaustion requirement before he can go to
federal courts. See Brief in Support pages 53-70.
rROUND' TWELVE: THE APPLICANT CONTENDS THAT THE STATE FAILED TO OBJECT TO THE
COURT'S CHARGE THEREBY FAILED TO PRESERVE ERROR FOR APPELLATE REVIEW WHICH THEN
SUSTAINS THE CONVICTION IN VIOLATION OF APPLICANT'S DUE PROCESS RIGHT OF LAW AND
DUE COURSE OF LAW RIGHTS AND DENIED HIM A FAIR TRIAL.                         ____

FACTS SUPPORTING GROUND;
ThP avprs ^h^t- <-hP hypol-h^H rally rvv-rprf inrv charap it had written Wflfl PTTQnPOUS

and that the State failed to object as well as the defense- See Brief in Support

pages 73-76.
GROUNDS TWELVE: THE APPLICANT CONTENDS THAT THE APPELLATE COURT MISAPPLIED
THE STANDARDS OF NEIL V. BIGGERS, IN THE AFFIRAMTION OF THE APPELLATE REVIEW.



FACTS SUPPORTING GROUND;
 The applicant contends that the appellate court did not follow all five factors

 of the SuorPiriP Court case as: stated", aboveiin.the determination of the use of
 the use of the photo line-uo of the in-court identification- See Brief in

 Support pages 70-73-
                                       VERIFICATION
        (Complete EITHER the "oath before a notary public" OR the "inmate'sdeclaration.")


                             OATH BEFORE NOTARY PUBLIC

   STATE OF TEXAS, COUNTY OF                                         .

                                    , BEING FIRST DULY SWORN, UNDER OATH, SAYS:

   THAT HE/SHE IS THE APPLICANT IN THIS ACTION AND KNOWS THE CONTENT OF

   THE ABOVE APPLICATION AND ACCORDING TO APPLICANT'S BELIEF, THE FACTS

   STATED IN THE APPLICATION ARE TRUE.




                                      Signature of Applicant

SUBSCRIBED AND SWORN TO BEFORE ME THIS                           DAY OF



                                    Signature of Notary Public




                                  INMATE'S DECLARATION
   I,          Robert Lee Brown                                  ^        BEING       PRESENTLY
   INCARCERATED IN             Eastham Unit. Lovelady Texas                 t DECLARE UNDER
   PENALTY OF PERJURY THAT, ACCORDING TO MY BELIEF, THE FACTS STATED IN
   THE APPLICATION ARE TRUE AND CORRECT.



   SIGNED ON M<3u 9% 2009




                                                11



   Misc. Docket No. 06-103                 Page 12 of 13                     ATC 11.07 (Rev. 03-05-07)
APPENDIX
           [EXHIBIT A]
%




    ?r-x
                                                             [EXHIBIT B]
                        TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION


REASON FOR REQUEST: (Please check one)
PLEASE ABIDE BY THE FOLLOWING CHANNELS OF COMMUNICATION. THIS WILL SAVE TIME, GET YOUR REQUEST
TO THE PROPER PERSON, AND GET AN ANSWER TO YOU MORE QUICKLY.
1. I_J Unit Assignment, Transfer (Chairman o! Classified!.-•<>.       5. L_.' Visiting List (Assi. Director of Clasideation. Administra
        Administration Building)                                              tion B\j'kiing}


2. D RestoratiohsOf Lost overtime (Un               if approved, it   6. !'_J Parole requirements and related information (Un't Parole
        will be forwarded to the         ffsciplinary Commil'vo)              Counselor


3. l~J Request for Promopef^Jn Class or to Trusty Class (Unit         7. L_! Inmate Pip^Record (Request for copy of record, intor-
        Warden-if approved, wnNie fonva.deJ to the Director ul                maiipi^onparbje eligibility, discharge date, detainers-Unit
        Classificatic
                                                                                ^ministration)

  1—'   „,
4. l_J Cle,      , -Pardon, parole, early out-mandatory supen-ision   8. L_i Personal Interview wifaa representative ofan outside agen
                of Pardons and Paroles. 86 W Shoal Creek Blvd.                cy [Tieatment Division, Administration Building)
        Austin, Texas 78711)
                                                                                                    SI




                                                                                                    >
TO               \/*J/>^s/M&?S.
                    <T     (Name and title of official)
                                                                                       DATE: &L-Q6> -<$G

ADDRESS: _p^2ga^7 /,^/X
                                                       [EXHIBIT B PG. 2]
SUBJECT: State briefly the problem on which you desire assistance.


                                                                                                  l/^^




Living Quarters: ^~- ?r?/-7~                                  Work Assignment: A/j»t^ S/7*Ar?j,
DISPOSITION: (Inmate will not write in this space)
                                [EXHIBIT C]




TOt      Troy C. Bennet Jr.
         Clerk Of Criminal Appeals
         In And For State Of Texas
         Capitol Station
         Austin* Texas 78711


REt      Robert Lee Brown, Cause Humbert 03-99-00534-CR & Trial
         Court No.:   00-2358


STYLEt   Robert Lee Brown, Applicant
         VS.
         The State Of Texas



DATEs    March 21,    2002


Dear Clerks

   On January 29, 2002 I mailed an original writ of habeas corpus
with a copy for the trial clerk to stamp or file mark ray copy and
return it to me. As of this date I have not received my copy of
the 11.07 nor any notice that the trial clerk forwarded the original
to your office. This brings the totar .lays to 59 days. Please advise
me whether you have received the original 11.07 and the date you
filed said writ. If you have not received the 11.07 then please
write the trial clerk for her to send it to you and forward my
copy file marked to me.
Sincerely,



Robert Lee Brown, Counsel Pro Se
TDCJ-ID.,NO.927914
Jordan Unit
1992 Hilton Road
Pampa, Texas 79065-9696


CCs'Ss   Trial Judge, Michael P. Lynch
         167TH Judicial District Court
         Travis County Courthouse
         P.O.   Box 1748
         Austin, Texas 78767


RLB/lwws file
                                 [EXHIBIT D]




                           Robert Lee Brown #927914
                                 Jordan Unit
                               1992 Hilton Rd.
                                Pampa/ TX.   79065
                                 March 27, 2002



Amalia Rodriguez-Mendoza
District Clerk
Travis County
P.O. Box 1748
Austin, Texas     78767

RE: Ex Parte Robert Lee Brown   Cause No. 002368



Dear Mrs. Mendoza,

     Please be advised that it has been 48 days since I have mailed you my
11.07 Application for Habeas Corpus in the above caase no. I am aware that your
Court recieved the Writ no later than February 4th of this year, by the latest
I should have had a response from the State by no later than February 18, 2002.
And I should have heard from the Court*s Recoiranendation no later than March 13,
2002. This is to inform you that I have not recieved neither one and that is
including the number of the Writ once it was filed. Could you please inform me
of the status of the Writ. I am thanking you in advance for your cooperation
on this matter.




                                                                      tted,



                                                  ^Roberfe^tee B^bwhT927914
                                                  Applicant Pro-Se.




CC: File
                                 [EXHIBIT E]




Robert Lee Brown §927194
Jordan Unit
1992 Hilton Rd.
Pamas, TX.  79065

Date: April 10, 2002.

District Clerk
Amalia Rodriguez-Mendoza
Travis County
P.O. Box 1748
Austin, TX..78767

RE: Ex Parte Robert Lee Brown   Cause No.   002368

Dear Mrs. Mendoza,

     Please be advised that this is my second request for the cause no., and the
status on my 11.07 Writ of Habeas Corpus. I have still not recieved a response
from your office. I would like to be informed of the Status of the 11.07. I am
waiting patiently for a response from you. I want to make sure that I will not
get time barred from my Federal Petition.




CC: FILE
                                    [EXHIBIT F]




           Robert Lee Brown §927194
           Jordan Unit
           1992 Hilton Rd.
           Pampa, TX.    79065

           Date: May 1, 2002.

           Travis County District Clerk
           Araalia Rodriguez-Mendoza
           P.O. Box 1748
           Austin, TX.   78767

           RE: Ex Parte Brown    Cause No. 002368

Dear Mrs. Mendoza,

      Please be advised that this is my 3rd notice requesting any and all status
on ray 11.07 Writ of Habeas Coprus. Why is it taking so long to have it filed?
Could you please let me know? The Writ was mailed from my unit on the 27th of
January, surely it does not take this long to put a file stamp on it and allow
the Court to rule on it?




CC: File
                                             [EXHIBIT G]



                                             COUNTY OF iKAViS
                                              STATE OF TEXAS



AMALIA RODRIGUEZ-MENDOZA                                                            P.O. Box 1748
            District Clerk                                                        Austin, Texas 78767


Tuesday, June 04,2002

BROWN.ROBERT LEE
927914

K-201-B
1992 HILTON RD.
PAMPA, TEXAS 79065

         RE: Application for Post Conviction Writ of Habeas Corpus
             Cause Number: 002368-A
             Ex Parte: BROWN.ROBERT LEE
             In the 167TH Judicial District Court of Travis County, Texas
Dear Sir:


   Your application for post conviction writ of habeas corpus has been received and filed on
06/04/2002, and bears the above cause number.

   Acopy of your application for post conviction writ of habeas corpus has been forwarded to the
District Attorney of Travis County, Texas.

                                                             Respectfully,

                                                             AMALIA RODRIGUEZ-MENDOZA
                                                             District Clerk, Travis County, Texas




                                                             Deputy



copy to: District Attorney, Travis County, P.O. Box 1748, Austin, TX 78767
                               [EXHIBIT H]




Robert Lee Brown §927194
Jordan Unit
1992 Hilton Rd.
Pampa, TX.   79065

Date: June 10, 2002

Travis County District Clerk
Amalia Rodrigues-Mendoza
P.O. Box 1748
Austin, TX. 78767

RE: Cause no. 002368-A

Dear Mrs. Mendoza,

     I thank you for your response to my letter dated May 1, 2002. Thank you for
letting me know the status on my Writ. I have but one question? It took 124 days
from the time it left my unit that my Writ was file stamped, will and how will
this affect my Federal time clock for my §2254 Petition?




CC: FILE
                             [EXHIBIT I]




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                              [EXHIBIT J]




AMAL/A ROQRHkJ&L-MEJilOoZA                               flue, % su^x.
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                          [EXHIBIT K]



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                                     [EXHIBIT L]




                              CHRONOLOGICAL     TIMELINE


STATE

Convicted and Sentenced                            May 10, 2000
Direct Appeal filed                                January 29, 2001
Appeal affirmed                                    July 26, 2001
Motion for Extension of Time
for P.D.R.                                         Auqust 17,    2001
Granted until                                      October 26,    2001
Mandate issued                                     November 9,    2001
Application for 11.07 filed                        January 27, 2002      See Exhibit B
Recieved in District Court                         January 31, 2002
Letter    to   Court of Criminal Appeals           March 21,    2002     See   Exhibit C
Letter    to   Travis County District Clerk        March 27,    2002     See   Exhibit D
Letter    to   Travis County District Clerk        April 10, 2002        See   Exhibit E
Letter    to   Travis County District Clerk        May 1, 2002           See   Exhibit P
Letter from District Clerk                         June 4, 2002          See   Exhibit   G
Letter to Travis District Clerk                    June 10, 2002         See   Exhibit   H
Letter to Travis County District Clerk             June 16, 2002         See   Exhibit   I
Letter to Travis County District Clerk             Auqust 9, 2002        See   Exhibit   J
Motion of Response and Statute of Writ
of Habeas Corpus                                   August 14, 2002       See Exhibit K
Writ of Mandamus filed                             May 29, 2002
Writ of Mandamus and 11.07 denied                  September 11, 2002
11.07 Writ of Habeas Corpus recieved
at CCA.                                            Auqust 5, 2002

FEDERAL

Writ of Habeas Corpus §2254 filed                  March 10,    2003
Report and Recommendation                          March 19,    2003
Objection to R & R                                 April 9, 2003
Objection Overruled                                April 11, 2003
Order denying Writ for Time Bar                    April 11, 2003
Motion for Rehearinq                               April 25, 2003
Denied                                             May 5, 2003
Notice of appeal                                   May 15, 2003
Petition for COA                                   June 30, 2003
Mandate issued                                     October 22, 2003
Writ of Certeorari                                 Jan 14, 2004
60B Motion                                         March 30, 2004
denied (Writ of Certeorari)                        May 14, 2004
Notice of appeal of
60 B Motion denied                                 June 3, 2004
Notice from 5th Circuit                            June 29, 2004
COA due                                            August 8, 2004
IFP filed                                          July 22, 2004
denied as moot                                     July 23, 2004
Notice of appeal                                   July 6, 2004
Petition for Authorization                         July 26, 2004
60b motion denied                                  Auqust 4, 2004
Petition for Authorization denied                  September 8, 2004




                                          (1)
                            CHRONOLOGICAL TIMELINE


Request for IFP filed                        April 12, 2005
Request for successive Petition              August 7, 2006
Petition for Authorization                   August 31, 2006
Order to consider Successive Application     November 8, 2006
and Sanction warning issued

STATE


Second 11.07 Application filed                August 19, 2008
Findigs of facts                              September 24, 2008
Filed to CCA                                 October 16,   2008
Filed motion to dismiss 11.07
application                                  October 19, 2008
Dismissed under 11.07 §4                     October 24, 2008
dismissed without written order               November 19, 2008




                                     (2)
                                           [EXHIBIT M]




                                            STATE LAW LIBRARY
                                               PO BOX 12367
                                          AUSTIN, TEXAS 78711-2367



To: Robert Lee Brown - # 927914
Date: 3/2/2009
From: Inmate Copy Service


Re: PD-1613-01: Docket Sheet.

Thank you for your request for copies dated February 27, 2009. Unfortunately, we are unable to
process your request as we received it.




We are unable to locate a docket sheet for your PDR filings. Please find enclosed a print out of
CCA's Case Events for PD-1613-01. Yourmotion for Extension of Time was disposed on 08.17.2001
and time to file was extended until 10.26.01. Enclosed is an estimate for copies of your Motion for
Extension of time and Motion to File FewerCopies. Letters from CCA granting these motions are
included with these documents.




The State Law Library accepts requests for photocopies of material held in our collection (with
specific cites) or court records held by the Court of Criminal Appeals of Texas or the Third Court
of Appeals.
                                [EXHIBIT N]




               OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
                   P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
 RE: Writ No. 52,699-01
STYLE: Robert Lee Brown
TRIAL CT NO:
September 11, 2002

     This is to advise that the Court has denied without
written order the motion for leave to file original
application for writ of mandamus.




        tBcj COOWtR
                                 ROBERT LEE BROWN          TDC# 927914
                                 056 JORDAN UNIT
                                 1992 HILTON ROAD
                                 PAMPA TX 79065              &-C&



                                                                          K
                                             GROUND FOR REVIEW NO. 1

THE APPLICANT          CONTENDS         THAT NON-ACCOMPLICE EVIDENCE WAS INSUFFICIENT TO THEN
CORROBORATE          THE     ACCOMPLICE         WITNESS       TESTIMONY    AND CONNECT THE APPLICANT TO
THE OFFENSE, RESULTING IN INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION.

ARGUMENT AND AUTHORITIES:


       A      conviction        cannot       be had upon the testimony of an accomplice witness
unless        corroboration           by other evidence tending to connect the applicant with
the     offense        committed;          and the corroboration is not sufficient if it merely
shows        the    commission        of     the    offense.       Tex.Code.Crim.Proc.Ann. Art. 38.14

(Vernon 1979).
        The        test for sufficient corroboration is to eliminate from consideration
the     accomplice         testimony         and     then     examine     the other inculpatory evidence
to ascertain           whether         the     remaining evidence tends to connect the applicant
with       the     offense.       Martinez v. State, 163 S.W.3d 92 (Tex.App.Amarillo 2005);
HcDuff        v.    State/      939     S.W.2d      607, 613 (Tex.Crim.App.1997); Burks v. State,
867 S.W.2d 877, 887 (Tex.Crim.App.1994).
        In     order       to   then       determine        whether     the accomplice witness testimony
is    corroborated,             the    court       is   then      required to eliminate all accomplice
evidence and determine whether the other inculpatory facts and                            circumstances
in evidence           tend      to    connect       the     applicant to the offense. Martinez, supra
at 92; Munoz y. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993).
NON-ACCOMPLICE EVIDENCE PRESENTED

       The State presented three (3) wintesses in this case. The three witnesses
did give live              testimony.         The jury was instructed that Sonya Holder was an
accomplice.           (Court's        Cherge       P. 96). There was non-accomplice testimony that
tended to connect the applicant to the crime. The State's witness Pete Arevalo
testified           that   the       applicant       was the one who was holding the pistol during
the robbery.            (RR4:        211-216)      The non-accomplice testimony and evidence was
as follows:

DETECTIVE ROY GAY

       Testified           that he interviewed the victim several days after the offense.
During        the    conversation, the victim related how Sonya Holder and three black
males      had      come to his home and robbed him. (RR4: 131-134) The victim brought
in    pieces of a handgun which the robbers had allegedly used to beat him which
had     broken        into      several      pieces during the assault. Gay testified that this
weapon, State's exhibit #22, was a deadly weapon. (RR4: 138-144) Gay testified
after he talked to the victim, he had an arrest warrant issued for Sonya Holder.


                                                             1.
When she was arrested/ he then interviewed her and then she identified                                  all
the     persons          with       her      durinq      the      robbery as Robert, Sean, Ouincv. She did
not     know        their        last      names       but she thouqht Robert's last name was Caldwell

and     he     had       a half-brother named Kevin Caldwell. With that information,                      Det.

Gay     was        able     to      come        up    with the name of Robert Brown, the Applicant. He
showed Holder State's Exhibit                          24,      a picture of Applicant, and she identified
him     as     the       Robert         who      had participated in the robbery.         Det. Gay then made
a photoqraphic line-up                       containinq          Applicant's   photo   which   he   showed the
victim.            After      the victim              picked Applicant out, Det. Gay obtained an arrest
warrant for Applicant. (RR4: 147-159). Det. Gay also testified that the shotgun
was     later        recovered            on October 26, 1999, during a traffic stop of an unamed
individual, (who later turned out to be Albert Edwards). The serial number that
was found on the shotgun                        in the car matched the serial number furnished by the
victim. State's Exhibit 23, the shotgun, was admitted into evidence and Det. Gay
testified that State's Exhibit 23, was a deadly weapon. (RR4: 161-166).
VICTIM:       PETE AREVALO

        testified           that        he      had    known Sonya Holder for approximately four years
as a prostitute.                 (RR4: 190-192) (Sonya Holder testified that she was 21 years
old    when she was on the stand, that makes her 17 years old when she was first
having        sex for drugs                   with     the victim who was 56 years old at the time) He
related        that        on     the        night     of    September 29, 1999, Holder came to his door
at     around        10:30        p.m. and asked to use the bathroom. When he opened the door,
Holder        walked in, followed by two men who said they had                          a pistol they wanted
to     sell        to     him.      They        showed       him a chrome pistol and when the victim told
them     that        he     was      not        interested, one of the men began to hit him with the
pistol        in     the      head        while        the other man held him. The man stopped hitting
him     with        the     pistol           and      pointed     the gun at him and demanded that he show
them where he kept his money.
       The         victim began fighting back and he was struck again. The victim told
the     men        that     there         was        money in his bedroom, so the man with the gun went
into     the        bedroom         and       began      looking     for the money. When he could not find
it,     he     became         more upset- The victim was able to break free from the second
robber        who       had      been holding him and he ran for his shocgun which was in the
bedroom.            He     was      able        to get it and then a struggle ensued between him and
the two robbers over the shotgun. During                              the   strugyle the victim was knocked
onto     his        bed-      The       man who had been holdiny him climed on top of the victim
while        the     other       man         beaan      hittina     him with the uistol. At this time, the
 victim        saw     a     third man standina in the doorway. He veiled somethinu and the
 man     was     on        toy   of        the victim ran out. of the room. The man with the pistol
 was able to get the shotgun                       away     from   the victim and he pointed the shotaun
 at the victim and attempted to fire it; however, the shotgun misfired.
         When        this     occurred         the    robber       ran    out of the room with the shotgun.
 The     victim testified that he never got a good look at the third robber. After
 the robbers               left his home, he shut the door and called the police. (RR4: 193-
 208).     During his testimony, the victim identified Applicant as the individual
 who had the pistol during the robbery. (RR4: 211-216).
 ACCOMPLICE WITNESS RULE

         Article           30.14      of     the    Texas    Code        of Criminal Procedure, forbids any
 conviction           on     the      uncorroborated          testimony       of an accomplice witness. It is
 also provided               that      evidence        that shows only the commission of the crime is
 insufficient corroboration.

 REASONS FOR THE RULE

         The accomplice witness rule is a legislative creation, and is not required
 by "the common law!' Holladay v- State, 709 S.W.2d 194, 197 (Tex.Crim.App. 1986).
 The Court of Criminal Appeals has noted the reasons for the rule:
         The     rule's          roots      can      be traced to common law, where interested parties
         were precluded from testifying in both criminal and civil cases-"fear
         of perjury was the reason for the rule." The United States Supreme
         Court recognizes the basis of such rules were to set aside a class of
         persons who were more than likely to commit perjury than other witnesses.
         This suspicion and fear of perjury is not without reasons-
         Accomplices often strike bargins with the State, where the prosecutor
         agrees to a favorable sentencing recommendation in exchanye for the
         accomplice's testimony against the other person. Courts have recognized
         that a plea bargin contains a degree of compulsion. In addition, those
         accused of crimes tend to try to place the responsibiltiy for the crime
         that was committed on the other participants while downplaying their
         own participation, often in order to avoid the consequences of criminal
         acts. For these reasons, and to protect the criminal defendants in each
         case. The legislature has determined that uncorroborated testimony of
         an accomplice is not enough to support a criminal conviction.

Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App.1998).
         "The     rule reflects a legislative determination that accomplice testimony
implicatinq           another person should be viewed v/ith a measure of caution, because
accomplices often have incentives to lie, such as to avoid punishment or shift
blame to another person." Blake, supra at 454.
         An accomplice witness has been described as a discredited witness. It
         has frequently been said that the testimony of an accomplice witness
        is untrustworthy and that it should be recieved and viewed and acted
         on v/ith caution--.[T]he testimony of an accomplice witness is to be
         carefully scrutinized not only because of any interest he or she might
         have, but because his or her testimony is from a corrupt source.
Paulus v. State, 633 S.W.26 827, 843 (Tex.Crim.App.1981).
         "(S]uch      a     person      who testifies for the prosecution is infamous and her
testimony        is    considered        so    untrustworthy        a    conviction should not be based
solely     upon       that     testimony.          Because     such a witness is usually deemed to be
corrupt,        his    testimony is always looked upon with suspicion-" Holladay, supra
at 196. A accomplice is considered to be a discredited witness, and her testinrany
is to be scrutinized because of                      her possible       interest   in    the outcome of the
trial     in order to "minimize the danger that an accomplices self-interest might
motivate        her    to     falsely        implicate       others in her crime        in order to deflect
blame     and     punishment from herself." Jester v. State, 62 S-W.3d 851, 855 (Tex.
App.-Texarkana             2001);    Reyna      v.    State,     22 S.W.3d 655, 653 (Tex.App.-Austin
2000); See also 7 Wigmore on Evidence §2057 at 417 (Chadbourn rev. 1978).
         The Legislature has implemented and codified these beliefs about accomplice
witness testimony by enacting Art. 38.14 and its predecessor statutes. Holladay,
supra at 196.
INTERPRETATION OF THE ACCOMPLICE WITNESS RULE

         Who is an accomplice?: In 31ake, the Court of Criminal Appeals explained:

        Our case law lias clearly defined who is subject to the accomplice witness
        rule. A person who is merely present at the scene of the offense is
        not an accomplice; an affirmative act or omission is required.
        An accomplice participates before, during, or after the commission of
        the crime-presence at the scene of the crime is not required- though
        one is not an accomplice for knowing about a crime and failing to disclose
        it, or even concealing it.
Blake, supra at 454.
         "An accomplice             witness...must be subject to prosecution for the offense
thatc committed."            Moron      v.    State,     779 S.W.2d 399, 401 (Tex.Crim.App.1985);
see also. Creel v. State, 754 S.W.2d 205, 213 (Tex.Criin.App.1988}("One is not
and 'accomplice witness' who                  cannot      be   prosecuted      for the offense for which
the     accused       is    charged,"        nor     one who did not act with the requisite mental
state     for     that      particular        offfesne).        "[A] person is an accomplice witness
if    there     is    sufficient         evidence       connecting them to the criminal offense as
a blameworthy participant." Blake, supra at ^-SS; see also, Paredes v. State, 129
S.W.3d 530, 536 (Tex.Crim.App.2004); Creel, supra at 213; see also Kunkle                               v.
State, 771 S.W.2d 435, 439 (Tex.Crim.App.1985); Sinqletary v. State, 509 S.W.2d
572, 575 (Tex.Crim.App. 1974).
         To     determine           if someone is an accomplice, the Court should examine "the
record        for evidence of their participation in the crime," but it is irrelevant
whether        they were actually charged-"what matters is the evidence in the record."
Blake, supra at 455. Even                    if     a    person   is an    accomplice with an accused in
the commission of other offenses, she is not an accomplice in an offense unless
thereis a "showing of her complicity in the offense," i.e., the offense on trial.
Caraway        v.     State,     550        S.W.2d 699, 702 (Tex.Crim.App.1977); Easter v. State,
536     S.W.2d        223,     228-29        (Tex.Crim.App.1976). To render one accomplice, there
must be record evidence showing an "affirmative                           act on [the alleged accomplice's
part]     to assist            in"     the     offense. Caraway, supra at 702, citing Chappell v.
State, 519 S.W.2d 453, 460 (Tex.Crim.App.1975).
         Evidence         that       fails     to show participation in planning or promoting the
the     offense        is insufficient                 to render one an accomplice.   Caraway, supra at
702,     citing        Cross     v.     State,          550 S.W.2d 61 (Tex.Crim.App.1977). "[T]he fact
that     the        witness     was present              when   the crime was committed does not compel
the     conclusion           that     she     was       an   accomplice witness," so the mere fact that
a    witness        was      present     with          the parties who committed the crime before the
commission of the offense does not render one an accomplice. Caraway, supra
at 702, citing Quintanilla v. State, S.W.2d 329, 331 (Tex.Crim.App.1973);
Colunqa v. State, 527 S.W.2d 285, 286-87 (Tex.Crim.App.1975).
TYPES OF ACCOMPLICES

        An accomplice               witness        may be either an accomplice as a matter of fact
or as a matter of law. Blake, supra at 455.
ACCOMPLICES AS A MATTER OF 1AW:

        A person indicted for the same offfense as the defendant is an accomplice
as a matter          of law.          Solis       v.    State, 792 S.W.2d 95, 97 (Tex.Crim.App.1990);
Barrara       v.     State,      42     Tex. 260 (1875). When evidence shows that a witness is
an    accomplice          as   a matter            of law, the trial court should instruct the jury
that:

        (1) it        may      not convict on that witness's testimony unless evidence from
                a non-accomplice source needs to connect the defendant to the crime,
               and

        (2) evidence merely showing the commission of the offense is insufficient
               to corroborate an accomplice's testimony.
Blake, supra at 455; Article 38.14 T.C.C.P.
ACCOMPLICES AS A MATTER OF FACT
          On the other hand:
          [i]f    the        evidence presented         by   the parties is conflicting, and it is
          not clear whether the witness is an accomplice, the jury must initially
          determine whether the witness is an accomplice as a matter of fact.
          If the evidence is conflicting, it is proper to leave the question of
          whether           an inculpatory witness           is an   accomplice witness as a natter
          of fact under instructions defininq the term accomplice.
Blake, supra at 455.
          That        is,     if   some    evidence raises an issue as to whether a witness was
a blameworthy participant in                     the crime, an accomplice-as-a-matter-of-fact
instruction should be given.                     It is axiomatic that if no evidence raises an
issue, no such instruction is required. See and compare, e.g., Medina v. State,
7 S.W.3d 633, 641 (Tex.Crim.App.1999); Smith v. State, 721 S.W.2d 844, 851 (Tex.
Crim.App.1986).
THE DISTINCTION BETWEEN TYPES OF ACCOMPLICES IS VERY IMPORTANT:

          It is important            to     distinguish between witnesses who are accomplices
as    a    matter           of law and witnesses who may be accomplices as a natter of fact.
Unless      a witness is an accomplice as a matter of law, the jury will determine
whether         the     witness      is,     in fact,    an accomplice whose testimony is not, in
fact,      an     accomplice,         they    need not find corroboration of her before relying
upon it, in fact, corroborate true accomplice witnesses' testimony. See e.g.,
Solomon v. State, 49 S.W.3d 356, 362-63 (Tex.Crim.App.2001).
THE ACCOMPLICE WITNESS JURY CHARGE INSTRUCTION AND ITS PURPOSE:
          The    Court         of Criminal      Appeals      has recently spoken of the accomplice-
witness instruction's purpose:
          The prupose of              the     [accomplice witness]       instruction, therefore   is
          not to casr suspicion on the testimony provided by the accomplice or
          to encouraqe lurors to give it less weight than other testimony. Rather,
          the instruction merely reminds the jury that it cannot use the accomplice
          testimony to convict the defendant unless there also exists some non-
          accomplice testimony tyinq the defendant to the offense.
Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App.2006); Herron v. State, 86 S.
W.2d 621, 632 (Tex.Crim.App.2002).
          If     an     accomplice witness          instruction      is qiven regardinq a particular
witness,         though        the   evidence    did not     raise the instruction, the witness is
still       not        an accomplice,         and   her testimony may be used to corroborate the
testimony of the true accomplices. Solomon, supra at 362.
MEASURING THE SUFFICIENCY OF CORROBORATION OF ACCOMPLICE-WITNESS TESTIMONY:
          "The        accomplice witness rule is a statutorily imposed sufficiency review
and     is not derived from federal or state constitutional principles that define
the leqal           and    factual          sufficiency        standard." Cathey, supra at 463; Malik v.
State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). The "accomplice witness statute
simply        requires 'other evidence1 meaninq some non-accomplice evidence"; thouqh
there is no "practical                  difference between the statutory standard and reviewinq
evidence          'in the light most favorable to the verdict,"' the accomplice witness
rule     is       not     based        "upon    federal constitutional principles." Cathey,                 supra
at 463. "'The             corroborating             evidence      must    simply-in       some   general, perhaps
"significant,"             way-as       a     matter    of     logical         relevance tend to show that the
accused was             involved       in     the    behavior      constituting the charqed offense."',
quoting          Dix     and     Dawson,       Texas Practice and Procedure, Vol. 42, §31.201, p.
273     (1995).          Tne sufficiency             of evidence to corroborate accomplice-witness
testimony          is     assessed       under the "hypothetical correct jury charge" standard
applicable to all evidentiary sufficiency reviews- See Malik, supra at 240.
MUST TEND TO CONNECT APPLICANT TO OFFENSE, NOT JUST CORROBORATE ACCOMPLICE

TESTIMONY:

      It is well established that evidence corroborating the accomplice's testimony
but     not       tending        to connect the Applicant to the offense is insufficient "no
matter        how       much credit the iury might have aiven to such testimony." Paulus,
supra       at     843.        And,    "although an accomplice witness may state any number of
facts       that        are corroborated by evidence of other witnesses, still the facts
thus corroborated do not tend to connect the Applicant with                                  the crime,    then
corroboration on that basis would not meet the requirements of Article 38.14."
Caotaneda v. State, 682 S.W.2d 535, 538 (Tex.Crim.App.1984). "[A]ny evidence
which verifies extraneous matters                        without         tending     to   connect   the accused
to    the        actual        crime    charged       is insufficient." Walker v. State, 615 S.W.2d
728, 733 (Tex.Crim.App.1981).
      It was also pointed out                         [in Phillips' Treatise on Evidence]                 that a
      distinction              lies    between       confirmation         as    to   the circumstances of the
      offense and confirmation affecting the applicant's connection to the
      offense. Confirmation merely as to the circumstances of the offense is
      really no confirmation at all- Confirmation as to the applicant's only
      connection           to the offense,              however,         should be by independent evidence
      from which the jury may reasonably be satisfied, apart from the accomplice
      testimony, the applicant's connection to the offense.
Holladay, supra at 199.
      "The phrase               'tending to connect' has the ordinary dictionary definition,
'to     serve,          contribute       or     conduce      in    some degree or way...to have a           more
or less direct bearing or effect,' and, while not contemplating conjecture,
'has     some      tendency           to     prove        the    averments in the indictment.'" flolladav,
supra at 198.
       In     Hernandez         v.     State, 636 S.W.2d 617, 621 (Tex.App.-San Antonio 1982),
the     San       Antonio       Court        of     Appeals           stated, "there can be no conviction on
the     testimony of accomplice alone, no natter how many there may be, if their
testimony          is    not        corroborated by evidence apart from accomplice testimony."
This     proposition,               while     not        directly       taken   from prior case law, seems to
be an accurate interpretation of current law interpreting Art- 38.14.
       "The       accomplice         witness            rule     prevents...obtaining       a conviction solely
upon the word of a confederate of the accused. There must be other independent
evidence or             the     accused may not be convicted." Moron, supra at 401- Before
a    conviction         may be based                    upon     an accomplice's testimony, "there must be
corroborating            evidence,           other        than       the testimony of the accomplice witness
which tends to connect the applicant with the offense."
ARTICULATING THE STANDARD OF REVIEW FOR SUFFICIENCY OF CORROBORATION:

       The    statute          "requires           that        the    testimony of the accomplice witness be
eliminated          from       consideration              while       the   testimony    of the other witnesses
is     examined         for    evidence            of an incriminating nature tendinq to connect the
accused with the commission of the offense." Caraway, supra at 702; Moron, supra
at 401; Paulus, supra at 843; Edwards v. State, 427 S.W.2d 629, 632 (Tex.Crim.
App. 1968) Castaneda, supra at 537. The                                  reviewing      Court   should   consider
the combined            weiqht        of      all        non-accomplice evidence, even if it is on the
level        of   circumstantial.              See e.g., Richardson v. State, 700 S.W.2d 591, 594
(Tex.Crim.Apo.1985); see also, Jackson v. State, 516 S.W.2d 167, 171 (Tex.Crim
App.     1974)      quoting          Minor         v.     State,       108 Tex.Crim. 1, 299 S.W. 422, 428-29
(1927).
       "All       the    facts and            circumstance* in evidence mav be looked to for                  anv
corroboration, and the corrohorative evidence mav be circumstantial or direct.
Furthermore,            it     is     not     necessary              that the corroboration directly link the
accused       to       the crime or be sufficient in itself to                          establish guilt." Brown
v.     State,      672 S.W.2d               487,        488 (Tex. Crim.App.1984);          Paulus, supra at 843,
court may look to all facts and circumstances corroborating accomplice whether
direct or circumstantial.                     Evidence corroborating accomplice-witness testinrany
"is sufficient if the combined cumulative weight of the incriminating evidence
furnished         by     the        non-accomplice witness                  tends to connect the accused with
the commission of the offense." Romero, supra at 532.
       The rule "does not demand that there be 'other evidence tending to connect
the applicant with [the] offense committed.'" Holladay, supra at 204; Edwards,
supra       at 632; Minor, supra at 428; Cathey, supra at 462. "It is not necessary
that        the    corroborating         evidence directly           link the accused to the crime or
be sufficient in itself to establish guilt." Paulus, supra at 843. "Apparently
insignificant                 circumstances      sometimes       afford   most   satisfactory   evidence
of guilt          and corroboration of accomplice witness' testimony."
       The State is not called upon to point to some single or isolated fact
       which in itself, unrelated > to other proven facts, will be sufficient
       corroboration. It is combined and cumulative weight of the evidence then
       furnished by non-accomplice witnesses which supply the test. If by this
       rule it appears on appeal that before the jury there was proof that
       confirms the testimony of the accomplice witnesses to material facts
       tending       to       connect    the     accused with the commission of the offense, the
       is satisfied.

Walker, supra at 731; Edwards, supra at 632; Minor, supra at 429.
EACH CASE MUST BE CONSIDERED ON ITS OWN MERITS:

       Despite       the       many articulations           of    the standard and its boundaries and
limits,       "No        precise    rule can be laid down as to the amount of evidence that
is     required          to    corroborate the testimony of an accoaiplice, so as to sustain
a conviction of the accused." Paulus, supra at 844. Each case must be consider
on its own facts and circumstances.

       In    sum,        where    the    State     relies     upon an accomplice witness' testimony
       to convict the accused for a particular offense, the accomplice witness'
       testimony must be both material and must be corroborated by independent
       evidence          tending to connect the accused to the crime. As to whether the
       evidence          adduced is sufficient to corroborate testimony of the accomplice
       witness, such must, of course,                be decided on an ad hoc basis.
Holladay, supra at 200.
TENDENCY TO CONNECT SUFFICIENCY STANDARD:

       "Tendency          to connect"        rather than rational sufficiency is the standard
[for corroboration of accomplice-witness testimony]: the corroborating evidence
need not be sufficiency enough by itself to establish guilt." Solomon, supra at
361; Cathey, supra at 462. "The accomplice                        witness rule is satisfied if there
is   some         non-accompiice         evidence     which      tends to connect the accused to the
commission          of    the     offense      alleged      in the indictment." Hernandez v. State,
939 S.W.2d 173, 176 (Tex.Crim.Apo.1997). Circumstances                           not   individually   to
corroborate         accomplice          witnesses     testimony,      may,   when taken together, bre
such    that        "rational       jurors       could conclude" it tends to connect the accused
to the offense.
THE EVIDENCE IS INSUFFICIENT:

        The sufficiency of the evidence must be measured against a "hypothetical-
correct jury charge." Cathey, supra at 463; Malik, supra at 240. If the jurors
had     been       instructed          properly,        they would have been instructed that if they
believed Sonya Holder was                    an     accomplice       as   a   matter of law in the offense
as that term had been defined for them, they could not convict on her testimony
unless it was corroborated by other non-accomplice testinrany.                             In   the Court's
Charge to the jury they were instructed that Sonya Holder was just an accomplice
and as a result, the jury charge naming her as an accomplice was not correct.
        Determining            the strength of non-accomplice evidence requires examination
of    (1)      its reliability or believeability and (2) the strength of its tendency
to connect              the Applicant to the crime. Herron, supra at 633(discussing issue
in alleged jury-gharge error context). The "reliability inquiry nay be satisfied
if: (1) there is non-accomplice evidence, and (2) there                              is   no rational   and
articulable          basis       for disregarding              the   non-accomplice evidence or finding
that it fails to connect the applicant to the offense."
THE RELIABILITY INQUIRY

        The Supreme Court set out five nonexclusive factors to be used to assess
reliability             testimony. Testimony is considered to be reliable If the totality
of the circumstances reveals no substantial likelihood misidentification despite
a suggestive pre-trial procedure.
(1) The opportunity                   of    the    witness to view the criminal at the time of the
      crime.

        The     victim described                  one   robber as an 18 to 20 year old light skinned
black male.             He     told police that the light skinned black male hit him in the
head with the pistol and when the victim grabbed his shotgun, the light skinned
black       male        took the shotgun away from him and left with it. The victim never-
described          any    of     the       assailants as having a beard or a mustache. (RR4: 93-
110, 117-121).            Detective Gay testified that the victim described his attackers
as    (1)      a    young       male,       18 to 22, light-skinned, who initially beat him witii
the     pistol      and        then     took       the shotgun from him and left with it; and (2) a
darker        skinned        black      male.      Gay       testified that the victim told him that lie
did     not    get a         good       look at the second individual and did not feel like he
coould        identify         him-     However,        he    knew that the second individual was very
dark.       (RR4:       170-172)        On cross-examination, Detective Gay also admitted that
Applicant          is    very     dark skinned arid at the time of trial had a full mustache
and beard. (RR4: 172).


                                                              10
        During         his      testimony, the victim identified Applicant as the individual
who had the pistol during the robbery, (even                          after    he testified      that   the
one who beat him and had the pistol was light-skinned, 18 to 22 years of age,
when in fact the Applicant                    was dark-skinned        and     32   years of age when this
crime was committed.)
           In    the liqht of the victim's vague and general description of the person
who beat him with the pistol and fought with him                          over     the   shotgun as light-
skinned and from the age 18 to 20. Every                          witness,     including    Detective   Gay
agreed          that     the    Applicant          is a very dark-skinned individual. Detective Gay
even testified that the photograph was not an accurate portrayal of Applicant's
true       appearance in terms of skin color. The accomplice witness, Sonya Holder,
testified          that        not only was Applicant very dark-skinned but he was "thirty-
something."
(2) The witness's degree of attention.
        The photo            that     the    Detective     used for identification of the Applicant
as     a     light-skinned            individual       was just plain false, the trial court never
made       any specific              findings       regarding   the victim's opportunity to view his
assailant.             However the record does show that the victim and the light-skinned
individual            struggled        for several minutes. However it must be noted that much
of     the       time during           the struggle       was spent wrestling over a shotgun common
sense       indicates          that       the victim was looking at the gun during this time and
not     at       the assailant's             face.     Had he been paying more attention, he would
have been able to give more detail.
        The victim testified in court about the identification of the Applicant.
I    will       never        forget     that nan. Whenever he released—when he's released, if
he    should be released, he will remember me. They gave me a beatiny, a beating
that I will never forget. This is                       not even human,      to beat a person like that,
break       their       teeth       and 48 stitches and my body was bruised up. You think I'm
going       to        forget        that    man?      I will never forget that man. ...I still have
him in my head— photocopy of him in my head. (RR4: 234).
        Yet,      although          the     victim    testified     that the Applicant      as his light-
skinned young             attacker,          the     evidence show that in fact the victim was able
to    give       no     details of the assailant's description. He did not recall if the
attacker had facial hair (the Applicant has worn a                             full   mustache   and beard
for     some      time);        he could not describe any facial features; and he could not
give a clothing description- But, yet he has a photocopy of him in his head.


                                                           11
(3) Accuracy of the victim's prior description of the criminal.
                When        initially           asked     to describe his assailant's by the officers
who     responded           to     the     initial robbery call, the victim could only state that
"there        was     a     female that he knew and that there were three black males that
accompanied her." (RR4: 101) Later at the hospital, the victim then                               described
one     of the            robbers        specifically "[a]          a black male, 13 to 20 years of age,
light        skinned.           (RR4:     106-108)        He    made   no mention of the assailant having
a     beard     or        mustache        and     he could not describe any of the clothing worn by
any     of     the        three     men.        (RR4: 106) The victim's vague verbal description of
the light-skinned                  attacker        never       changed. (RR4: 170) He did tell Detective
Gay that            he did         not     think        he could recognize the dark-skinned man. (RR4:
172) Clearly,              the victim's description of his main attacker was so vague and
general        that        it    could      have        applied     to thousands of people. Yet, he had a
photocopy of him in his head. (RR4: 234).
(4) The level of certainty demonstrated by the victim.
        The victim appeared to be certain of his identification of applicant
as     the light-skinned attacker after he was shown the photographic lineup/
his    story        changed        compared to the other person that was with him, the other
person—the other person black male that was                                with him, he was lighter colored,
if you         compare          the other person with him, you would say he's light skinned.
That's       what     they        wanted.        I mean, they wanted a description. One was darker
than     the    other.           The     other     one was darker. What am I suppose to say? Well,
I mean, what am I supposed—how do—description that they want? (RR4: 235).
(5) The length of time between the crime and the confrontation.
       This     crime           occurred        on September 29, 1999 and the confrontation in the
courtroom between Applicant and the victim occurred on May 2, 2000, and eight
month interval. Applicant would point out that during this interval, the
victim maintained his relatiosnship with the accomplice witness, Sonya Holder.
This woman is responsible for his beating, why carry on a relationship with a
person who caused you so much trauma. In                            fact    both   Holder   and the victim,
who had        a relationship               of     prostitute-customer drug supplier prior to the
crime admitted that the victim had visited Holder several times during her
incarceration for this offense and in fact the victim had even put money
on her        account at the jail. (RR4: 83-84, 224-226) Certainly raises the issue
that a possibility that some of their discussions during this eight month
interval included Holder suggesting to the victim that Applicant was one

                                                               12
of her accomplices.                  Holder       testified     in response to questioning by both the
State      and the defense that she was recieving testimonial immunity in exchange
for     her testimony and it was also her hope that in exchange for her testimony
against Applicant, that she would recieve probation. (RR4: 39-40, 72, 88).
CONCLUSION

        The   Applicant              has proven through the preponderance of the evidence that
accomplice         witness           and    non-accomplice testimony was insufficient to support
the conviction                 and    request       that a evidentiary hearing be held to determine
the     merit      of      the       claim       and   if this reviewing court finds in favor of the
Applicant        it       is     required         to order a new trial or the immediate release of
the Applicant.


                                                GROUND FOR REVIEW NO.    2

APPLICANT CONTENDS   THAT THE TRIAL COUR ERRED IN NOT GIVING A CORRECT CHARGE
TO  THE JURY WHEN IT FAILLED TO STATE WHETHER ACCOMPLICE WITNESS WAS A WITNESS
AS A MATTER OF FACT OR AS A MATTER OF LAW.



ARGUMENT AND AUTHORITES:

A.    FACTS

         On   page         6    and 7 of the Court's charge to the jury it states: "You are
charged that Sonya Holder was an accomplice if any offense                           was    committed,
and you are instructed                     that        you cannot find the defendant guilty upon the
testinrany of Sonya Holder unless you first believe that the testinrany of
said Sonya Holder is tue and that it shows the defendant is guilty as charged
in the indictment.

B.    APPLICABLE LAW

       The    Court         of       Criminal      Appeals has established a standard of review to
whether or not the Applicant was harmed by the trial                         Court's error in failing
to     include     the         correct          instructions     in the jury charge that requires that
the    reviewing           court       to examine the evidence presented at trial. AIman2a v.
State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1985)("i\'e that                       finding    error   in
the    Court's        charge          to    the    jury begins-not-ends the inquiry; the next step
is    to   nake       an       evidentiary review along the lines described in Davis, supra
as    well    as      a    review          of    any other part of the record as a whole which may
illuminate the actual not just the theoretical, harm to the accused.")-
       At the conclusion                   of final arguments of counsel the Court prepared the

                                                           13
proposed          charge          to the jury and presented it to the State and the Applicant's
counsel to permit each an opportunity to enter                             objections    to   the 'proposed
charge and neither the State or the Defense objected to the charge. The Court's
failure          to    include          the correct         instruction on accomplice witness as a fact
question for the jury to decide if the witness, Sonya Holder, was a accomplice
as a matter of fact, or as a                      matter of law. See McDuff v. State, 939 S.W.2d

607, 613 (Tex.Crim.App.1977). The individuals, Sonya Holder, Robert L. Brown,
having been indicted                    for committing the offense, were accomplices as a matter
of law. Smith v. State, 897 S.W.2d 348, 350 (Tex.Crim.App.1995).
           The only         evidence that would have been available to the State to support
a     conviction           of      the     Applicant       would have been the testimonial evidence of
the witness                who was a          party (accomplice) in the offense. Of course, under
Texas Law,             a        conviction cannot be sustained on the uncorroborated testimony
of individuals who were accomplices in the commission of the offense.
           Pursuant to T.P.C. §7.01. Parties to Offense (a) each party is responsible
as     a    party          to    an     offense     if the offense is committed by his own conduct,
by     the conduct of another for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with the commission of the offense.
(c) All          traditional           distinctions between accomplices and principles are then
abolished         by this              section,     and each party to an offense may be charged and
convicted          without         alleging        that     he acted as a principle or accomplice, and
T.P.C.       §7.02.         Criminal         Responsibility        for   Conduct    of Another provides: a
person       is criminally                 responsible       for an offense committed by the conduct
of another...(2)acting with                       the     intent   to promote      or asist the commission
of the offense,                 he solicits,            encourages, directs, aids, or attempts       to aid
the     other         person       to      commit the offense;...In addition, Tex.Crim.Proc Art.
38.14.       Testimony            of     Accomplice, informs us that, " conviction cannot be had
upon       the    testimony            of an accomplice unless corroborated by other evidence
tending to connect the defendant with the offense committed; and corroboration
is     not sufficient                 if   it merely shows that the commission of the offense."
Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002).
       Sonya          Holder,         applicant's        codefendant,    testified     that   she had had a
relationship            with       the     victim       for approximately five years wherein he would
give her money                   and drugs for sex. (RR4: 32-41). She also testified that she
also had a              relationship          with Applicant at the same time wherein they would
have       sex and do drugs together. (RR4: 42-45). She testified that on September


                                                            14
29,     1999,      she     went        to    Pete Arevalo's house to rob him and in that robbery
she     took drugs            from     Arevalo's          home. She testified that she took the drugs
to Brown        and they smoked them. (RR4: 45-46). Holder related that they drove
to     to the victim's home which was located in his automotive shop. She knocked
on     the    front      door        and when the victim answered the door,                 she told him that
she     needed      to     use       the bathroom.           The others were waiting off to the side.
Holder       testified          that     she       entered the victim's small apartment and proceed
to     the    bathroom.         Holder        testified that when she returned from the bathroom
she saw         the applicant               holding       the victim, by his neck up against the wall
and    Quincy       was       holding        the gun       to the victim's head. (RR4: 52-54). Surely
she    satisfied          the      legal      requirement          as set out in §7.02 in that arguably
she     had the requisite intent, knowing that they were going to rob the victim
and she certainly                  did aid in the preperation having helped in the securing
of the victim by knocking on the door.
         As a      consequence              Holder satsfied both the legal and factual conditions
of §7.01 and §7.02. With these facts, concerning the knowledge and the conduct
of the witness, it is not unreasonable to expect that, had the required correct
instructions          regarding             accomplices       been       included     in the charge, the jury
could        have determined that Holder was a accomplice as a matter of law.
         A person         is an accomplice if she participates before, during, or after
the     commission         of      the      crime     and can be prosecuted for the same offense as
the     applicant         or     for a         lesser-included offense. Medina v. State, 7 S.W.3d
663,     641       (Tex.Crim.App.1999)               cert,    denied        529     U.S. 1102, 120 S.Ct. 1840,
146 L.Ed.2d 732 (2000). The trial                         court      failed     in    its duty to include the
correct        instructions            were    Holder        was    a    accomplice as a natter of law. It
is enshrined             in     our     law that the jury is the sole trier of facts, not the
court.       Tex.C.Crim.Proc                Art.     36.13 Jury          Judge of Facts, provides, "unless
otherwise provided in this code, the jury is the exclusive judge of the facts,
but they'rebound              to     recieve the law from the court and be governed thereby."
         In     failure         to     include       the correct instructions on a fact question in
regards       to    accomplices             and     accomplice          testimony     the trial court has then
impermissibly            intruded           into    the      are of fact determination reserved to the
jury and usurped its function as exclusive trier of fact. Applicant asserts that
the evidence          is      insufficient           to    support       when     measured by the evidentiary
standard        established            by    the     Court    of     Criminal Appeals in Malik v. State,


                                                             15
953 S.W.2d 234, 239 (Tex.Crim.App.1997)                         where     the court overruled prior case
law governing             sufficiency        of    evidence       to support a conviction and stated
the new rule as follows: "Hence, sufficiency of the evidence should be nseasured
by the elements            of    the     offense        as defined by the hypothetical correct jury
charge       in     the case.         Such   charge would be one that accurately sets out the
law,      and is authorized                by     the     indictment, does not necessarily increase
the State's          burden          of proof or unnecessarily restricts the State's theories
of     liability,         and adequately describes the particular offense for which the
applicant was tried."
         However,         should this        reviewing         Court      determine that the trial court
erred     in      failing       to     include    an     accomplice as a matter of law instruction
concerning         Holder       this Court must conduct a harm analysis. The actual degree
of harm is assessed from the following                         factors:

         (1) the charge itself;
         (2) the state of the evidence including contested issues and the weight
             of the probative evidence;
         (3) arguments of counsel;
         (4) any other relevant information revealed by the record of the trial as
               a whole.

Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App.1996).
        The       Court     having      denied      the     jury the opportunity to discharge their
function       as    the exclusive trier of fact has denied the applicant a fair and
impartial trial. The only remedy which would redress the harm to the appplicant
is to reverse and remand the cause to the trial court for a new trial on the

merits.



                                          GROUND FOR REVIEW HO. 3

THE APPLICANT CONTENDS THAT THE EVIDENCE PRESENTED WAS MANUFACTURED AND WAS
NOT LEGALLY SUFFICIENT TO SUPPORT THE CONVICTION IN ACCORDANCE WITH THE JACKSON
V.   VIRGINIA STANDARD.


ARGUMENT AND AUTHORITES:

a.   FACTS

        According         to    the charge and             the testimony the court determined that
the     crime     happened       on     September        30, 1999 into October 1st 1999. And where
Sonya     Holder      was accompanied by three black males and went to Pete Arevalo's
home to rob him of money and drugs. (RR4: 45). He was                            allegedly   beaten with
a Western Style .22 Revolver with a pearl handle. (RR4: 54, 199, 133). The gun


                                                          16
was     supposedly            disintergrated           when    it    was     used to beat the victim on his
head^           and     three days           later Arevalo brought the pieces to the Detective in
charge of             the    investigation         Roy Gay. (RR4: 13C). The fragments consisted of
the broken pearl handle, A                     slide    spring       from    an automatic weapon, a barrel
that had a                  ten degree bend in it, a, cylinder locking pin, and other small
pieces.         See State's exhibit #22, (Applicant's Exhibit A).
          Pete        Arevalo testified             that      he     found    pieces of the gun in his bed
and on          the floor and under his bed. (RR4 140, 229, 230, 231, 142). This was
after the Criminal Scene Investigators came in and took pictures of the small
apartment and the bedroom in which this altercation took place. The Accomplice
witness         Sonya Holder testified that Sean handled the pistol when he exited the
apartment. She also testified that the gun belonged to Quincy. (RR4: 54, 61).
She later testified that they took the guns to someone elses home and tried to
figure what to do with the .22 and the shotgun. (RR4: 63). She also testfied
that there was only one pistol. (RR4: 71).
          Since Sonya              Holder     testified       that    the    pistol   that was taken in the
home of Arevalo and taken out of the home of Arevalo, where did the pieces of
the different pistols come fror.:. Both the victim and the detective testified
that Pete Arevalo has a son who worked as a detective in the Austin Police
Department. (RR4: 163, 228).
B. APPLICABLE LAW

      The Applicant may assert that the evidence is legally insufficient
under two seperate thoeries. See Fuller v. State, 73 S.W.3d 250, 252 (Tex.
Crim.App.2002). First, he may claim that the evidence is not legally sufficient
as    a     matter          of     federal     constitutional law. The standard for reviewing the
legal sufficiency of the evidence under this standard is whether after viewing
all       the     evidence in the light most favorable to the prosecution any rational
trier       of        fact    would     have       found   the "substantial elements of the criminal
offense as defined by state law" beyond a reasonable doubt. Jackson v. Virginia,
99 S.Ct- 2781, 2789, n.12 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex,Crim.
App.2000); Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App.2005).
     A review for legal sufficiency does not involve a reweighing of the
evidence         or     a     substitution of the jury's judgment. King v. State, 29 S.W.3d
556     (Tex.Crim.App.2000).                 The    jury is to be the exclusive judge of witnesses
credibility            and       the determiner of the weight to be accorded to the witnesses
testimony,            and     is    to reconcile conflicts in the evidence, whether properly



                                                           17
admitted or not in determining                         whether        the evidence was legally sufficient.
Lockhart        v.   Nelson,        488        U.S.       33     (1988); Johnson v. State, 967 S.W.2d 410
(Tex.Crim.App.1988).               In any criminal cases the State must prove every element
of     the element          of     the offense beyond a reasonable doubt. Tex.P.Code §2.01;
Tex.C.Crim.Proc              Art.        38.03;        In      Re Winship, 397 U.S. 358 (1970); Alvarado
v.     State, 912 S.W.2d 199 (Tex.Crim.App.1995). A conviction is not sustainable
on appeal if the evidence does not sufficiently establish all material evidence
of     the offense          charged.           Gilbertson v. State, 563 S.W.2d 606 (Tex-Crim.App.
1978). If the          evidence           is      insufficient          under    constitutional due process,
the conviction             must     be       reversed          and the applicant acquitted. See Burks v.
U.S., 1, 12, 98 S.Ct. 2141, 2150, 51 L.Ed.2d 1 (1978); Fuller, Supra at 253.
        In the alternative, the applicant may assert that the evidence is leqally
insufficient         under        the State law sufficiency standard. Fuller, suora at 253.
Under     the    State       standard,            evidentiary         sufficiency is measured aqainst the
"elements of the offense as defined by the hypotheticaliy correct jury charge
for     the case."         Gollihar v. State, 46 S.W.3d 243, 255-56 (Tex.Crim.App.2001).
A "hypothetical correct jury charge" encompasses the statutory elements of the
offense       as modified by the charging instrument. See Curry v. State, 30 S.W.3d
394, 404 (Tex.Crim.App.2000). If the evidence is determined to be insufficient
under this State law standard the applicant's conviction                                  must    be   reversed
and     the cause remanded for a new trial. Fuller, supra at 253; Gollihar, supra
at 248.

       Under both standards,                      a    reviewing       court is not to position itself as
a     thirteenth      juror        in    assessing             the evidence. Dewberry v. State, 4 S.W.3d
735,    749     (Tex.Crim.App.2000); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.
App.1988). It is             not    the        reviewing            court's duty to disregard, realign, or
weigh evidence, this               the       fact      finder       has already       done.   Moreno, supra at
867. Rather,         the     verdict         must      stand         "unless    it is found to be irrational
or unsupported             by more           than     a        'mere modicum' of the evidence," with such
evidence "being viewed under the Jackson light." Muniz v. State, 851 S.W.2d 233
246 (Tex.Crim.App.l993)("we do                        not       reevaluate      the   weight and the evidence
credibility,         but    act as only to ensure that the jury reached a rational and
clear decision.").
       The    fact     finder,          as     the     exclusive         judge of the facts, the witnesses
credibility,         and     the weight               given their         testimony, is free to believe or
disbelieve       the       testimony         or       reject any or all the evidence on either side.


                                                               18
Adelman v. State, 828 S.W.2d 412, 418 (Tex.Crim.App.1992). The                           fact-finder do
not     need      to     believe       even      uncontroverted      testimony. Johnson v. State, 571
S.W.2d 170,              173    (Tex.Crim.App.1978).           Conflicts   in the evidence, then, are
for the for the jury to decide and resolve, and a mere conflict in the evidence,
without        more,       is not        enough to render the evidence insufficient to support
a verdict.          Upton v. State, 853 S.W.2d                 548, 552 (Tex.Crim.App.1993).
         Practically,            the     corrsct       standard    of   review   requires the reviewing
court        to   resolve        inconsistencies          in the testimony in favor of the verdict.
See     Turro       v.    State,       867      S.W.2d 43, 47-48 (Tex.Crim.App.1993). The Court's
to     review      the     evidence           "as    it is already weighed by the jury's verdict to
determine         whether        any rational trier-of-fact could have found the essential
elements of the offense beyond a reasonable doubt." Moreno, supra at 867; Turro,
supra at 47. In testing                   the       sufficiency    of the evidence, "a reviewing court
must not          focus on        what     the       State's evidence failed to show, instead [its]
focus is on              the evidence actually introduced." Billey v. State, 895 S.W.2d
417, 419 (Tex.App.-Amarillo 1995).
The applicant would like to show the court as follows:
        A person           committs        the       offense of    aggravated robbery, if he commits
the offense of                 robbery    as        hereinafter defined, and he uses or exhibits a
deadly weapon. A person ciommits the offense of robbery if in the course
of committing theft as hereinafter defined and with the intent to obtain
or maintain the control of property, he intentionally or knowingly threatens
or places another in fear of imminent bodily injury or death. T.P.C. §29.03(a)
(1)(2)(3).
        Now bearing              in    mind      the foregoing instructions, if you        believe from
the    evidence beyond a reasonable doubt, that the defendant, Robert Lee Brown,
on or about               the    1st     day     of October, 1999, in the county of Travis and the
State     of      Texas, did           then     and there, while in the course of committing theft
of property,              intentionally,             or knowwingly threaten or place Pete Arevalo in
fear     of       imminent       bodily        injury or death, and Robert Lee Brown did then and
there     use      or exhibit            a deadly weapon, to-wit: a firearm, that in the manner
or     means      of      its use or intended use, was capable of causing death or serious
bodily injury, you will find the defendant guilty of the offense of aggravated
robbery and so say you by your verdict, but if you do not believe, or if you
have     a     reason to doubt thereof, you will acquit the defendant and say by your
verdict "Not Guilty".
       The quoted              paragraph        is    sufficient    to charge the offense and must be


                                                          19
proved. Wray v. State, 711 S.W.2d 631 (Tex.Crim.App.1936). In the instant case,
  the     State    relied    only on the victim and the accomplice witness to convict
him of        the charges     on the indictment. The indictemnt states that the Penal
Code     they   used was      29.03, 2(a) stating that the victim was 65 years of age
or older during the commission of the offense-
         Detective   Gay     testified     that     he   interviewed the victim several days
after     the   offense.     DurinG     this   conversation, the victim related how Sonya
Holder    and     three black males had come to his home and robbed him. (RR4: 131-
134)    The     victim brought        in pieces of a handgun 3 days after the occurrence
which    the robbers        allegedly     had used to beat him with and which had broken
during the assault. Gay testified that after that this weapon, State's exhibit
#22, was a deadly weapon. (RR4: 138-144).
        Sonya Holder (accomplice witness) testified that she went to               the home of
Pete Arevalo on the 29th of September. She also testified that the gun belonged
to Quincy and he had the gun going in to Arevalo's home and Sean had the gun
coming out of Arevalo's home. She testified that there was only one pistol.
She later testified that they took both guns, the .22 and the shotgun to some
other home and stashed them. (RR4: 45-90).
        Pete Arevalo stated in his testimony that he found the gun and brought to
Detective Gay 3 days after the incident and that it was in pieces and he could
only describe the pearl handle. He also testified that the shotgun misfired on
him twice and it misfired on the Applicant once                 and also that the .22 misfired
and jammed.(RR4: 193-208). the applicant avers that a pistol of the revolver
type does not jam, it only misfires when it has dead ammunition in it's chamber.
        Applicant contends that the manufactured evidence that Pete Arevalo did
present to the Detective was legally insufficient to support the conviction and
this court is required to hold and.evidentiary hearing and investigate the gun
evidence and compare it with the testimony given above and reverse this illegal
conviction and vacate the sentece-


                                  GROUND FOR REVIEW NO. 4

 THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO OBTAIN A CONVICTION
BASED ON PERJURED AND FALSE TESTIMONY AND A FAILURE TO CORRECT THE PERJURED
AND FALSE TESTIMONY AFTER IT WAS GIVEN VIOLATED THE APPLICANT" S FIFTH AND
FOURTEENTH AMENDMENT RIGHTS TO CONSTITUTIONAL DUUE PROCESS OF LAW.

AUTHORTIES AND ARGUMENT;


        The United     States    Supreme       Court     has   expressly recognized that when


                                               20
    confronted        with    perjurious and              false     testimony       the prosecutor has duty
to correct it. Giqlio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed-2d
104 (1972);           U.S. v. Aqurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

         Further,        if     the       prosecutor had actual knowledge of the falsity of the
testimony is then irrelevant, if the prosecutor should have known is sufficient
enough. Giglio, supra at 152. Thus, tne Supreme Court has endorsed the imputation
of     knowledge        at    least        from one prosecutor to another, however, the extent
of     this     imputation       of        knowledge      has been expanded. In Adams v. State, 768
S.W.2d        281,     291    (Tex.Crim.App.1989),                the    Court noted that for purposes of
imputing        knowledge        to       the   prosecution,            court's   have "declined to draw a
distinction           between    different           agencies      under the same government, focusing
instead        upon     the     'prosecution          team'   which includes both investigative and
prosecutorial personnel. See Duggan v. State, 778 S.W.2d 465, 568 (Tex.Crim.App.
1989)("it does not matter whether                      the prosecutor             actually   knows   that   the
evidence is            false;        it    is   enough that he or she should have recognized the
misleading nature of the evidence").
        To      summarize,           the   State     violates       a applicants rights to due process
when     it     actively        or    passively        uses perjured and flase testimony to obtain
a    conviction.         Mooney v. Hoiohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed.2d
791 (1935); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957).
        Such         violation       occurs        whenever   the        prosecutor    has actual knowledge
or     imputed        knowledge of the perjury. In the instant cae, the applicant urges
that     this        reviewing court adopt the findings after review of the record that
he be granted relief based upon this                          claim        that    the State used perjured
testimony.
        The      Court       will find that the State's witnesses used perjured and false
testimony        which       violates        his    due     process        rights and the applicant would
like to show the Court that the deception is apparent and                               would   like to show
the court through the following exerpts from the record.
Sonya Holder:
        Q:     Now I want to direct your attention back to September 29th, 1999.
               Did you go to Mr. Arevalo's house that day?
        A: Yes,       sir.

        Q: And why did you go over there?
        A: So we could rob him.



                                                       21
      Q: Did you go over there that day to rob him?
      A: Yes, sir.

      Q: Was he there?

      A: No,      sir.

      Q: Did you go back to his house that day?
      A: Yes, sir.

      Q: Did you take anything from the apartment?

      A: Yes,      sir,    I did.

     Q: And what did you take?
      A: Drugs.

     Q: And then on the next day, on September 30th, were you with Robert?
      A: Yes, sir.

     Q:     Before        the   robbery,   during   the   day, on September 30th, who were
           you all with...
      A: Robert Sean and Quincy.
      Q: Were      you all talking about doing something?
      A: Yes, they were talking about robbing him...
      A: Yes, they would ask me did I know where he kept his money and drugs.
(RR4: 45-48).
     Q: And when you walked out of the bathroom, what did you see?
      A: I saw Robert have Mr. Arevalo by his neck against the well and Quincy
           had the gun in his head.

      Q: Did anyone have a pistol?
      A:   Yes.

     Q: Who had the pistol?
      A: I believe Sean had it.

     Q: Did Robert tell you            that he tried to kill him?
     A: Yes, sir.

     Q: And what did he say about that?
     A: He said he tried to shoot the .22 (revolver) but it jammed, and that
        he tried to shoot the shotgun but it got jammed. We went to somebody's
        house and wiped blood and they were putting away the guns. He wiped blood
        from his shoes and he—they were trying to figure out what to do with
           the .22 and the shotgun.
     Q: Was there more than one pistol?
     A: No, sir.

     Q: Okay. So you didn't see it after the robbery?



                                              22
      A: No, sir, I didn't know what kind of condition (the pistol) was in.
      Q; Describe the pistol for the jury please.
      A:   It was silver. That's all I know.

      Q: Silver handle, silver—
      A: It was a black handle with silver.

      Q: Black over silver?
      A: Uh-huh.

(RR4: 60-63, 77-78).
Detective Roy Gay:
      A; October 4, 1999, he brought in fragments of the handgun, it was left
         behind at the scene. He said that it was the handgun they tried to sell
           him.

      A: I believe he said he found it in his bed or in the covers of his bed.

      A: Well, it had blood on it, you know, presumably from Mr. Arevalo. It was
           broken in several pieces where the handle of the gun broke off.
      A: Sort of a Western Style Revolver, pretty cheap.
(RR4: 138-143).
Pete Arevalo:

      Q: How hard was he hitting you with the pistol?
      A: Well, at that time they were just hitting me. They really hit me when
           I was in bed, when I ran into the bedroom and get my shotgun.
      A: It surprised them that I had a shotgun right next to the lamp. I had
         it covered with a towel. At that time Sonya walked passed the doorway
         and I asked Sonya to help me.
      A: It means it misfired, because the shotgun misfired on me—misfired on
           me twice while I was held down.

      Q: And then each time after you fired it while they were stuggling—while
         you were struggling with them, did you do anything to try to clear the
           jam?
      A: I reloaded—I cocked it again and reloaded it you know, twice, still
           wondering why it misfired.
(RR4: 199, 201, 206-207).
      Q: Did you pay her in cash or did you pay her in crack cocaine?
      A: No, I would always pay her in cash or take her to buy some.
     Q: You would take her someplace to buy some crack cocaine?
      A:   Yes.

     Q: You never gave her directly yourself crack cocaine?
     A: Na_
(RR4: 227).


                                        23
       Q: And then you found pieces of the pistol that was used to beat you ove
            the head?

       A:   Yes.

       Q: And where did you find that sir?
       A: In my bedroom.
       Q: And could you describe what pieces you found?
       A: A bunch of broken pieces is all I can say.
       Q: Part of the handle?
       A:   Yes.

       Q: Do you recall what it looked like, the handle?
       A: It was a pearl-pearl handle.
       Q: And it was one of those cheap Saturday Night Special pistols, you think,
          that was used to beat you over the head?
       A:   It had to be.

       Q: I want to show what has been marked as State's Exhibit #22, can you
          look in that bag and tell me what's in the bag?
       A: This is the part that I found in my bedroom.
       Q: And where in the bedroom did you find those?
       A:.1 found some on the bed, some on the floor, and under the bed.

(RR4: 229-231).
Officer Surei Zamont-Knightner:
       A: From there we requested a Crime Scene Unit to come out, and we allowed
          very few individuals to enter into the building. We started a Crime
            Scene Log.
       A: ...It definitely looked like there had been some sort of struggle or
          a fight. Things were very disarrayed. Things were all over the place,
            and there was blood—there was blood on the floor, blood on the bed
            and the pillows.
(RR4: 99-100).
      The applicant         contends that the testimony listed above shows the State
blatantly used perjured testimony and false evidence during the trial process.
It was evident     that     the prosecutor v/anted a conviction of the applicant when
he   went   clearly outside       of jurisprudence to secure this conviction that he
himself brought out in testimony.
      Fittingly,     the prosecutor      had Sonya   Holder   testify that she helped
rob the victim on the 29th and the 30th of September. She testified that one
pistol went in the home and one pistol came out of the home. She testified that
she recieved drugs and money from the victim.


                                          24
        Detective Gay         said        that     the        victim     brought    him pieces of a handgun
three      days       after    the       incident        in    which the Crime Scene Investigator just
walked over when they processed the crime scene.
        Pete      Arevalo     testified           that        he did not give       her drugs and he did not
keep them in his apartment. He also                            testified     that     the gun pieces he found
were       on    the bed, on the floor and under the bed. Sonya Holder testified that
the gun had a black handle, when Arevalo testified that it was a pearl handle.
        In Texas, a person who swears falsely to facts in a affidavit or recording
or    an    affiramtion           on     belief can be indicted for perjury. Griffin v. State,
128 S.W.2d 1197 (1939). The victim and the accomplice is analogous to facts in
which were stated in their statements nade on a affiramtion on belief. A person
who willingly           swears         falsely     to     a belief in existence of a fact which she
knows      does       not exist          is guilty of perjury as if she had sworn directly to
the     existence        of   a        fact     which she knows did not exist.                 Brasher v. State,

715 S.W.2d 827, 831 (Tex.App.-Houston[14th Dist.] 1986).
       The       applicant had three witnesses who testified to his alibi and further
shown      the court of the perjury that was invloved in prosecuting the applicant
and the trial court never considered the following testimony along with the
jury.
Margaret Walker, the               applicant's girlfriend                  at the time testified on direct
examination           that    on       September       30,        1999, applicant worked all night on her
car installing a new engine. The                       new      engine     was     delivered     at   around 9:00
p.m. on September             30th        and     applicant was still working on it when she went
to work the next morning at 4:00 a.m. (RR5: 6-19). On redirect examination, she
amended         her     testimony        and     said that the engine had actually been delivered
on the          evening of September 29th and applicant had worked on it on the 29th,
30th and on October the 1st. (RR5: 25-28).
Steve Michaelenko, applicant's neighbor, qalso testified that around September
29th or September 30th, 1999, applicant                            was    installing     a new engine in his
girlfriends car. He related that the engine was delivered at around 9:00
p.m. on the 29th or 30th and applicant worked on the car all night long.
(RR5: 28-34), Michaelenko testified on redirect examination that applicant did
work on the car for four or five nights in a row. (RR5: 37-38).
Stefan      Michaelenko,           Steve's son, also testified that he remembered applicant
working         onnis    girlfriend's            car    all night long one night towards the end of
September 1999. (RR5: 43-49).


                                                             25
     The State's    knowing     use    of   perjured   testimony and false manufactured
evidence in    a    criminal     prosecution     violates due process when the perjury
could    decieve   the   jury   unjustly    convicting    the applicant. The State also
has a duty to inform the Court of it's knowledge of false evidenceand perjured
testimony at trial. Failure       of    prosecutor     to correct the perjured testimony
and false manufactured evidence of witnesses is ground for reversal. Napue v.
Illinois, 360 U.S. 264, 79 S.Ct. 1173 (1959); U.S. v. Thomas, 987 F.2d 1293
(7th Cir. 1993); Demarco v. U.S., 928 F.2d 1074 (11th Cir. 1991).
     In the federal system, a constitutional error is harmful on collateral
review only if it had a "substantial and injurious effect or influence in
the determination of the jury's verdict- Brecht v. Abrahamson, 507 U.S. 619,
113 S.Ct. 1710, 123 L.Ed-2d 353 (1993), the State bears the burden of proving
this error to be harmless. O'Neal v. McAnnich, 513 U.S. 437, 15 S.Ct. 992,
130 L.Ed.2d 947 (1995).
    The applicant asserts that from the totality of the record that the
perjured testimony and manufactured false evidence harmed him and that the
minds of the jury were persuaded by this evidence that the applicant was
guilty. This reviewing court should determine, as a matter of law, whether
the false statements and evidence can have a affect on the course of the
proceedings. Materiality is distinguished from other elements of the crime
the State typically must prove in a criminal trial. The question of the
materiality of the evidence does not depend on the probative value of the
evidence but it's prejudicial effect and impact. It has also been held that
a factual evidentiary showing establishes the basis for the materiality of
a statement, but the 'ultimate finding of materiality on any interpretation
of substantive law-'
     •[Materiality1 refers to 'misstatements having some substantial potential
for obstructing justice.' This includes 'ulter trivial fabrications.* State v.
Rosenbaum, 910 S.W.2d 934, 937 (Tex.Crim.App.1994); Mitchell v. State, 608 S.W.
2d 226, 228 (Tex.Crim.App.1980).
        The deliberate presentation of false evidence violates a applicants
right to due process. The failure to correct false evidence also encompasses
the same concerns- To obtain relief, the applicant has established that the
evidence was material and there is a reasonable likelihood that the false
evidence and perjured testimony did have an affect on the jury's verdict-
Generally, that the showing is made by establishing a reasonable likelihood the


                                            26
false evidence        was   considered.        As    such, proof of the claim has encompassed
the    Brecht standard         of    harm,    and no such proof of prejudice is necessary.
Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995).
       This   reviewing        Court    apparently       can    make   an exception in the use of
"knowingly      and    intentionally         use    of perjured testimony and false evidence"
without holding that "when such is shown the Rule 44.2(a) harmless error
standard applies. See Tex.R.Evid. Rule 44.2(a).
        The    applicant       contends      that    a evidentiary hearing on the evidence of
the     allegation     on   this       claim of perjured testimony and false manufactured
evidence      shows     that    he     is   entitled to a new trial. "[A] new trial should
be granted when:
        (1)   the court is reasonably well                     satisfied that the testimony given
              by a material witness is false;
        (2)   that without it the jury might have reached a different conclusion;
              and,

        (3)   that the party seeking the new trial was taken by surprise whether
              false testimony was given and was unable to meet, or know of its
              falsity, until after trial.
Larrison v. U.S., 24 F.2d 82 (7th Cir, 1928); U.S. v. Nixon, 881 F.2d 1035 (5th
Cir. 1989).
     Before the applicant is entitled to a new trial under the Larrison
standard there is also the 'plain error standard' which asserts that the
applicant must further establish that he 'probably would have been acquitted'
but for trial   error, and hopefully with the testimony noted above and the
totality of          the trial record the applcaint can recieve a reversal and remand
for a new trial and ask for the perjured testimony to be corrected.


                                       GROUND FOR REVIEW NO. 5

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO USE LEADING QUESTIONS
DURING THE COMPLETE TRIAL PROCESS IN WHICH HELPED TO OBTAIN THE CONVICTION.


ARGUMENT      AND AUTHORITIES:



A.    FACTS

        The   State used leading questions in a especially egregrious manner                 that
was     permitted      throughout       the direct examinations of their witnesses until
the defense counsel was then forced to object.


                                                    27
     Q: And then on the next day. on September 30th, were you with Robert?
(RR4: 41).
     Q: Before the robbery, during the day, on Spetember 30th, who all were you
          with?

(RR4: 47).
    Q: And what was your intention—
     A: Mine?

     Q; at Mr. Arevalo's? As a group, what was you all's intention?
     A: To rob him.

(RR4: 52).
     Q: So he was hitting you pretty hard out there?
     A: Oh, yes.
    Q: Could you hear anything when you were hit?
    A: 0, yes. I could hear the solid hit.
(RR4: 199).
    Q: Do you recall how many rounds you had in the shotgun?
     A: I had four rounds—four rounds in the shotgun.
    Q: Was there one in the chamber?
     A:   Yes.

    Q: Okay. Now, when you grabbed the shotgun, what happened?
     A: They knocked me on the bed, both of them did-
(RR4: 202).
    Q: Okay. So at that point you were laying across—when they grabbed you,
          they knocked you down across the bed?
     A:   Yes.

     Do you recall—how were you holding the shotgun?
     A: Laying on the side.
    Q: So you had the —barrel was in your left hand?
    A: Yes, was in left hand, and I was trying to point towards the fellow in
          doorway, in other words, in front of me.
    Q: And the fellow who was in front of you was the fellow with the pistol?
    A:    Yes.

    Q: Which hand was the individual that was holding the shotgun—which hand
          was he using to hold the shotgun?
    A: Do what/ now—

    Q: Do you recall—the individual—the man with the pistol that was also
          holding the shotgun—

                                      28 .
       Q: —which hand was he holding the shotgun with?
       A: I guess I don't remember...
       Q: But he had it by the barrel?
       A:    Yes.

       Q: So how many times did he hit you                   on the head?
       A: About four times, maybe five time.
       Q: So he hit you several times on the bed?
       A: Oh, yes, while I was down on the bed..
(RR4: 203-204).
       The     applicant    avers that         at     this    juncture   the defense attorney was
forced to object to the massive amount of leading questions by the prosecutor.
The    prosecution        went    as far as pointing out who the applicant was with the
victim:

       Q: When you were struggling with the guys in your house, you said that you
             saw the person that had the pistol?
       A: Yes.

       Q: Do you see that person in the courtroom today?
       A:    Yes.

       Q: Can you point him out?
       A: (indicating).
       Q: Can you tell me something's he is wearing?
       A: Can I tell you what?
       Q: Can you tell me something that he's wearing?
       A: At that time he didn't have—what do you mean?
       Q: Can you tell me something he's wearing today, just so we can put it on
          the record that you've identified that person?
       A: No, I couldn't tell you what he's wearing.
       Q: Describe an article of clothing.                What color is his shirt today?
       A: What color is what?

       Q: What color is his shirt today?
       A: It's white, you know.
Texas Rules of Evidence Rule 611(c) states: "That leading questions should not
be    used     on   the   direct     examination of a witness except as may be necessary
to develop          the testimony         of the witness. The trial court has discretion in
deciding       whether    to     permit     leading      questions. The trial court finally had
to admonish the State in the use of leading questions. See Hernandez v. State,

                                                    29
643 S.W.2d 397, 400 (Tex.Crim.App.1982)(en banc).
           Although      it       is    recognized that in cases dealing with children the rule
against           leading        questions         is somewhat           relaxed,     it should not be entirely
disregarded,            as       was    with       the case at bar. Clark v. State, 952 S.W.2d 882,
886        (Tex.App.-Beaumont               1997).       It    cannot be disputed that the entire direct
examination           of       the     State's       witnesses          demonstrated     impermissiable leading
questions          in    almost every detail of the robbery allegations. Not one- answer
was witnesses            or       from their            own recollection and memory without the prompt
from the prosecutor.
           The examples           are numerous           as        listed above, as the entire testimony is
riddled        with      impermissible             leading         questions.       Although     the courts may be
relaxed        in     this       area with           a child witness, we are talking about a 21 year
old and a 60 year old. Such slackness                                  in the   rules    of evidence should not
rise        to such        a     egregrious          level         that it challenges the very basis of the
applicant's           due      process right and questions whether he recieved a fair trial
given such blatant violation of the rules-
           Applicant's         ultimate        right          to   a    fair trial and the due process right
given        to    him     by     the       U.S.     Constitution and by the Texas Rules of Evidence
were        violated       by     allowing         such       a blatant violation of Rule 611(c) and the
trial        court      erred        in allowing          almost the entire direct-examination of the
State's       witnesses           to be proceeded by the prosectuions leading questions and
applicant request that his case be remanded for a new                                   trial.


                                               GROUND FOR REVIEW NO.            6

THE TRIAL          COURT       ABUSED        ITS     DISCRETION WHEN IT ALLOWED THE STATE TO PRESENT
EXTRANEOUS          OFFENSE          TESTIMONY       AND FAILED TO PRESENT SUFFICIENT EVIDENCE THAT
THE JURY COULD FIND BEYOND A REASONABLE DOUBT. THAT THE APPLICANT COMMITTED
THE SAID OFFENSE OF AN EXTRANEOUS BAD ACT.

ARGUMENT AND AUTHORITES:

            Extraneous         acts are qenerally inadmissible at the quilt/innocence staqe
of     a     trial.      See      Tex.R.Evid. 404(b)("statinq that evidence of other crimes,
wronqs,        acts,        is    not admissible to prove the character of a person in order
to    show action in conformity therewith"). A applicant is entitled to be tried
on     the     accusation            made     in     the State's pleadinq and he should not be tried
for     some       collateral          crime       or     for       beinq a criminal in qeneral-" Wilkerson
v.    State, 736 S.W.2d 656, 659 (Tex.Crim.App.1987); Ex Parte Varies, 45 S.W.3d
627, 630-31 (Tex.Crim.App.2001).


                                                                   30
        The applicant           contends   that   the   followinq testimony were extraneous
acts     that    were       admitted   in testimony with the failure of objections by his
counsel.        There       was no rulinq or in-camera hearinq to determine the validity
of the bad acts that            were testified to by the accomplice-witness- The charqe
aqainst       the     applicant was Aqqravated Robberv and the extraneous offense that
was unadiudicated were admitted and should be viewed under an abuse of iudqes
discretion to have them testified before the iury panel.
SONYA LEE HOLDER:

         Q: Have you ever seen Robert deal druqs?
         A: Not see him, but I know of him doinq it?
(RR4: 43)
        Q: Did you all do anythinq prior to qoinq to Mr Arevalo's?
         A: Yes, sir. When Mr. Arevalo was not at home, thev went ridinq around
              lookinq for other victims.
(RR4: 48).
         A: Yes, sir. Thev had~thev had stopped—I don't know what street and
            where at but they stopped somewhere and Sean, robert, and Quincv qot
            out and went to somebody's house, but nothinq happened.
                    A: They were qoinq to rob somebody.
(RR4: 50-51).
        0: Did Robert do anvthinq else that night?
         A: Yes,      he did.

        Q: What did he do?
         A:   He threatened me.

        0: How did he threaten you?
         A: He said if I say anythinq, he was qoinq to kill me.
        Q: Did he do anythinq physically to you?
         A: Yes, he did.

        Q: What did he do?
        A: He qrabbed me by the neck.

(RR4: 65-66).
        The Tex.Code.Crim.Proc.A.. Art. 37.07 §3(a), provides that the extraneous
offense       mav     not    be considered in assessinq punishment until the fact-finder
is     satisfied beyond a reasonable doubt that these prior acts are attributable
to the applicant.

        Art- 37.07 §3(a) does provide that: "reqardless of the plea and whether the



                                                  31
punishment      be     assessed       by     the     iudqe    or the iurv, evidence mav be offered
by the State and the Defense as to anv                       matter     the   Court     deems     relevant to
sentencing,      including         but      not    limited      to the prior criminal record of the
defendant,      his general           reputation       or     his character, an opinion regarding
his character,         the    circumstances          of the offense for which he is beinq tried

and    notwithstandinq         Rules        404    and 405, Tex.R.Evid-, and anv other evidence
of    an   extraneous        crime     or    bad act that is shown beyond a reasonable doubt
by    the evidence to have been committed bv the defendant or for which he could
be    held    criminally responsible and reqardless whether he has previously been

charged with or finally convicted of the crime or bad act").
       This     rule     posed       several       problems      for     the Courts until the Court of

Criminal      Appeals    decided           that when the State attempts to introduce evidence

of    extraneous     offenses,         the        trial court must make an initial determination

that a jury could reasonably rind beyond a reasonable doubt that the applicant
committed      the   extraneous offense before admitting such evidence. See Mitchell
v. State, 931 S.W.2d 950 (Tex.Crim.App. 1996). In Mitchell, the Texarkana Court
of Appeals, held that interpreting Art. 37.07 §3(a),                            that      a     preliminary
requirement that the State must prove beyond a reasonable doubt that applicant
is criminally responsible for the unadjudicated extraneous offense to be                                 then
admitted. Mitchell, supra at 215. However, the Texas Court of Criminal Appeals
reversed and remanded Mitchell, stating that the Court of Appeals interpretation
of Art. 37.07 §3(a) was incorrect.
       The Court of Criminal Appeals explained                         that   the     trial   court    is the
exclusive judqe on matters of law and decides the "threshold of admissibility"
on the admitted        unadjudicated          offenses.        Mitchell,      supra at 954. Thus, when
the State attempts            to   introduce         evidence of extraneous offenses, the trial
court must      make     an    initial determination that a jury could reasonably find
beyond a reasonable doubt that the applicant committed the extraneous offenses.
Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App.1994). It is only after the
trial judge resolves the "threshold admissibility" of the extraneous offense,
the   jury,    as    "the exclusive judge of the facts" rather than the trial court
determines     whether       or not the State has proved the extraneous offense beyond
a reasonable doubt. See Mitchell, supra at 954.
       This ruling makes the trial judge therefore, exclusively responsible for
determinging the "threshold admissibility" of any extraneous offense.


                                                      32
        The trial court             must     first        determine        that    the   evidence is relevant
and that         the jury could reasonably find beyond a reasonable doubt that the
applicant        committed          the     extraneous offense.             Harrell,     supra at 953. If the
State fails to adduce the sufficient evidenc, the trial court should not                                 then

admit the evidence. Stewart v. State, 927 S.W.2d 205, 208 (Tex.App.-Fort Worth
1996); U.S.C.A. VI and XIV.
         It     the       trial     court     errs in making its preliminary determination that
the extraneous offense was admissible, then a harm analysis must be conducted.
The     Reasonable          Doubt     Standard           for       consideration of extraneous offenses in

the     guilt/innocence             phase     or in the              assessment of punishment is neither
constitutionally                required nor         based on a constitutional mandate. See Fields
v.     State,        1    S.W.3d     687,     688 (Tex.Crim.App.1999). The court must disregard
any error not of constitutional magnitude unless it has affected the substantial
rights of the applicant. See Tex.R.App.Proc. Rule 44.2(a); Johnson v. State,
967 S.W.2d 410, 417 (Tex.Crim.App.1998); Couchman v. State, 3 S.W.Sd 155, 160
(Tex.App.-El Paso 1999).
        A substantial             right     is affected             when   the error had a substantial and
injurious        effect         or influence             in    determining        the jury's verdict. King v.
State, 953 S.W.2d 558, 561 (Tex.App.-San Antonio 1998). The                                   Supreme   Court
has construed              the     nearly identical federal harmless error rule as follows:
"If,     when    all        is     said     and done, the [court's] conviction is sure that the
error did not              influence the jury, or had but very slight effect, the verdict
and     the     judgment          should     stand...but if one cannot say, with fair assurance,
after pondering             all     that     happened without              stripping     the erroneous action
from     the    whole, that the judgment was not substantially swayed by the error,
it is impossible to conclude that the substantial rights were not affected.
        The inquiry             cannot      be merely              whether there was enough to support the
result,       apart        from     the     phase affected by the error. It is rather, even so,
whether        the       error itself had substantial influence. If so, or if one is left
in grave doubt,                 the conviction cannot stand. O'Neal v. McAnnich, 513 U.S.
432,    437-38           (1995);     Vega     v.    State, 32 S.W.3d 897, 905-06 (Tex.App.-Corpus
Christi        2000); Kotteakos v. U.S., 328 U.S. 759, 776 (1946).
         "Grave doubt", means "in the judges mind the matter is so evenly balanced
that he feels himself in virtual equipose as to the harmlessness of the error.
O'Neal, supra at 435. The trial                     court          erred   in     admittinq   testimony of the
extraneous       offenses          against         the        applicant    when absolutely no evidence was
presented       by        the     State     that the applicant committed such acts. No rational

                                                              33
 trier of fact             could       have          found    the     applicant had committed the extraneous
offenses as testified to by the accomplice witness beyond and reasonable doubt
as required under Art. 37.07 §3(a). Under the "threshold admissibility" and its
requirement              the trial court should not have admitted the extraneous offenses.
In     a     similar       case        in        Stewart, the State offered evidence of an extraneous
offense           with     three       witnesses,            includinq        the   victim, who all testified to
extraneous offenses in the punishment phase, but did not qive adeauately                                            then
identify the defendant durinq the voir dire examination. Stewart, supra at 208.
            Although this was considerably more evidence offered than in the instant
case, the court                held        that       based on the record of the voir dire examination,
no     rational trier-of-fact could have found the elements of the offense bevond
a     reasonable          doubt,           and       had    held that the trial court erred in makinq its
preliminary          determination                   that    the     extraneous        offense was admissible. Id-
at 208. However, in Stewart, the                             court     held     that     the   error     harmless when
the subsequent testimony of the victim and the witness before the jury did then
establish that the offense could have be found by a rational trier-of-fact
beyond        a    reasonable              doubt.          The victim's testimony before               trial court was
considerably             stronger than the evidence provided in the voir dire examination
Stewart, supra at 208.
           Although, in the instant case,                          Sonya     Holder's      testimony cannot amount
to     an     overwhleming             amount         of     substantial       evidence for the trial court to
have made a determination that the iurv                                could    have     found   the     elements    of

the     extraneous             offense          beyond       a reasonable doubt.          There was absolutely no
evidence          proving        that          the applicant           committed the extraneous offenses and
it's       admission           was     undeniably            harmful       to the applicant qiven the sentence
imposed bv the trial court. At the very least, it should leave this court with
"grave doubt" as to whether one can say with fair assurance that it did not have
some impact on the jury's decision on the finding of guilt of the applicant.
           Given     the egregrious                   error     of     admittinq       the extraneous offenses bv
the     trial       court,           and       the    obvious       harm to the applicant in sentencinq. it
is     then       anticipated that the respondent will                          try to disquise         the admission
of the evidence as                    impeachment            evidence of the applicant's character under
rules 404 and 405 of the Tex.R.Evid.,                              thus, this issue must be addressed.

           Applicant asserts that the trial court erred in admitting the extraneous
offenses          testified          to     at       trial in violation of Rules 404(b) and 403 of the
Tex.R.Evid.,             and    it        is     a qeneral rule that an accused may not be tried for

                                                                34
some collateral              crime    or    beinq     a    criminal in qeneral. Williams v. State,
662 S.W.2d 344, 346 (Tex.Crim.App.1983). Evidence                            of    extraneous offense was
improperly admitted, and reversal is required, where                               the   probative   value
of    the evidence was minimal and the preiudicial impact was hiqh, the reauired
intent        for     the     offense      could be infered from the content, so the State did
not    need         the     testimonial       evidence      to    show intent. Castillo v. State. 910
S.W.2d        124 (Tex.App.-El Paso 1995). The rule excludinq evidence of extraneous
offenses is based on the belief that althouqh such evidence shows the applicant's
propensity to criminal conduct, and qenerally its preiudicial effect overwhelms
its probative value in determininq whether the accused committed the crime for
which he is on trial.

         In the face of a proper objection, evidence of other wronqs and acts are
not admissible to prove character of the person to establish that he acted                              in
accordance with the regards of the alleged offense, even though there was no
objection made durinq trial. Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.
App.1991); Lazcano v. State, 836 S.W.2d 654, 657 (Tex.App.-El Paso 1992).
         An    extraneous          offense may        be     admissible,      however, it has relevance
apart from its tendency to prove confomitv therewith. Evidence which loqicallv
serves     apart          such   purposes      as     "proof of motive", "opportunity," "intent."
"knowledge," "preperation," "plan," "Plan," "identity," or "absence of mistake"
or "accident," is relevant far beyond itstendency to prove conforming character.
Montgomery, supra at 387; Lazcano, supra at 657; Hill v. State, 852 S.W.2d 769,
770 (Tex.App.-Fort Worth 1993); Kelly v. State, 828 S.W.2d 162 (Tex.App.-Waco
1992).
         The    law         imposes    upon    the    trial       court the ultimate task of deciding
the    "threshold           admissibility"       of       admittinq evidence of extraneous offenses
before a jury durinq the trial process                       to    prevent    an    abuse by the State of
casting before the jury every incident or extraneous offenses that may then be
concievably used against the applicant                           in effort    to thwart      the iurv into
believing the applicant may have done crimes for which they mav have no evidence
to prove to this court, in attempting to place a safeqaurd on such abuse, placed
a burden       of     this       "threshold     admissiblity"         standard      on the trial court to
determine       if sufficient evidence exists before such extraneous offenses could

be    used against            the     applicant. This case is classic example of such abuse,
where the trial court was inept in thier duty by allowinq a potentially harmful


                                                      35
detrimental extraneous        offense    to    be     submitted to the iury in its verdict,

when there was no evidence presented that proved that the applicant had                  then
committed the crimes at all. The harm was detrimental to the applicant and he
request that the court sustain this error after this court holds an evidentiary
hearinq to determine the facts on the merit and reverse and remand for a new
trial.



                                    GROUND FOR REVIEW NO.       7

THE APPLICANT CONTENDS THAT HIS CONVICTION IS VOID WHEN THE PROSECUTION PROMISED
THE    ACCOMPLICE      WITNESS/CO-DEFENDANT         SOMETHING   OF VALUE FOR HER INCULPATORY
TESTIMONY AGAINST APPLICANT IN VIOLATION OF 18 U.S.C. §201(C)(2).

ARGUMENT AND AUTHORITES:


         The applicant contends that Title 18 U.S.C. §201(c){2), prohibits giving,
offering,     or promising         anything    of value to a witness 'for or because of
her    testimony.      Applicant     argues    that    the   State violated this one statute
by promising the State's witness and the applicant's co-defendant Sonya Holder,
probation,       who   had   conspired    with the complainant in this robbery case, in
return for her testimony against the applicant. Applicant was convicted for the
aggravated robbery in cause no. 002368 in the 167th District Court of Travis
County. The co-defendant and the victim had an unusual and questionable                  affair
and relationship. In trial testimony and in accordance with the county jail
records the victim visited and left money to the accomplice who was responsible
for the robbery against the victim. This evidence                   is supported   by the trial
record that the State's witness Sonya Holder was recieving testimonial immunity
in exchange for her testimony against the applicant, by recieving probation for
tne response to the State and the defense. (RR4: 39-40, 72, 88).
       Title 18 U.S.C. §201(c)(2) could not be more clear when it provides that:
            "Whoever, directly or indirectly, gives, offers, or promises anything
      of value to any person for or because of their testimony under oath,
      or affirmation, given or to be given by such a person as a witness upon
      a trial hearing or other proceedings before the court, authorized by
      the laws      of the United States to hear evidence or take testimony, shall
      be fined       under this title or imprisoned for not more than two years
      or both.

This title        is broadly       construed    to further it legislative purpose in the
detering of corruption. The prosecutor made Sonya Holder a promise of probation
for her testimony against the applicant and therby violated §201(c)(2). See


                                              36
State v. Hernandez, 731 F.2d 1147, 1149 )5th Cir. 1984). The class of people
who can violate 18 U.S.C. §201(c)(2) is not limited when it avers "whoever,"
within the elements of the statute. First, the            statute requires a gift, offer
or promise,          either direct or indirect, to a person. Second, the gift, offer,
or   promise    must      be of      'value'. Third, the gift, offer, or promise, must be
made 'for' or 'because of the person's sworn testiony at a trial, or other
proceedings before an authorized court.
      The State in the case in chief promised Sonya Holder that she would recievc-
probation in return fcr her testimony against the applicant in trial. The State
of mind required to violate that statute is knowledge that the thing of value
is given       for     or because of testimony. U.S. y. Campbell, 684 F.2d 141, 150
(D.C. Cir. 1982)
     The   prosecutor          in   the   instant cause was acting on behalf of the State
and is within the statutory languag of "whoever" by promising Sonya Holder
ten (10) years probation for her testimony. In the case at bar, the prosecutor
is the representor of the State of Texas which acted in violation of 18 U.S.C.
§201(c)(2), by the promise of leniency in return of her testimony against
the applicant, for without her perjured testimony the State could not have a
conviction obtained in the case at bar.

      In Hamilton         v.    General    Motors Corp., [citation omitted] the policy in
§201(c)(2), has long been expressed and enforced at common law when the court
held, "The judicial process is tainted and justice cheapened when factual
testimony is purchased, whether with leniency or money because prosecutors
bear a weighty responsibility to do justice and observe the law in the course
of a prosecution and it is particularly appropriate to apply the structures
of §201(c)(2) to their activities.            The Court also held:
      "The attorney is the representative of an ordinary party to a controversy,
      but of a svereignty where obligation to govern impartially is as compelling
      as its obligation to govern at all; and whose interest, therefore, in
      a criminal prosecution is not that it shall win a case, but that justice
      shall be done. As such, he is in a peculiar and  very   definite sense,
      the servant of the law, and the two fold aim of which is that the guilty
      shall not escape, nor the innocence suffer.
Hamilton v. G.M.C., supra.
      The State        made an offer to Sonya Holder due to position as an accomplice
by matter of law to the instant case. The statute's "for or because of" language
it does not require a Quid Pro Quo relation between the testimony and the


                                                37
promises,       though       Sonya     Holder    admitted       to being promised probation by the
State. (RR4: 39-40, 72, 88), but merely requires that the promises be motivated
by the testimony,             even     though    the    testimony might have been given without
promises. U.S. v. Johnson, 621 F.2d 1073, 1076 (10th Cir. 1980).
       In the applicant's case, however, the record indicates that the testimony
and    the     promises       are mutually        induced by one another, a relation stronger
than     the    "for       or because of" requirement by section §201(c)(2). U.S. v. Sun
Diamond Growers, 138 F.3d 961, 966 (D.C. Cir. 1998).
       In U.S.A. v. Sonya Evette Singleton, [citations omitted], the appellant
Singleton, filed a motion to suppress testimony allegedly obtained in violation
of 18 U.S.C. §201(c)(2). This reviewing Court is faced with a similar situatuion
where here at the case at bar, the applicant filed a motion to reveal agreements
with Sonya Lee Holder with the prosecution filed April 26, 2000. The Applicant
submits       that     the only appropriate remedy for this error is reversal of this
conviction and a new trial ordered, or in the alternative, allow the applicant
to bring this         second application           for       writ of habeas corpus and conduct and
evidentiary hearing to give the applicant an opportunity to prove by the
preponderance of the evidence that had it not been for the perjured testimony
of the State's witness Sonya Holder, and show that no jurist of reason could
find the applicant guilty beyond a reasoanble doubt.


                                         GROUND FOR REVIEW NO. 8
THE APPLICANT CONTENDS THAT DUE TO THE DEFICIENT PERFORMANCE OF TRIAL COUNSEL
HE WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE WHICH CAUSED
AN ACTUAL AND SUBSTANTIVE DISADVANTAGE TO THE APPLICANT IN RECIEVING A FAIR
TRIAL.


ARGUMENT AND AUTHORITIES:


A.    FACTS

         The    applicant        contends       that    he can show this reviewing court through
the     following          complaint     that   his     trial counsel was not reasonable and his
actions       were     no     the    function of sound trial strategy. Trial counsel in his
performance was deficient in that                  it    fell    below the prevailing norms of his
profession,          and     the deficiency        prejudiced      and   harmed the applicant, that
is,    but     for the deficiency there is a reasonable probability that the result
of     the    proceedings        would    have been different in which caused an actual and
substantive disadvantage for the applicant to recieve a fair trial.



                                                        38
         Trial counsel Hon. Charles Hineman                   failed    to   investigate     the   facts
of     the case and failed to formulate a comprehensive understanding of the facts
sufficient enough to present an adequate defense for his client-                           Trial counsel
failed     to investigate         the crime scene, he failed to have an expert witness
appointed, failed to preserve error in multiple instances, he failed to object
to extraneous offenses, he             failed      to    request       instructions   for the court's
charge. These are the errors that the applicant contends that will help the
court to determine reasonableness of the trial counsels representation.
         The performance         of    counsel      fell      below     the professional norms and a
reasonable       probability      exits     that      the     outcome may have been different had
he been aware of the facts of               the case.          Applicant's      main argument is that
on review, trial counsel's representation is highly                          deferential    and    it may
be presumed that counsel's actions were not within a wife range of professional
asssistance. Mallet v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001);                            Tonq    v.
State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000).
         When the record is silent on the motivation underlying counsel's tactical
decisions,       the     applicant usually cannot overcome the strong and overwhelming
presumption       that     counsel's      conduct       was     reasonable. Jackson v. State, 877
S.W.2d 768, 771 (Tex.Crim.App.1994); Tong, supra at 714.
         The   court      in   Strickland,       held       that trial counsel has a professional
duty     to present all testimony and any other evidence to support his client's
defense. Strickland v. Washington, 466 U.S. 668 (1984); U.S. Const. Amend. Six
and Fourteen; Art. I §10 Tex.Const.; Tex.Code.Crim.Proc.Ann. Art. 1.05. Attorney
for the defense has a responsibility                  to seek out and interview any witnesses
and     investigate any viable            deenses        available to his client, and a failure
to do so is ineffective assistance of counsel, if that defense is not advanced.
Ex Parte Ybarra, 629 S.W.2d 943, 946 (Tex.Crim.App.1982). Texas follows                               the
standard brought forth by the federal court in Supreme Court case, Strickland
v. Washington, supra, in           deciding whether the applicant did recieve effective
assistance of counsel. Williams v. State,                     726 S.W.2d 542, 548 (Tex.Crim.App.
1986).
B.    FAILURE TO CALL EXPERT WITNESS

         In the instant        case the victim brought fragments of a handgun in which
was    alleged     to be       the weapon the applicant used to beat him with. This took
place 3 days after the incident,' the detective Roy Gay did no tests on the gun


                                                 39
fragments.    There   was    no D.N.A. testing on the allegede blood and there was
no latent prints lifted to see if there could have been someone else who
committed the offense. The applicant contends that there was pieces from
several different weapons which brings into effect the discrepincies of the
evidence. The trial counsel could have had an expert to examine State's Exhibit
#22. This intum will help to determine if that weapon did infact break apart
during the assault of the victim in his home, especially when there is testimony
that show that the gun went in the house and came out of the house by the
assailants.
      In Powell v.          Alabama,   287 U.S.   45, 58, 53 S.Ct. 55, 60 L.Ed.2d 158
(1932), the Court held, "it is not enough to assume that the           counsel   thus
percipitated into the case though there was no defense, and exercised his
best judgment in the proceeding to trial without preporation. No one can say
what a prompt and thorough investigation which is ongoing might disclose
as to the facts."
      Applicants counsel should of investigated the crime scene of the offense
charged. Then also try to interview and investigate the State's witnesses,
also, he should of been aware of any surprises. The failure to investigate
will not be considered sound trial strategy because no strategy can begin
to be a formulation of strategy until counsel has investgated facts and the
witnesses. See Ex Parte Lilly, 656 S.W.2d at 493; Smith v. State, 894 S.W.2d
876, 880 (Tex.App.-Amarillo 1995), unless the applicant who is charged, has
a competent counsel able to invoke procedural and substantive safeguards
that distinguish our system of justice, a serious risk of injustice infects
the trial and when the State obtains a conviction through such a trial it is
the States action that unconstitutionally deprives the applicant of his liberty.
See Cuvler v. Sullivan, 466 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980);
U.S. Const. Amend. VI.
      The applicant's trial counsel's failure to prepare a defense and call
all witnesses be it character or expert of fact, prejudices the applicant
especially in light of the weakness of the State's case. Applicant is charged
with aggravated robbery with a deadly weapon and was denied effective assistance
of counsel and as a result of counsel failing to conduct and adequate and
thorough investigation and present a forensic expert to rebut testimony of
the victim and the Detective.




                                          40
         The United        States Supreme            Court    characterized        these failures as on
of the two "[more]" compelling                sets     of    errors      that    will support the Court
in concluding that the applicant's trial attorney had provided constitutionally
ineffective assistance.

         In the     instant       case,     the    only      witnesses     to the alleged evidence of
aggravated        robbery     if     the    victim and the accomplice-witnesses and there is
substantial circumstantive evidence that the applicant was involved with                            the
offense. When a case hinges all-but-entirely on whom to believe, an experts
interpretation of           relevant       physical       evidence    (or       lack of it) is the sort
of "neutrally disinterested" testimony that may help in tipping the scales and
sway the fact-finder.
        Because of the        importance          of physical evidence should be a focal point
of    defense     counsel's        pre-trial       investigation      and analysis of the matter,
such     pre-trial    investigation and              analysis will generally require some form
of consultation of an expert.
        It is difficult to imagine a aggravated robbery w a deadly weapon...where
the defense       would     not     be     aided by the assistance of an expert. In summary,
trial counsel's           failure     to consult an expert knowing there was no test done
to support the evidence and testimony that the applicant did infact hold the
weapon and beat the victim with it. Then by not conducting relevant research
and talking to the witnesses or even request underlying studies relied on by the
evidence given by the State, contributed to the trial counsel's ineffectivensess.
See Holmsback v. White, 133 F.3d 1382, 1387-89 (11th Cir. 1998); Knott v. Mabry,
67 F.2d 12-13 (8th Cir. 1982)(holding, "that counsel may be found ineffective
for failing to consult and expert where "there is substantial contradiction in
a given area of expertise," or technical subject matters...to conduct effective
cross-examination"). For this                error    this reviewing Court should be compelled
to     hold   a   evidentiary        hearing       and search the record and see that there is
evidence to sustain this complaint.
C.   FAILURE TO CALL EXCULPATORY WITNESSES

       The accomplice         witness       Sonya     Holder testified that she gave the names
of     the other     two    assailants         who    were allegedly with the applicant during
the robbery          to   the      Detective       Roy Gay, but there was no charges filed on
those two individuals and their names were in the file and if the trial counsel
did    infact     read or       go    through        the D.A's records he could of called those




                                                      41
other two co-defendants and used their testimony to exculpate the applicant.
(RR4: 69).
        Brown      is   entitled         to    reasonably effective assistance of counsel, thus
a right established            by the Sixth Amendment to the United States Constitution,
applied      to     the States           through      the Fourteenth Amendment, and recognized in
Art.     I   §10 of         the    Texas Constitution and Art. §1.05 of the Texas Code of
Criminal Procedure. State v. Thomas, 768 S.W.2d 335, 336-37 (Tex.App.-Houston
[14th Dist.] 1989); Ex Parte Duffy, 607 S.W.2d 507, 513 (Tex.Crim.App.1980).
~      Texas       follows the standard ennuciated in Strickland, in deciding whether
the applicant has recieved effective assistance of counsel. Wilkerson v. State,
726 S.W.2d 542, 548 (Tex.Crim.App.1986). Under that standard the applicant must
establish two things: (1) Counsel's performance                             was   deficient;   and, (2) the
deficient         performance          prejudiced         the applicant,          if either of the lements
is     not   established,          the     contention           fails.     Rico v. State, 707 S.W.2d 549,

556 (Tex.Crim.App.1983).
        An attorney has a professional duty to                          present   all   testimony and other
evidence       to    support       the    defense         of     his client. Ex Parte Ybarra, supra at
946.     A   criminal defense attorney has a responsibility to seek out and do                          an
interview         of potential witnesses and the failure to do do is to be considered
ineffective         where     the       result       is     that   any viable defense available to the
accused       is     not    advanced          and   the decision to call a witness is generally a
matter       of     trial    strategy,          but    the       failure to interview a witness will be
considered          ineffective         assistance         of    counsel     when    inaction precludes the
accused from advancing a viable defense.
        There       were    these       two    witnesses that could testify that the accomplice
witness lied to the court about the applicant's invlovement in the offense in
which he was charged, and that testimony at trial would of helped to arrive at
a different outcome.

        This reviewing Court will hold that                        if    trial counsel would have secured
the other two individuals he could have discredied the victim's and accomplice
witnesses testimony. He                 never       spoke      to them or tried to have them subpeonad
during       the    course        of    the trial and never sent anyone to talk to them. This
reviewing          court will then characterize that the failure to call any potential
witnesses as a failure to adequately prepare for trial, and not as a strategic
decision. Berry v. Morton, 100 F.3d 1089, 1100-01 (3rd Cir. 1996); and see also


                                                            42
Lewis v. Mazurkiewicz, 915 F.2d              106, 113 (3rd Cir. 1990).
D. FAILED TO OBJECT TO EXTRANEOUS OFFENSE TESTIMONY

     The applicant         contends         that    the    record is full of extraneous offense
testimony as announced in Ground For Review No. 6, in which there was never an
objection by the trial counsel and this action caused an actual and substantial
disadvantage of the applicant into recieving a fair trial.
     Extraneous        offenses       are    inherently      prejudicial and when counsel fails
to object       to numerous extraneous offense and prejudicial matters, counsel's
is   ineffective.       See     Williams      v.    State, 662 S.W.2d 344, 346 (Tex.Crim.App.
1983);   Cude     v.    State,     588      S.W.2d 895 (Tex.Crim.App.1979); Wenzy v. State,
855 S.W.2d 52, 58 (Tex.App.- Houston[14th Dist.] 1993). Generally drug evidencce
has no     relevance      in a non-drug prosecution. See Couret v. State, 792 S.W.2d
106, 108 (Tex.Crim.App.1990).
     Drug evidence and threats as testified to in the instant case was .. then
irrelevant. The first mention of drugs was by the accomplice witnesses testimony
during the      presentation of the State's case in chief. And that extraneous                an
prejudicial testimony was in direct violation of Tex.R.Evid., 404(b) and 403.
It is a general rule that an accused may not be tried for some collateral crime
of being a criminal in general. Tex.R.Evid., 404(b).
     Not     every     allegation       of inefective assistance of counsel, in this case
would justify a reversal. However/ then, the totality of the defense counsel's
representation         undermines the court's confidence in the conviction. The Court
of Criminal       Appeals       has    held that counsel is ineffective when he failed to
object     to   extraneous offense testimony.               In Montez v. State, 824 S.W.2d 308,
310 (Tex.App-San Antonio 1992) the Court held, that applicant did not recieve
a fair trial, and the totality of trial counsel's assistance undermined the
court's confidence in the outcome of the trial. Many of the factors exist in
the present case. Specifically, trial counsel must be aware of the impact of
the extraneous offenses and their admission should not be taken lightly. Even
under the strict standard in Strickland, the court has no choice but to find
defense counsel's ineffective assistance led to the introduction of damaging
extraneous evidence such that the court's confidence in the result of the trial
is undermined to the extent that the Court cannot state with reasonable
certainity      where     the    applicant         was    found   guilty of the crimes charged or
the extraneous bad-acts offered by the State.



                                                    43
        Evidence        of    extraneous        offense      was    improperly admitted, and reversal
is required, where             the       probative     value    of the evidence was minimal and the
prejudical           impact    high, the required intent for the offense could be infered

from     the     content, so the State did not need to show the intent and the trial
counsel        was    infact        ineffective       for not objecting to the testimony that was
given.       Castillo v. State, 910 S.W.2d 124 (Tex.App.-El Paso 1995).
        The rule       excluding evidence of extraneous offense is based on the belief
that although such evidence shows the applicant's propensity                            to    criminal
conduct,        and    generally its prejudicial effect overwhelms its probative value
in     determining          whether      the    accused      committed the crime for which he is on
trial. In        the       face of       a    proper objection, evidence of other wrongful acts
is not admissible to prove character of the person to establish that he acted
accordingly regarding the alleged offense, "but in the instant case there was
no objections vocalized." See Montgomery v. State, 810 S.W.2d 372, 386 (Tex.
Criro.App.1991); Lazcano v. State, 835 S.W.2d 654, 657 (Tex.App.-El Paso 1992,
pet. ref'd).
       The      applicant          asserts     that an       extraneous     offense may be admissible,
however,        if    it     has    relevance     apart       from its tendency to prove character
conformity        therewith.          Evidence    which       logically     serves apart such purposes
that     are    not        objected      to    the jury will paint a picture in their mind that
the applicant is common criminal with no future rehabilitation.
       The applicant's              attorney     at    trial       was   ineffective for not objecting
to     the     improper       use of extraneous evidence where the applicant had no prior
convictions          for     the    offenses ttestified to and this error was not harmless.

See    e.g.,     Vetelo        v. State, 8 S.W.3d 164 (Tex.App.-Waco 2000) Webb v. State,
36 S.W.3d 165 (Tex.App.-Houston[14th Dist.] 2000). The State did not give                          any
notice of        extraneous offenses and the applicant's attorney at trial did not
object and harm is shown because the extraneous offenses improperly bolstered
the    the     testimony of the accomplice witness and the danger is too great that
the    jury would            give upward departure on the character evidence of this type
and that is          because       the    applicant     might      have commited extraneous bad acts
before...he should be givne a larger sentence of the instant charge. This then
created a actual and substantive disadvantage against the applicant and for it
not being objected .to caused the trial counsel to be ineffective.
E.   FAILURE TO PRESERVE ERROR.




                                                        44
        An exception             to Strickland's                 presumption         of    strategy exist when the
record        clearly       confirms          that no reasonable trial counsel would have engaged
in     the     complained         of conduct of omission. Vasquez v. State, 830 S.W.2d 948,
951     (Tex.Crim.App.1992); Weeks v. State, 894 S.W.2d 390, 392 (Tex.App.-Dallas
1994);        Chavez       v. State, 6 S.W.3d 66, 71 (Tex.App.-San Antonio 1999), holding
counsel        ineffective           in      light      of      such   a record is not speculation becuase
the deficient              performance             is confirmed            by    the appellate record. Vasquez,
supra at 951; Weeks, supra at 392; Stone v. State, 17 S.W.3d 348, 350 (Tex.App.
-Corpus Christi 2000). In other                             words, Strickland does not require deference
when there           is    no    concievable            strategic          purpose that would explain a trial
counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 535 (5th Cir. 1985).
        In the exception stated earlier                              the    court     holds      that when there are
"certain exact circumstances that are so egregriously prejudiced...ineffective
assistance           of    counsel         will        be     presumed."        The presumed prejudice is where
there         has     been      an    actual breakdown in the adversarial process at trial it
then becomes highly prejudicial                          and very harmful to the applicant. See Toomey
v. Bunnell, 898 F.2d 741, 744 (9th Cir. 19990).
        The        Supreme      Court        has       held     that    [t]he adversarial process protected
by     the    Sixth        Amendment          requires          that   the accused have "counsel acting in
the     role        of an advocate. Anders v. California, [citations omitted]. The right
to the effective assistance                       of    counsel        is    thus,        the   right to the accused
to survive the crucible of a meaningful adversarial testing. [l]f the process
loses        its     character        as     a        confrontational           match between adversaries,      the

constitutional guarantee is violated, [emphasis added].
       In United          States        v.       Cronic,        [citations omitted], the Court recognized
that     there       are     "circumstances...so                  likely        to   prejudice thwe accused that
the cost of               litigating          thier         effect in a particular case is unjustified."
Cronic,       supra at 658. Th» Court identified that the complete denial of counsel
or the deprivation of                 effective               representation         at    a    critical stage of an
accused:

       "circumstances            of       that magnitude may be present on some occasions when
       although           counsel       is       available        to   assist the accused during trial the
       likelyhood          that      any         lawyer,       even a fully competent one, could provide
       effective          assistance             is    so     small    that      a presumption of prejudice is
       appropriate without inquiry into the actual conduct at the trial. *


                                                                45
Cronic, supra at 659-660.
      Texas     Rules      of     Appellate       Procedure      Article    §33.1 provides: "that in
order to then preserve a complaint for appellate review, a party must present
the   complaint      and        obtain    a ruling." It is incumbent upon counsel to object
at the earliest possible opportunity. Butler v. State/ 769 S.W.2d 234 (Tex.Crim.
App. 1989).
       In order     to effectively             preserve        error   after objection is sustained,
counsel     must    ask for an instruction to disregard and move for mistrial after
the instruction is given.                Nethery v. State, 692 S.W.2d 686, 701 (Tex.Crim.App.
1985).
      The applicant         asserts        that    the       trial counsel failed to preserve error
in the record.

      Objection to Hearsay                                              Objection to Hearsay
      Sustained                                                         Sustained
      Failed to ask for instruction                                     Failed to ask for instruction
      Failed to ask for mistrial.                                       Failed to ask for mistrial
       (RR4: 55).                                                       (RR4: 56).
      Objection to Hearsay and Specualtion                              Objection to leading questions
      Sustained                                                         Sustained
       Failed to request for instruction                                Falied to request for instruction
       Failed to request for mistrial.                                  Failed to request for mistrial.
       (RR4: 53).                                                       (RR4: 202-204).
      The     applicant         avers     that    generally,       an isolated failure to object to
improper      evidence      in     itself        does    not    necessarily constitute ineffective
assistance of counsel, but multiple instances to object and have the objection
sustained     and    failed        to    get      a     ruling or ask for mistrial is ineffective
assistance of counsel.             See Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App.
1985).
       It has     been held that isolated instances in the record reflecting errors
of    commission     or     omission       do     not cause counsel to become ineffective, nor

can    ineffective      assistance          of    counsel       be established by isolating or then
seperating out one portion of the trial counsel's performance for examination.
Bridge/     supra    at     571;     Johnson v. State, 629 S.W.2d 731, 736 (Tex.Crim.App.
1981).
      Also/ representation is not ineffective simply because,                         in   hindsight
the attorney could have or even should have done something differently. Goodin
v. State, 899 S.W.2d 387, 392 (Tex.App.-Houston{14th Dist.] 1995). Allegations
of ineffective assistance1of counsel must be firmly founded in the record. See


                                                        46
Beheler v. State, 3 S.W.3d 182, 185-86 (Tex.App.-Fort Worth 1999). Applicant
takes the position that         the    record is firmly founded in the record with many
instances      of   ineffective      assistance      of   counsel,   i.e.,    in accordance with

the    above    errors   of    cokmplaints which is so inherently prejudicial that so
specific     prejudice need be shown. In the instant case, it is clear that trial
counsel was capable to properly preserve error, he failed in that duty as shown
in the complaint above, and this created an actual and substantive disadvantage
of applicant to recieving a fair trial and trial counsel should be found that h=
denied his client a fair trial.

F. FAILED TO REQUEST SPECIFIC INSTRUCTIONS IN THE JURY CHARGE

       The applicant avers that the trial counsel failed in his duty to request
or raise the issue of alibi. Applicant had three (3) witnesses who testified at
trial that stated that the applicant was at his residence at the time the crime
was committed, and the trial counsel did raise the issue or even request and
instruction on the alibi defensive theory-

       when the evidence is          inconsistent     and   supports more than one defensive
theory, the applicant is entitled to an instruction on every theory raised, >
even    if   the    defenses    themselves     are inconsistent and contradictory. Booth
v. State, 679       S.W.2d    498,     501   (Tex.Crim.App.1984);     Johnson        v. State, 715
S.W.2d 402, 406-07 (Tex.App.-Houston[1st Dist.] 1986).
       There is nothing in Brown's records to suggest that                  he was not entitled
to instructions on defensive theories if it was raised by the evidence. This
reviewing court must consider al relevant information revealed by the record,
including the entire jury charge, the States of the evidence, and the argument
of counsel. VanBrackle v. State, 179 S.W.3d 708, 714 (Tex.App.-Austin 2005).
       The defense of alibi arises where there              is   evidence     that    the   accused

is at a place where he could not have been found guilty of participating in the
offense. Arney v. State, 580 S.W.2d 836, 840 (Tex.Crim.App.1979). A defendant
is entitled to a defensive instruction on every issue raised by the evidence,
regardless of whether the evidence is strong, feeble, unimpeached, or also
uncontradicted. Villareal v. State, 821 S.W.2d 682, 685 (Tex.App.-San Antonio
1991). Even though the applicant contends that alibi is not the type of defense
that entitles a defendant to an istruction. See Holliman v. State, 879 S.W.2d

85, 87 (Tex.App.-Houston[14th Dist.]1994); Green v. State, 928 S.W.2d 119, 125
(Tex.App.-San Anotnio 1996). However, applicant avers that he is entitled to a


                                                47
defensive theory. Also, applicant may rely "on more than one defensive theory."
In     fact,    a    "applicant            is     entitled          to submission of every defensive issue
raised by the evidence.                 Thomas v. State, 678 S.W.2d 82, 85 (Tex.Crim.App.1984)
Party v. State, 994 S.W.2d 215, 219 (Tex.App.-San Antonio 1999).
        Alibi       is     not    a statutory defense and it is not an affirmative defense.
Alibi     is    not       a    defense      within            the accurate meaning of the word, but is a
fact shown in rebuttal of the State's evidence/ therefore,                               it does not demand

a specific instruction from the court. Furthermore, this                                  reviewing    Court
will     hiold      that failing to secure an instruction on alibi is not necessarily
ineffective assistance of counsel. Zuniga v. State, 733 S.W.2d 594, 598-99 (Tex.
App-San Antonio 1987). Therefore, in this case, defense counsel's failure to
request an instruction on alibi was not, by itself, ineffective assistance of
counsel. However, given that applicant's defense hinged on alibi, it is difficult
to understand why any competent defense counsel would fail to ab least try to
get an alibi instruction.
        The Court of Criminal Appeals has held for many decades that "when evidence
of     collateral          crimes    are        introduced           for   one of the various purposes, the
jury     should      be instructed                that        they cannot consider against the applicant
such     collateral           crimes/      unless it has been shown to their satisfaction that
the     accused       is      guilty       thereof." Lankford v. State, 248 S.W. 389 (1923). In
other words, a             jury     should        be     instructed that they are not to consider any
extraneous        acts        evidence       unless they believe beyond a reasonable doubt that
the     applicant          committed        the        act.    See Harrel v. State, 884 S.W.2d 154, 157
(Tex.Crim.App.1994).                 "If     a defendant,             during    the   guilt/innocence phase,
ask for a instruction to the jury on                            the standard     of proof required for the
admittance of extraneous offenses, the defendant is entitled to that instruction."
Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996).
        Therefore, _if applicant's counsel had requested the jury to be instructed
that they could not consider the extraneous act evidence unless they believed
beyond a reasonable doubt that the applicant committed those acts, the requested
charge should have been given.
        Likewise, when the State is permitted to introduce evidence of applicant's
extraneous          bad acts for a limiting purpose, the applicant also has the burden
of requesting            an instruction limiting consideration of those acts. See Abnor
v.     State,       808       S.W.2d 476, 478 (Tex.Crim.App.1991). Applicant has the burden


                                                               48
of    requesting       a limiting            instruction     at the time the evidence is admitted
as    well     as     requesting      a limiting instruction in the charge. See Garcia v.
State, 887 S.W.2d 863, 878 (Tex.Crim.App.1994).
       If a applicant           so Request          this    instruction,   the   trial court errs in
not giving          the instruction.              The state will argue that the extraneous acts
were admissible             for the limiting purpose of showing state of mind, intent,
relationship, motive, and to rebut defensive theories. Therefore, if trial
counsel       had     requested       that     the jury be instructed that they could consider
the extraneous             acts evidence only if for limiting purposes for which it was
offered, the trial court would have been required to give the requested limiting
instruction. See George v. State, 890 S.W.2d.73, 76 (Tex.GrinuApp.1994)(holds
"if the defendant so requests at the guilt/innocence phase of trial, the trial
court must instruct the jury not to consider extraneous offenses evidence that
was admitted for a limiting purpose unless it believes beyond a reasonable doubt
that the defendant committed the extraneous offenses.'Almanza v. State, 686 S.W.
2d 157, 171 (Tex.Crim.App. 1985).
G.   CONCLUSION

      To obtain        a     reversal        on the basis of ineffective assistance of counsel

during the complete proceedings at trial, the applicant must show:
       (1) that his counsel's performance was so deficient that counsels^must show
that he was functioning at the level of competence guaranteed by the Sixth •'.• •-
Amendment, and;

       (2) there is a reasonable probability that, but for counsel's deficient
performance, that the result of the trial would have been different.
Strickland, supra at 695; Hicks v. State, 837 S.W.2d 686, 690-91 (Tex.App.-
Houston[lst Dist.] 1992). The standard of review is quaged by the totality of
of the circumstances.


      Tne circumstances behind the complaint created and actual and substantive
disadvantage to the applicant and this reviewing court will hopefully decide to
hold an evidentiary hearing and with the findings of facts and conclusions of
law order a reversal and vacate the sentence.



                                        GROUND FOR REVIEW NO. 9.
APPLICANT       CONTENDS       THAT     HE    WAS     DENIED    EFFECTIVE ASSISTANCE OF COUNSEL ON
DIRECT       APPEAL    FOR    FAILURE        TO     LITIGATE ALL CLAIMS IN VIOLATION OF THE SIXTH
AMENDMENT OF THE U.S.          CONSTITUTION.




                                                       49
ARGUMENT AND AUTHORITIES:


A.   FACTS

       The applicant           contends         that     his    appellate     attorney     Honorable Linda
Icenhauer-Ramirez            did       hot      litigate       all   the errors that could be claimed
on    direct        appeal     as     shown by          the argument applied in this memorandum and
application. As this                reviewing         court    can   see     by the complaint herein can
be     raised on direct appeal unless the decision not to raise that issue arises
from a         legitimate source and reasonable strategy potential of some advantage
to the applicant. It                is clearly          established      on      the record that the victim
and the accomplice witness perjured                       themselves       but     appellate counsel failed
to raise that issue. Appellate counsel failed to raise ineffective assistance
of counsel claims, failed to raise defective jury charge issues, etc.
B.   APPLICABLE LAW

       It      is    well     established         that a applicant has a constitutional right to
effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387
(1985);        Ex    Parte     Coy,      909     S.W.2d        927, 928 (Tex.Crim.App.1995); Teague v.
Scott, 60 F. 3d 1167,               1170       (5th     Cir.     1995)(the       Sixth   Amendment right to
effective          assistance       of counsel applies both to trials and direct appeals).
In analyzing           claims       of     ineffective assistance of counsel on direct appeal,
Texas     applies       the Strickland standard. See Ex Parte Jarrett, 891 S.W.2d 935,
938 (Tex.Crim.App.1994). Applicant must establish that (1) appellate counsel's
performance was deficient, and (2) due to counsel's unprofessional errors,
there exists a reasonable probability sufficient to undermine confidence in the
outcome. Strickland, supra at 694; Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.
App.1986). The ultimate                question         with     respect     to ineffective assistance on
appeal        is    whether     a     applicant was            afforded a meaningful appeal. Olivo v.
State,        918    S.W.2d     521,         526 (Tex.Crim.App.1996); Ward v. State, 740 S.W.2d
794, 799-800 (Tex.Crim.App.1987); Epps v. State, 809 S.W.2d 770, 772-73 (Tex.
App.-Houston[14th Dist-J 1991).
       The     law     is     clear      that     appellate counsel need not raise all claims of
errors in order to be effective. See Jones v. Barnes, 463 U.S. 745, 751 (1983);
Page     v.    United        States,       884 F.2d 300, 302 (7th Cir. 1989). Nor does the law
require        that    an     appellate         attorney       advance     every concievable argument on
appeal        that    the     trial      record        supports.     See Stafford v. State, 758 S.W.2d
663, 674 (Tex.App.-Houston[1st Dist.] 1998)(citing Gray v. Greer, 800 F.2d 644,


                                                          50
647 (7th Cir. 1986)). Indeed, it is the process of "winnowing out" weaker claims
on appeal and focusing on those more likely to prevail that is the hallmark of
effective appellate advocacy. Burger v. Kemp, 483 U.S. 776, 784 (1987). As Chief
Justice Burger observed in Jones:
           There can hardly be any question about the importance of  having    the
           appellate advocate examine the record with a view to selecting the most
           promising issues for review. This has assumed a greater importance in
           an era when oral arqument is strictly limited in most courts-often to
           as little as 15 minutes-and when paqe limits on briefs are widely; imppsed.
           ...A brief that raises every colorable issue runs the "risk" of buryinq
           good arguments....in a verbal mound made up of strong and weak contentions.

           For judges to second-guess                     reasoanble     professional judqments and impose
           on    appointed           counsel's          duty to raise every "colorable" claim sunnested
           by a client would disserve the verv qoal of vigorous effective advocacy
           that underlies [the Sixth Amendment].
Jones v. Barnes, supra at 752-754.
           If    an issue which was not raised on direct appeal that mav have resulted
in     a        reversal       of        the    conviction      or an order for a new trial,    the failure
is     preiudicial.                 Appellate          counsel's     ineffectiveness   can constitute cause
even        if       counsel's           ineffectiveness;          did   not violate the constitution under

the        requirements             of         the Wainwright standard. It is also reauires the trial
court           to    review        the        entire    record      for significant and obvious errors and
failures.

           Appellate counsel's                   failure to raise claims on direct appeal constitutes
ineffective assistance of counsel and provides "cause" for procedural default.
Clemmons v. Delo, 124 F.3d 944 (8th Cir. 1997). Appellate counsel's failure to
raise legally meritorious issues on direct appeal constitutes ineffectiveness
of counsel. Banks v. Reynolds, 54 F.3d 1508, 1515-16 (10th Cir. 1995). Appellate
counsel's failure to raise obvious issues on the record constitutes ineffective
assistance of counsel. Daniel v. Thigpen, 744 F. Supp. 1535 (M.D.Ala. 1990).
Appellate counsel's failure to raise ineffective assistance of counsel claims
against trial counsel on direct appeal constitutes "cause" for procedural
default for trial counsel's inaction. U.S. v.Ex Rel Barnard v. Lane, 819 F.2d

798 (7th Cir. 1987); Grubbs v. Singletary, 900 F. Supp. 425 (M.D. Fla. 1995).
           Applicant contends                   that    the   failure    of appellate counsel did give the
appellant                anactual        and    substantive        disadvantage   and the court is required
to     hold          a     evidentiary           hearing      to determine the prejudice caused and order
a reversal and vacate the sentence and order the release of applicant.


                                                                51
                                         GROUND FOR REVIEW NO. 10

THE APPLICANT CONTENDS THAT FACTUAL INNOCENCE IS AN EXCEPTION TO THE (ADEPA'S)
ONE YEAR STATUTE OF LIMITATIONS AND/OR IS A GATEWAY FOR REVIEW OF THE APPLICANTS
CLAIMS    OF       INEFFECTIVE       ASSISTANCE     OF COUNSEL AND EVIDENCE IS INSUFFICIENT TO
ESTABLISH THE REQUISITE FINDING OF GUILT IN THIS CASE.

ARGUMENT AND AUTHORITIES:


        'Actual Innocence' bears a heavy amount of scrutiny in the American Justice
System, where officers of the Court has already developed a mindset that anyone
and everyone         who has         been   charged with an offense is guilty, no matter the
circumstances, or the evidence. Their objective is to send an accused to prison,
or place him on probation. They have developed an immunity to anyone who pleads
"NOT     GUILTY"      in any case that is brought before them and God forbid that the
one in        thirty-one      (31)       of every man or woman in the United States is either
in jail or prison or on a supervised release and have not been falsely accused
of a crime due to a scornful and vengeful individual who wants to see a specific
person to suffer by inflicting as much harm as possible.
       Has      the consciousness           of the American people developed a moral attitude
that     no    matter      how lonq a person serves time in prison and paid his debt to
society       in accordance          with    the law, he should never be released? And if he
is released          from prison, should he bare the mark of the Scarlett Letter just
because       he    was released? The Government's Legislative Branch and the American
Judiciary has placed so many safeguards in the law and statutes of the criminal
codes,        that    it    is     impossible      for a person to prove his innocence and thus
is forvered scarred.

       The     beginninq     consensus        of   law   makers   of jurisprudence has been that
"a     person      is innocent        until proven quilty," but, when one stands before the
chosen     tribunal,        that     oriqinal      consensus   becomes   a facade, and is branded
guilty automatically until he can prove his innocence. However, those safequards
that are placed makes it almost entirely impossible to do so. This is an intent
of the Government with the enactment of the AEDPA and other rules.
       The creed of the DISTRICT Attorney is to be a seeker of justice and truth,
instead       of having a Game Show Host zealousness to destroy an individuals life,
and     tearing      aprt    the fabric         of America, the family unit, by taking a human
being     and      placing    him     or her in the New Cattle Market of America titled the
Judicial System. They now become a number instead of a human being and a member
of society. It          becomes      a    fundamental    miscarriage     of   justice when a person

                                                   52
railroaded          by    judicial        powers       in    place with questionable evidence, hungry
prosecutors,         and        disinterested          defense attorney's        who use shady courtroom
theatrics as major actors in a broadway play and the courtroom is their stage,
biased and prejudical judges, vengeful and spiteful individuals, vho's only
wish     is    to        inflict       harm    on the premises of revenge, and a jury panel that
only     considers an accused's past history to determine his guilt by believing
only the words of the prosecution due to the media's hype that places a plethora
of blame upon the accused.
        Actual           innocence       in    this     type of       application is not itself a basis
for     federal          Habeas    relief; it is however, "a gateway through which a Habeas
applicant       must        pass       to have his otherwise time barred constitutional claims
to be        considered           on    the merits of the newly available or already available
evidence         that       is presented           by the         applicant. A applicant may avoid this
bar     by demonstrating                 "cause    for procedural default and actual prejudice as
a     result    of an alleged                  violation of federal law." Coleman v. Johnson, 501
U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).
         However,          this    bar may         also be overcome by a showing that a "failure
to     consider          the    claims     will result in a fundamental miscarriage of justice."
Such     a     fundamental         miscarriage          of       justice may be demostrated by a showing
that     "a constitutional                 violation        has probably     resulted in the conviction
of     one who           is actually           innocent.      Schlup v. Delo, 513 U.S. at 321; Murray
v.     Carrier,          472     U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986).
         To satisfy this standard a applicant must demonstrate that he is "actually
innocent." To demonstrate "actual innocence" it is necessary that the applicant
"show        that    it        is more        likely    than not no jurist of reason would not have
found        applicant          guilty     beyond      a reasonable       doubt. Lucas v.   Johnson, 132
F.3d 1069, 1076-77 (5th Cir. 1998).
         It is highly             prejudical        when     a district court fails to,       or refuses
to,     address          an applicants            claim     of    actual innocence? The applicant avers
that     it     is       important        to    note      that in this regard that "actual innocence"
means "factual innocence," not mere legal sufficiency, even though exculpatory
evidence may              be     weighed       against inculpatory evidence. Clewis v. State, 922
S.W.2d        126,       130,     136     (Tex.Crim.App.1996); Sawyer v. Whitely, 505 U.S. 333,
339, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992).
         In Schlup, for example,                    the court         has then   held that to sustain an


                                                             53
"actual innocence" claim an applicant must                              show    that   it is more than likely
not no jurist of reason would have convicted him in light                                 of the new evidence,
or available evidence." That "evidence" is to be evaluated,                                 of   course, along
with the "evidence" adduced and then its to consider all the evidence contained

in the trial transcripts. The Habeas Court will make it's determination                                     that
concerns the applicant's                    innocence          in light        of all the evidence, including
that which has become available since trial. See Bousley v. U.S., 118 S.Ct. 1604,
1611, 1614, 1615, (1998).
         But      this        kind    of        evidentiary       review       is quite different from that in
which the evidence is examined to                         determine       whether, viewing it in the light
most favorable to the verdict, or any rational trier-of-fact could have found
Brown    guilty             beyond    a reasonable doubt. Indeed, one of the most significant
differences            between        the    so-called          "factual"       and the so-called "legal"    or
the     so-called            "constitutionally"               sufficiency • of the evidence standards is
the latter does not permit a weighing of inculpatory or exculpatory evidence.
         Because            in evaluating a Habeas claim that newly discovered or available
evidence       proves          that       the     applicant       to    be innocent of the crime for which
he    was      convicted,            the    courts tasks is to assess the probable impact of the
newly     discovered or available evidence upon the persuasiveness of the State's
case as           a    whole, the Court must necessarily weigh such exculpatory evidence
against        the      evidence          adduced       at     trial.    The Jackson v. Virginia, standard
of evidence sufficiency is simply not appropriate to this purpose. Of course,
any person who has                     been       finally convicted in an alleged fair trial would
not     be     permitted         to       wage,       a collateral attack on that conviction without
making       an       exceedingly persuasive                   case     that    he is actually innocent which
is one of those spoken of earlier safeguards.
         It is thus entirely reasonable to insist, and the courts should continue
to    insist,          that     a applicant for Habeas relief based upon a claim of "actual
innocence"             must     demonstrate that the newly discovered or available evidence/
if    true/       creates        a    doubt        as    to the efficacy of the verdict sufficient to
undermine             the    confidence          in     the    verdict     and that it is probable that the
verdict would be different [on retrial].
         Applicant must show that "a constitutional violation has probably resulted
in    the      conviction            of     one who is "actually innocent."                In contrast, under
the Carrier standard                  the       newly    discovered        or available evidence may indeed


                                                                54
call    into        question       the credibility of the witnesses presented at trial — to
sustain        a    claim of actual innocence should, at a minimum be able to persuade
the    Court        that the new or available evidence raises a reasonable doubt about

his    guilt,        because       it     focuses      on the applicant's burden of proof, directs
the     Habeas        court, as fact-finder, to weigh the newly discovered, exculpatory
evidence or the availabe evidence against the inculpatory evidence offered                              at
trial for the purpose of determining whether it affirmatively shows that Brown
is innocent.

          Rather,          the    court       charged       with    deciding    such a claim shall make a
case-by-case             determination         about    the       reliability    of   the newly discovered
or     available          evidence       under    the circumstances. The Court then should weigh
the evidence in the favor of the applicant                           against the evidence of his guilt.
Obviously, the stronger the evidence of the applicant's guilt the more strength
of the persuasiveness of the newly discovered or available evidence must be.
         Accordingly, the               Court should hold that, in the exercise of the Court's
post-conviction               Habeas     jurisdiction under Art. 11.07 of T.C.C*P, the Court's
job     is     not       to     review     the jury's verdict but to decide             whether the newly
discovered or available                  evidence would have convinced the jury of the accused
innocence.

        The applicant             avers        that    to    establish    the    above two-sided argument,
the applicant will present his counter argument, under three points:
         (A)        Applicant's         due    diligence to locate and establish evidence of his
                    innocence,

         (B)       The credibility of applicant's factual innocence.
         (C)       Actual innocence is an exception to the A.E.D.P.A.'s statute of
                   limitations which includes the following two prongs;
                     (a) Constitutionally, and discussed from, one proceeds the
                         Suspention Clause of the U.S. Constitution,
                     (b) Equitable tolling is merited.
        Unfortunately, this Court cannot assume that a factual innocence gateway
is simply available                to     the applicant unless he has been reasonably diligent
and     his        factual        innocence      meets       the threshold requirement. Both of these
considerations             of    the     law     that provides an innocence exception and gateway
and in support the applicant will show the court as follows:
        To         support      applicant's claim, he has attached a graphic exhibit titled
Chron loqical             Timeline       of Filings. This exhibit does demonstrate applicant's
diligence           in    pursuing       his     factual         evidence that supports his claim of his



                                                            55
innocence, via his numerous filings in an attempt to be timely, and to preserve,
as well as pursue his claims.
         Applicant has not "sit on this case." At every possible timely opportunity
he has     been    diligent in attempting to have the Court's to see this evidence
by filing writs in the State Court, Federal Court, and the Supreme Court, filed
for D.N.A. testing and purchasing his records that explained the many errors that
along with the evidence that proves his innocence in which his trial attorney
failed in-his duty to pursue in trial. See Chronological Exhibit. There was
also the State's delay in not filing his original application in January 2002,
in which also caused a time bar issue. Due diligence                  is   defined   by   Black's
Dictionary        as a   fair     degree of diligence expected from someone of ordinary
prudence as well as, a continual effort to accomplish something. Accord                      to
Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999); Coleman v. Johnson, supra at
401.

         The applicant      avers     that     his    direct   appeal was filed on January 29,
2001 and affirmed on July 26, 2001. He then filed a Motion for Extension of time
to file a Petition For Discretionary Review was filed on August 17, 2001, this
was granted until October 26, 2001, the case was issued a mandate on November
9, 2001. Brown mailed his Application for Writ of Habeas Corpus in accordance
with     Article    11.07    of     T.C.C.P.     from     his unit on January 27, 2002 in which
was not filed by the Court Clerk               until June 4, 2002. There was 129 days that
the writ was in limbo. See Exhibit B, C. The Texas Supreme                   Court has repeatedly
held that a litigant should not be prejudiced by the Clerk's errors. See e.g.,
Coastal Banc SSB v. Helle, 988 S.W.2d 214, 215-16 (Tex.1999); Williams v. T.D.
C.J., 142 S.W.3d 308, 309 (Tex.2004).
         The applicant avers that when the date of the P.D.R. was due was when his
one year limitations period began and would not be up until November 16/ 2002.
See Exhibit M. During the period of time in which he was waiting on a ruling of
his 11.07 writ he wrote several letters at different time intervals to request
the status of his 11.07 writ. See Exhibit E. Brown then filed a petition for
Writ of Mandamus on June 3, 2002, which was denied along with the 11.07 Writ on
September 11, 2002. See Exhibit N>:
         While it was once true a Writ of Habeas Corpus could not be "obstructed"
Congress     changed     this     with   the     enactment     of the AEDPA as explained in 28
U.S.C.     §2254(d)(l)      does not prohibit             the Courts from entertaining actions


                                                     56
after the statutory                limits    has passed, instead it merely sets forth relevant
statute         of    limitations.         Now    therefore,        the statutory   language in section
§2254      (d)(1)          indicates     that     congress did not intend the limitations period
to divest federal jurisdiction. Johnson v. Avery, 393 U.S. 485 (1960); Underwood
v. Williams, 131 F.3d 292, 295 (5th Cir. 1998). Instead Congress chose the
intent      to the           AEDPA         limitation       amendment into §2254 for the purpose of
"finality of determination" and contains provisions relating to non-jurisdictional
limitations." The                Supreme     Court    has asked the lower courts to exercise care
in the evaluation and dismissal of the Habeas Corpus                          and the dismissal denies
the     applicant           of    the   Great     Writ      enitrely, risking injury to an impartial
interest in human liberty."
         The         applicant       avers    that    this is a successive application, there was
no available way to present this argument since the records were not available
in the past. The record clearly states the main reason for the actual innocence
complaint. There was prove brought out by alibi witnesses that showed that the
applicant was not at the crime scene when the offense was taken. The record so
shows       that           the   evidence     was    brought        by a victim who testified to having
sex     with         the    accomplice-witness.             since    she was fifteen (15) years of age
and     giving         her drugs and money. You have a accomplice who testified to being
a prostitute who recieved money and drugs in exchange for sexual favors.
         The trial           court      refused to take judicial notice of the alibi witnesses
testimony. State's                Exhibit     #22    was        produced fraudulently by the victim and
the trial court allowed the use of the evidence. The accomplice witness did so
testify that the gun used in the offense went in the residence and left the
residence. Plus, the District Court Clerk on purposely held the first Writ and
Application for a 5 month delay to keep the applicant from filing timely to
keep with the guidelines of the AEDPA.
THE CREDIBILTY OF APPLICANT'S FACTUAL INNOCENCE

           In    order       to    make a claim of factual innocence, applicant must present
any     reliable           evidence        that     wwas    not considered at trial and show that if
it    is    more           than likely that no jurist of reason would have found him guilty
beyond a reasonable doubt." See e.g., Lucidore v. New York State Division of
Parole, 209 F.3d 107, 114 (2nd Cir. 2000)(quoting Schlup v. Delo, supra at 851).
In assessing the adequacy of applicant's showing, the reviewing court is not
bound by the rules of admissibility that would govern at trial...but may consider
the probative force of relevant evidence that was either excluded, unavailable,


                                                           57
or unconsidered          at       trial.     Therefore/       new evidence is not limited solely to
the unavailable at trial, as long as                     it    is   evidence that the original fact
finder did not consider this approach is consistent with the innocence threshold
newly established in Texas. Ex Parte Thompson, 153 S.W.3d 416 (Tex.Crim.App.2005),
it is a viable          and    reviewable        claim     that should be heard on the merits. In

Thompson, Justice Cochran and Holcomb, issued a concurring opinion in which they
formulated        a    step - by - step        process in determining if an innocence claim is
not only credible but likewise merits a                       new   trial.
         Applicant offers             this    proposed     formula for the court's consideration/
in view of the case of Ex Parte Thompson. This process includes:
         (1) the trial court hears the newly discovered evidence, it assess the
             credibility of the witnesses and the persuasiveness of that evidence
               and it makes a finding of facts concerning it's assessment of that
               evidence, both individual pieces and collectively,
         (2) the trial court decides whether that 'new evidence' is both credible
               and, by clear and convincing facts that the evidence by itself then
               unquestionalby proves the applicant's innocence, should the trial
               continue,

         (3) the trial court compares the 'new evidence' with the 'old evidence'
             from the original trial or other proceedings in doing so/ the trial
             court might envision the situation as if the original jury trial
               took place all in one morning,
At    that     point     the       jury    believed the States evidence, returned it's guilty
verdict and heard all the punishment evidence. The jury took a lunch break
afterward and that same jury returned and heard all the new evidence, evidence
that     the   court        has     already     found, as a matter of fact, to be credible and
establishes innocence, and was asked to render a second verdict after hearing
the    morning        and     afternoon       testimony.      It is only if that jury acting on an
intentional basis after hearing and                   believing       both   sets    of evidence, would
necessarilly acquit the applicant (because the 'old and new evidence' cannot be
reconciled rationally), that the trial court may conclude that the applicant
has unquestionably established his innocence of the crime for which he was then
convicted of. Thompson, supra 417.
       To summarize, the applicant compares not new or old evidence but the only
relevant evidence that was adduced at trial.
         Sonya    Holder,         a   known     prostitute      and with a drug addiction to crack
cocaine,       applicant's         accomplice-witness/          testified     that   she been with the
applicant      on September            29,     30,   1999,     she was with applicant, applicant's
friend     Sean       and applicant's           cousin     Quincy     and they discussed robbing the


                                                      58
the     victim.      Tney    asked       Holder      if she knew where the victim kept his drugs
and     when    she said          yes,     they    asked her to help them. (RR4: 46-48). Holder
related that they drove to the victim's home which was located in his automotive
repair shop.         She     knocked        on     the    front    door and when the victim answered
the door, she told him that she needed to use the restroom.
         The      others     were        waiting     off to one side. Holder testified that she
entered        the    victim's      small        apartment and proceeded to the bathroom. Holder
testified that when she              returned        from the bathroom she saw applicant holding
the     victim       by     his    neck     up     against the wall and Quincy was holding a gun
to the victim's head. As                 she     walked    by,    the    victim asked her for help but
she walked outside and got in the car. (RR4: 52-54).
         Holder       testified that at about five minutes or ten minutes later Quincy
returned        to    the   car.     They        were    later joind by applicant and Sean who was
holding        the    pistol. Applicant was allegedly holding a 12-guage shotgun taken
from     the    victim.      Holder        also noticed          that the applicant had some blood on
his shoes. Applicant was                 allegedly       have     said   that   they had pistol-whipped
the     victim       and    they    were going to kill him because he knew who Holder was.
Applicant       was     allegedly         to     have said he had tried to shoot the victim with
the .22 pistol which Sean had but it got jammed. Then                           he   had   tried to shoot
victim with the 12-guage shotgun but it also jammed. (RR4: 55-63).
         Holder       testified      that        they    drove to a friend's house where applicant
wiped     the blood from his shoes. They then drove to applicant's cousin's house
where applicant allegedly hid the shotgun and the pistol. Later he allegedly
sold     the    shotgun      to     someone        in exchange for crack cocaine. When applicant
allegedly       returned      with        the crack        cocaine,      they smoked it. (RR4: 63-65).
Holder     testified        that     night after the robbery, applicant threatened to kill
her if she told anyone about the robbery. On cross-examination, Holder testified
that applicant has medium to dark skin, wears a mustache and is age "thirty-
Something." (RR4: 79). (Applicant does not have a cousin named Quincy).
         The    victim      Pete     Arevalo, confessed to having sex with the 21-year old
Holder for five years since she was the age of 15 or 16 years of age therefore
committing aggravated sexual assault of a child. He also testified to giving
her money and drugs which he confesses to drug dealing. (RR4: 211-238).
         During the case-in-chief the defense brought three (3) defense witnesses
who are alibi witnesses for the defense who can attest to the applicant being


                                                         59
at home during the offense in question.
         Margaret Walker, the             applicant's         girlfriend at the time of the offnese
testified        on direct examination             that on September 30, 1999, applicant worked
on     her     car     installing      a new engine. The new engine was delivered at around
9:00     p.m.     on September 29th, and applicant was still working on the car when
she     left     for    work at 4:00 a.m. the following morning October 1, 1999. (RR5:
6-28).
         Steve       Michaelenko/        applicant's          neighbor,   also     testifed that around
September        29,    or September            30, 1999, applicant was installing a new engine
in his         girlfriend's car. He also testified that that applicant worked four or
five nights in a row. (RR5: 28-38).
         Stefan Michaelenko, Steve's son, aslo testified that he remebered accused

working        on his girlfriends               car all night long one night towards the end of
September, 1999. (RR5: 43-51).
         As the Supreme Court has stressed, "actual innocence" means "factual
innocence"       and     not     merely        legal     issues     and ideas, even though this is an
integeral relationship between the two. Bousley v. United States, 113 S.Ct. 1604
(1988). And, as above the applicant has demonstrated the existence of a factual
link     between the two. Now for the benifit of the court's closer consideration
applicant will explore the facts and issues in depth.
FACTS

         The    applicant        was     charged,        indicted    and convicted of the offense of
aggravated       robbery.        The     State     pleaded in the indictment that the applicant
"threatened" to cause serious                    bodily injury to the complainant while seeking
to prove applciant actually                   "caused"    serious     bodily injury. The complainant
described       his assailant            as    a light-skinned black male, between the ages of
18 to 20 years of age.
         The applicant is a dark-skinned black male, in his thirties, and frequents
a beard and mustache. (RR4: 12-13, 79, 172). It is significant to note that the
actual perpetrator of the offense was specifically and pointedly described as
a light-skinned black male, between the ages of 18 to 20. (RR4: 106-108).
         The    victim's       description        of the light-skinned attacker never waivered
or changed. (RR4: 170). The                investigating          detective   in   the   case, Roy Gay/
testifed       that     the     victim    described        to     hin the perpertrators as one being
light-skinned          and     age 18 to 22 and the other being very dark skinned. (RR4:
14).     Clearly,        the    victim        distinguished        between the complexion of the two


                                                         60
of his attackers. On cross examination, Dectective Gay testified the victim told
him a light-skinned attacker, a voung male between the aqe of 18 to 22, is the
one who beat him with the pistol and then took the shotgun away from him and he
left with it. Regarding            the   alleged     dark-skinned   male    who   partook in the
robbery,      Dectective     Gay     testified       that the victim told him that he did not
get a good look at the second individual and did not feel like he could identify
him. (RR4: 170-172).
        The    victim, during his testimony, attested to being shown a photo line
up at his place           of      business      by Detective Gay, and he specifically picked
out    the    applicant      in    the tainted photo line-up, "That is the light-skinned
one    of    the three who robbed me." Afterwards, the victim signed and affidavit
indicating he picked out the applicant. (RR4: 154-158). The complainant made it
clear that he could not identify the other two robbers. (RR4: 170-172), but on
further testimony he stated that the light-skinned one is the one he struggled
with, alleged to be the applicant. On cross-examination, Detective Gay admitted
that the applicant's picture was over exposed to show him to be lighter skinned
that the other five (5) people in the photo line-up. (RR4: 12-13).
       Since     the victim described his attacker to Detective Gay to be a light-
skinned      black   malebetween         the   age   of   18 to 20, the Detective clearly     as
alleged by the applicant overexposed the picture to comport with the complainant
intitial description, making it all but inevitable for the complainant to pick
out the applicant during the tainted photo line-up. As guidance to this Court,
and   helpful     in   its     analysis        to applicant's claim of the corrupting effect
of    the    photo line-up against the eventual in-court identification, the trial
court posed an important question to Dectective Gay:
       "The Court: What about the question. Do you see him as lighter than all
                       the others?"

       "The Witness: Yes, sir, from the picture, he is much lighter                    but that's
                          the only picture I had of him and that's what I [t]hought
                          he looked liked." (RR4: 15).
Clearly, Detective Gay went to the victim's                 place   of     business,   convinced
he had the perpetrator            of the robbery and attack, and showed           the applicant's
photo as much lighter than all the other photos to make it all but inevitable
for   the     complainant to pick out applicant. Due to the tainted and corrupting
out-of-court photo line up.




                                                     61
         During      the    eight        (8)     month       interval      between the offense and trial,
the     victim admitted             to   visiting          Sonya     Holder several times while she was
in     jail    for     this    charged offense,               and placing       money on her books for her
use.     (RR4:     224-226).        Said        visits by the victim of a crime was clearly very
impermissible.         The     applicant asserts                  that    it was during these visits that
the evidence           shifted      all        against him, and not the real perpetrators, which
included       the   light-skinned black male between the age 18 to 20. In addition,
and     significant         to applicant's position, Sonya Holder attested to recieving
testimonial        immunity in exchange for her testimony and it was her hope she'll
recieve       probation,       in spite              of having a prior felony, for being the master
mind in the robbery against the complainant. (RR4: 39-40, 72, 88). Sonya Holder
subsequently recieved probation for her part in the offense and the applicant
was the sole one punished and sent to                        prison.
         The     applicant presented alibi testimony, seeking to prove and establish
his     whereabouts        at the time of the offense, and that not only is he a victim
of     irreparable misidentification, but that the witness Sonya Holder presented
clearly perjured and fabricated testimony. The                             applicant    presented   three
(3)     witnesses      wo     all    testified             to the applicants whereabouts at the time
of the robbery. Witnesses                Margaret          Walker,       Steve and Stefan Michaelenko all
testified       that    the     applicant,            on    the date and time of the offense, worked
on     Margaret's      car, and worked all night on her car, installing a new engine.
Margaret       testified       that      the applicant was still working on her car when she
left for work the following morning at 4:00 a.m. (RR5: 6-19, 28-34, 43-49).
         In light of the above,                 the applicant asserts he comes inder the 'actual
innocence' provisions of Schlup v. Delo, [citations ommitted], and that due
process would best be served for the applicant by this Court entertaining the
application to alter a fundamental miscarriage of justice from prevailing into
the conviction of an innocent man.

ACTUAL INNOCENCE IS AN EXCEPTION TO AEDPA STATUTE OF LIMITATIONS.

        Constitions of both Texas and the United States embodies the Due Process

and the Suspension            Clause,          and     Equitable     Tolling     is merited in this case.
The assertions of           actual       innocence are currently catagorized as Herrera-type
claims or Schlup-type claims. Herrera v. Collins, 113 S.Ct. 853 (1993); Schlup
v. Delo, 115 S.Ct. 851 (1995). These actions have been adopted into State law
in Texas, See Ex Parte Elizondo, 947 S.W.2d 202, 208 (TEx.Crim.App.1996); Ex
Parte Franklin, 72 S.W.3d 671 (Tex.Crim.App.2002).


                                                            62-
       A Herrera-type claim involves a substantive claim in which the applicant
asserted a bare claim or a free standinq claim of innocence based on newly
discovered evidence, and ont the other hand, is a procedural claim in which the
applicant's claim of innocence does not alone provide a basis for relief but is
tied to a showinq of consitutional error at trial. Schlup, supra at 314.
        Habeas Corpus            is    the       proper     vehicle for actual innocence claims- "The
principle purpose of the writ of habeas corpus is to serve as a bulwark against
convictions           that     violate       fundamental           fairness."    Engle v. Tanac, 102 S.Ct.
1568        (1982);     Wainwriqht          v.     Sykes,       97 S.Ct. 2497 (1977). The truth is that
courts       are      made     up     of    fallible people, not machines or dieties but rather
those creatures               that     are       prone to error type people. And, Habeas relief is
based       upon      the     principle          that     "in a civilized society, the Government may
be held accountable to the judiciary for a man's inprisonment; if the requirement
of law, the individual is entitled to his immediate release, and claims of any
actual innocence raises issues of constitutional magnitude." Elizondo, supra at
204.

        This principle                is assential          in a      constitutional system. "After all,
the central purpose of any system of Criminal Justice is to convict the guilty
and free the innocent." Herrera, supra at 339; U.S. v. Nobles, 95 S.Ct. 2160
(1975). The presumption                    of innocence is afforded throughout his entire trial
and     is rooted           in    American        Jurisprudence         and tradition. Kirby v. U.S., 19
S.Ct. 574, 577 (1896).
        "A criminal           process        becomes        deficient    when it offends some principle
of justice rooted in the traditions and                            conscience    of    our   people as a hole
to     be    ranked      as      fundamental."            Medina v. California, 112 S.Ct. 2572 (1922)
quoting Patterson v. New York, 97 S.Ct. 2319 (1977). For all practical legal
purposes, habeas corpus                 is       the     last     judicial inquiry intto the validity of
a    criminal         conviction,          and     the final opportunity, of the courts to correct
their inevitable errors, as well as give recourse to the innocent. This is not
to say that             either        the District Attorney's or the Court's are in any evil
or cruel,          however,         applicant          would ask this reviewing Court to take notice
of     judicial        or adjuducative                 fact(s),     for example, pursuant to Rule 201 of
the Federal Rules of Evidence titled                         Judical    Notice    of    Adjudicative facts,
applicant       asserts          the facts             listed     below are within the scope of the rule
and merit          notice        is    that (1) the facts are generally known, (2) capable of
accurate and ready determination by reason to sources whose accuracy cannot


                                                            63
reasonably be questioned, and is mandatory when the court is supplied the proper
information.

         Applicant       argues     that    case law supports         this position of the court
taking judicial notice of facts that could influence the outcome of the trial,
hearing,        or decisions        of     the court. These Courts include/ Ennis v. Dupree,
136 S.W.2d 702 (1964); Clayton v. Remmer, 136 S.W.2d 562 (1964) and specifically
in criminal proceedings, People v. Mayer, 45 P. 860 (1896); Ross v. United States,
374 F.2d 97 (8th Cir. 1967).
         And,      this issue specifically relates to the Mens Rea of people involved
in the case that while not intentionally have made an effort to decieve others
have nonetheless demonstrated a mindset conductive to arriving at a conclusion
other       than   the    truth. Specifically the applicant asserts that the facts the
Court     must     take judicial notice that includes the following, (1) the efforts
of    law    enforcement         officials       to "stop crime" is highly competitive, and in
support      United      States Supreme          Court Justice Day noted in the landmark case
of Weeks v. U.S., 34 S.Ct. 344 (1914), that "the tendency of those who execute
the criminal laws           of    the     country to obtain convictions by means of unlawful
seizures        and enforced confessions, the letter often obtained after subjecting
the accused person to unwarranted practices that are destructive of the accused
rights secured         by    the Federal         Constitution      should find no sanction in the
judgments of the courts."
         (2) There       exists    within        the   Great State of    Texas literaly dozens of
agencies charged with law enforcement of State and Federal Law. (3) At every
agency      encourages      citizens to do so in an effort to reduce criminal activity
and     investigate allegation^              of wrong         doing. (4) While generally speaking
of    law    enforcement         agents    may    no    longer act as Justice Day suggested and
use     unlawful      means,      to    achieve there ends, the competitive nature of these
agencies still exist. (5) Currently there are numerous victims rights lobbyist
registered with the States of Texas placing pressure under the Legislative part
of the Government to eradicate crime any way possible. Applicant was arrested
and found guilty of Aggravated Robbery and convicted for 32                    years in the Texas
Department of Criminal Justice. It was not because of his participation if any
it was because a 60            year old man who admitted to having sex with a 21 year old
prostitute for 5 years trading the sex with money and drugs, but the State does
not want the jury to look at the private life of Pete Arevalo, it wants the jury


                                                       64 .
to concetrate on the applicant because of his past which is stereotypical of a
prosecutor wanting to secure a conviction at any cost no matter that the accused
had alibi witnesses who testified that he was nowhere near the victim on the

day and time in question.
         The    victim    admitted      that    he    was committing crimes of sexual assault
of a child and drug         distribution. The accomplice witness Sonya Holder stated
that the gun in question used to pistol whip the victim was taken out of the
home as it was taken in. The victim manufactured evidence which continues to

show that he had a propensity to committ crimes but he was never prosecuted due
to his alleged victimization by the accused.
        Habeas    Corpus     is a "Writ Of Right,"            as according to U.S. Constitution
Article I §9, nor is the access to the courts via this writ of right be denied.
Johnson    v.    Avery,     supra at 485. "Section §2254 does not prohibit the courts
from entertaining actions after the                  statutory          limitations   passed,   instead
it merely sets forth relevant statute of limitations. Therefore, the statutory
language of       Section     §2254(d)(l)       indicates that Congress did not intend the
limitations period to divest federal jurisdiction." Recent important decisions
that are relevant         to Texas       and may          impact        this claim of actual innocence
thus includes, Detkey v. Haley, 124 S.Ct. 1847 (2004); Enqle v. Issac, 102 S.Ct.
1558 (1982); Murray v. Carrier/ 106 S.Ct. 2639 (1986); Finley v. Johnson/ 243
F.3d 215 (5th Cir. 2001); Dowthitt v. Johnson, 230 F.3d 733 (5th Cir. 2000).
These cases involve the hearing of actual innocence, and applicant would now
discuss the inter-relationship of these cases under the next section.
CAUSE AND PREJUDICE

         In Engle, the Court formulated              a two prong test and approach to dealing
with defaulted claims in State Courts. Any applicant bringing actual innocence
claims    to     federal and State courts after procedural default must demonstrate
cause     and prejudice       before obtaining relief. Here we also learn, "while the
nature    of     the   constitutional      claim may affect the calculation of cause and
prejudice, it does not alter the need to make a threshold showing." In summary,
this is explained          that   the    indigent, pro-se litigant, must explain why his
claim     was defaulted, thus, showing cause and showing how he was harmed by its
prejudice. In Enqle, the          test    was    applied           to    a capital murder trial where
the     main default was      failure     to    object to impriper              jury instructions.   In
Murray, the Court decided they liked the cause and prejudice test as well                            and
they applied it to a defaulted discovery claim, but agreed that the claim was
subject to dismissal because it failed to establish cause for default.




                                                     65
         They    also      introduced       some other radical ideas, "showing       that actual
or     legal    basis      for    claim was not reasonably available to counsel, or that
some     interference        by     officials made compliance with State's procedural rule
impracticable,          would     constitute     cause for       procedural default. Ineffective
assistance       of consel is cause for procedural default, but Exhaustion Doctrine
generally       requires         that    such   claim must      be presented to State court's as
independant       claims         before    it   may be used to establish cause for procedural
default."

         And    the   most        important of these issues is that a "showing that actual
or     legal    basis      for    claim     was not reasonably available to counsel, or that
some     interference       by officials         made compliance with the State's procedural
rule impracticable, would constitute cause for procedural default." Also, if a
litigant can show that things were kept secret from him, the basis of the claim
was beyond his knowledge then relief might be available.
         In Haley, the Court addresses the idea of expanding the "actual innocence"
claim to non-capital cases. Oddly,                   they declined    to do so and reversing the
5th Circuit case saying that Federal Courts                    must first address all non-default
claims. The federal and State courts will not entertain procedurally defaulted
constitutional claims in application for Habeas Corpus absent showing of cause
and prejudice to excuse the default, unless Habeas Corpus applicant can rightly
demonstrate that alleged constitutional error has resulted in conviction of who
is actually innocent of underlying offense.
         In Finley, the prosecution failed to disclose highly prejudicial evidence
exculpatory in nature in violation of Brady. Here Texas's abuse of writ doctrine
acted as a procedural bar and demonstrated a "cause" sufficient to meet the one
standard, and the innocnece demonstrated by the Brady evidence met the prejudice
test and represented a "fundamental miscarriage of justice."
         In Dowthitt, applicant argued               that    affidavits of mental health experts
demonstrated      denial         of right to counsel due to failure to present mitigating
defense     based     on    mental        illness.    The    court refused to find weither cause

and    prejudice      and    held        that no evidence of actual innocence was presented,
and so the applicant was promptly killed. Because these cases are very instructed
regarding       the   process       of    how   the law and local courts should review these
claims    they are         cited and         included      as suggested reading, pursuant to the
above, applicant would like to show the court as folows:




                                                      66
CAUSE FOR PROCEDURAL DEFAULT

      Applicant asserts     that   he suffered   procedural   default     of the AEDPA
one year rule, and is therefore procedurally barred from review and this was
caused by the miscalculation by the courts on when equitable tolling was to be
applied. As explained earlier in this memorandum that the applicant;'s         first-
Habeas Corpus application equitable tolling was defaulted due to the Court Clerk
of Travis County failed to file the application when they recieved it of the 31st
of January 2002. The first application was mailed from the Jordan Unit on January
27, 2002. See the following:
Appeal filed                                 January 29, 2001
Appeal affirmed                              July 26, 2001
Motion for Extension of time to file PDR.    August 17, 2001
Extension of time granted until              October 26, 2001
One year limitation period ends              November 16, 2002
Mandate issued                               November 9, 2001
Application mailed                           January 27, 2002
Court recieved                               January 31, 2002
Clerk filed                                  June 26, 2002          150 days passed
Writ of Mandamus filed                       June 3, 2002
Certificate of service on mandamus           May 29, 2002          misconstrued date
Application and Writ of Mandamus Denied      September 11, 2002         223 days total
Petition for §2254 filed                     March 7, 2003              177 days
Equitable tolling days left                                              46 days
Decision on §2254 (Time     Barred)          April 11, 2003
Applicant recieved ineffective assistance of counsel for failre to provide expert
witness, failure to call exculpatory witnesses, failed to object to extraneous
offense testimony, failed to preserve error, failed to request to specific jury
charge instructions, failed to object to jury charqe- Applicant recieved          the
ineffective assistance of appellate counsel for failure to litigate all available
claims, including not arguing ineffective assistance of counsel which is cause
in itself.

PREJUDICE PROVIDED BY THE TRIAL COURT

      Applicant asserts that he is actually innocent of the crime and he was
convicted    of   aqqravated robbery and was prejudiced by the State by the usinq
of manufactured evidence by the victim, perjury by the accomplice witness and
the tainted in-court identification of the applicant. Applicant provided alibi
witnesses that showed he was in a different place at the time of the offense in
which the court and the jury never considered due to the past of the applicant.
As further explained in this memorandum.
IN THE CASE AT BAR




                                        67
         The applicant avers that he did not have his trial records until January
of 2009, when he was able to brinq toqether the finaces to purchase the record
and the applicant had only the appellate brief to go on for his past filinqs.
This is why the applicant is asking the court to alow him to file a successive
writ in order to exhaust these errors and prove his actual innocence. Habeas
Corpus is a unique civil action that incorporates some aspects of criminal law,
in which the Second Circuit Court of Appeals has used the Medina standard to
determine whether a procedural rule governing federal law related to Habeas
Corpus     in which     violated the Due Process Clause. See Triestman v. U.S., 124
F.3d 361, 379 (2nd Cir. 1997). Applicant request that this reviewing Court to
adduce a findig of fact and conclusion of law             concerning    what   standard   of
review     it had adopted        to guage the actual innocence claim made here by the
applicant* Some Habeas Courts have suggested that a complete procedural claim
of actual innocence would raise significant questions under the Due Process
Clause, the Eighth Amendment, and the Suspension Clause of the U.S. Constitution.
See Ludicore v. New York, 209 F.3d 107, 114 (2nd Cir. 2000).
ACTUAL INNOCENCE HA A CONSTITUTIONAL DIMENSION

         The Supreme'    Court   has observed that "concern about the injustice that
results from     the    conviction   of an innocent person has long been at the core
of our     criminal     justice system."      Schlup     v. Delo, supra at 851- Likewise
the Supreme Court has stated that it is a "fundamental value determination of
our society that it is far worse to convict an innocent man than to let a
guilty man go free." In Re Winship, supra at 1068. In several cases including
Herrera,    Murray,     and   McCleksy, the Supreme Court has cited a constitutional
factor to 'actual innocence' and consistently cited the existence and exception
to bar from review where a applicant's lack of compliance with some procedural
requirement would otherwise bar review. See Bousley- v.                U.S., supra at 1604;
Schlup, ibid. "It is curious that there exists a question              of what area of the
constitution is impacted by 'actual innocence* in view of              the procedural bar
os one of Congress making in §2254{d)(2)," in that, while              it is the Fifth
Amendment that clearly governs actions of Congress.
         It is the State that     applicant    alleges     to have violated Due Process,
by the continued incaceration of an innocent man. The Court held in Alexander
v. Keane, 991 F.Supp. 329 (SDNY 1998), questions the applicability of the
Fifth and Eighth Amendment, explaining "it is not clear how either the Eighth
Amendment (of for- that matter, the Fourteenth Amendment Due Process Clause)



                                              68
applies      as when as here> a state is imposing the punishment, but it is access
to     the   federal     courts    that     is sought." The Alexander court concluded that
the only constittional issue raised by the applicant's claim of actual innocence
was the 'suspension clause' [emphasis added] See Art- I §9 CI.2 of the United
States Constituion.

'•••   Courts have benn hesitant to address the 'Constitutional Dimesion of Actual

Innocence' if it may reasonably construe (that) statute to avoid constitutional
question. See Arnatt v. Kennedy, 94 S.Ct. 1653 (1974); Wainwright v. Sykes/ 97
S.Ct. 2497 (1977). Therefore, equitable tolling is merited as with 'actual
innocence' and 'miscarriage of justice' exceptions to other procedural bars to
review, a toll for actual innocence would be consistent with AEDPA and it's

objective of avoiding undue delay and promoting finality. See Calderon v.
Thompson, 118 S.Ct. 1489 (1998). The miscarriage of justice exception is then
altogether consistent—with the AEDPA's central concern that the merits of
concluded     criminal proceedings not to be revisited in the absence of a strong
showing of actual innocence. Actual innocence also has a^statutory basis in the
§2254(d) sections as it allows for relief invited by Governmental delay.
CONCLUSION

        Applicant       asserts    that     the   delay along with the other factors listed
in this argument needs            am     evidentiary    hearing to have the issues addressed
by the courts with the findings of facts and the conclusions of law to determine
the merits and order a reversal.



                                       GROUND FOR REVIEW NO.    11

THE    APPLICANT       CONTENDS    THAT     THE   APPELLATE    COURT MISAPPLIED THE STANDARDS
OF NEIL V..    BIGGERS IN THE AFFIRAMTION OF THE APPELLATE REVIEW.


ARGUMENT AND AUTHORITES:


:->     The applicant contends that the appellate court misapplied the standards
of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375                (1972). See Brown v. State, 64
S.W.3d 94-(Tex.App.-Austin 2001). The State Court relied on the states cases of
Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); Loserth v. State, 963
S.W.2d 770, 771 (Tex.Crim.App.1998). As the standard of review for a ruling on
a "Motion to Suppress An In-Court Identification" due to an impermissible and
suggestive pre-trial identification procedure, the Neil v. Biggers, five (5)
factors were cited but not adequatley applied. The State Court admitted that
the third prong of Biggers, (The accuracy of the prior description) was not


                                                   69
but sought to justify the other four factors which all are interconnected and
stemmed to the initial description given by the victim.
        Detective Gay, who         conducted      the photo-lineup, during questioning from
the    trial      court,     testified    that    applicant's picture was much lighter than
the other five pictures, (RR4: 15), because he [t]hought that's how the accused
looked. Detective Gay           further testified that in spite of the victim's assertion
and unwavering statement that his attacker                was    a   light-skinned      black   male
between     the age of 18 and 20, (which is what the applicant believes promted the
detective to display the picture of the applicant much lighter than the other
five), that after seeing the applicant for the first time at trial, he realized
that the applicant has "very dark, black skin," (RR4: 12-13).
        Said photo of the applicant/ being much lighter than the others, made it
easily distinguishable, and all but inevitable for the victim to pick out the
applicant      in    the     lineup.    Applicant respectfully request for this reviewing
court     to examine State's Exhibit No. 1 the photo lineup, to decide for itself
whether or not the same was impermissibly suggestive. Said practice by vigilant
police officers has been long condemned by federal law, as defined by the U.S.
Supreme Court. See Simmons v. U.S., 390 U.S. 377, 88 S.Ct. 967 (1968).
        Said constitutionally infirmed procedure made the subsequent in-court
identification unreliable. See Mason v. Brathwaite/ 432 U.S. 98, 97 S.Ct.2243

(1977).     The     facts     in the instant case creates a very substantial likelihood
of    irrepairable         misidentification.      (See   the    five     (5) factors of Biggers,
infra, for guidance). Said             factors,   weighing      against       the corrupting effect
of the pre-trial identification procedures, clearly establishes constitutional
error. The five (5) factors are as follows:
        (1). Adequate opportunity to view the applicant.
                  Even     though the victim contends he had adequate opportunity to
                  view     his attacker, alleged to be applicant, he clearly described
                  the attacker he viewed as someone who was light-skinned and between
                  the age of 18 to 20, but in        actuallity         the   applicant was in his
                  thirties, and wore a beard and mustache.

        (2) The witness's degree of attention.
                  The victim contends he stood face-toface with his attacker, yet
                  he still rendered a description shortly after the incident of
                  his attacker as someone that was other than the applicant. Detective
                  Gay testified that the victim told him that he did not get a
                  good look at the second individual and did not feel like he could
                  identify him. However, he knew that the second individual was
                  very dark. (RR4: 170-172).



                                                    70
         (3). The accuracy of the witness's prior description.

                The initial and unwavering description of the attacker as compared
                to the applicant's description is clearly erroneous, and is acknowledged
                by the State Court-

         (4). The level of certainty.

                The victim asserted he was certain applicant is the attacker
                and it is apparent the impermissibly suggestive pre-trial tainted
                identification in court alleged a 'certainty' that should be then
                weighed against the obvious "uncertainty" of a teen-aqed liqht-
                skinned     black    male matching the applicant, who is a dark-skinned
                black male in his thirties and wears a beard and mustache.

         (5). The length of time.

                A full eight (8) months had elapsed from the time of the offense
                and applicant's tainted in-court identification. For a full eight
                (8) months, the victim, (based on the photo which depicted a
                light-skinned over exposed picture of applicant), had fixed in
                his mind that his attacker was a young, light-skinned black male.
                Even though the Detective was shiocked at the applicant's actual
               description and appearance which was opposite the description
               the victim shared with him shortly after the incident.

The   State    Courrt      clearly    erred    in    concluding the Neil v. Biggers factors
were satisfied. See Brown v. State, supra, at 101.
       Consequently,        the   State    Court's    decision   in denying the applicant's
relief      sought   was contrary to clearly established federal law, as determined
by the Supreme Court. Williams v. Taylor, 120 S.Ct. 1495 (2000); Neil v. Biggers,
supra; Manson v. Braithwaite, supra; Simmons v. U.S., supra, [citations ommitted].
       Clearly,      the   State     unreasonably applied the factors of Biggers, which
is    the   controlling     standard      of review, against constitutional violation of
the tainted       indent!fication      proceedings      against the applicant. Said ruling
and constitutional         error,    discussed       establishes a "strong probability" the
resulting     conviction     is     againt    one who is actually innocent of the charqed
offense, and that applicant, being a victim of irrepairable misidentification
is not the 'person' who committed the underlying offense which is the construct
of Schlup v. Delo. Consequently, this Honorable Court should grant an hearing
on the evidence presented with the findings of facts and conclusions of law in
the determination as to the principles of finality and comity "must yield to
the imperative of correcting a fundamentally unjust incarceration." The Court
will find that there is evidence in the record that clearly shows innocence.


                                                71
                                       GROUND FOR REVIEW NO.       12

THE    APPLICANT CONTENDS THAT THE STATE                  FAILED TO OBJECT TO THE COURT'S CHARGE
THEREBY      FAILED      TO    PRESERVE     ERROR     FORAPPELLATE REVIEW WHICH SUSTAINS THE
IN    VIOLATION       OF     APPLICANT'S      DUE PROCESS RIGHT OF LAW AND DUE COURSE OF LAW
RIGHTS AND DENIED HIM A            FAIR TRIAL.


ARGUMENT AND AUTHORITES:

A.   FACTS


        The applicant          avers    tha   the     hypotheticaliy correct jury chage it had
written was errornoues and that the State as well as the defense are given the
opportunity to object to its contents and when the State fails to object it is
a violation and the applicant is harmed because the hypothetical correct jury
charge is what the jury goes by to make their determination as to the way they
are to treat the case during deliberation.
B.   APPLICABLE LAW

       The     trial       court     was   required       to give accomplice-witness instruction
as to the witness Sonya Lee Holder after the guilt and innocence phase of the
trial and the trial court was obligated to instruct the jury about the present
prohibitions        of     Article     38.14 of the Texas Code of Criminal Procedures. See
Martinez v. State, 163 S.W.3d 92, 94-95 (Tex.App.-Amarillo 2005). As the opinion
and mandate was issued the State failed to file any motions for rehearing, or a
motion to recall mandate nor did the State in any way challenge the correctiveness
of the       ruling given as to the accomplice. "When time provisions have expired
without further appeal from the decision of the Court of Appeals, and mandate
has   been     issued        without    any motion        to recall having been filed, decision
of the Court of Appeqals is final and must be enforced. Texas rules of Appellate
Procedure, Rules 18, 51; Gonzales v. State, 904 S.W.2d 175 (Tex.App.-San Antonio
1995); Gainer v. State, 636 S.W.2d 15, 16 (Tex.App.-Corpus Christi 1982).
       At trial        the    State     was presented        with the hypothetical correct jury
charrge,      the     State did not object knowing that it was incorrect nor did they
request any special instructions be given. However, the applicant claims that
the courts charge provided the jury with an erroneous instruction. A party
"should      not    be permitted to waive, consent to, or neglect to complain about
an error at trial." Pirtle v. Gregory, 629 S.W.2d S.W.2d 919, 920 (Tex. 1982).
The State at trial failed to               object,    thus    preserve   this   issue that of the
Court's      Charge      provided      an erroneous instruction.         To preserve a complaint


                                                     72
for appellate review, a party must make a timely objection, request, or motion
with sufficient specifity to apprise the trial court of the complaint. T.R.A.P.
Rule 33.1(a); Saldano v. State, 70 S.W.3d 873, 886-87 (Tex.Crim.App.2002); See
Nolan v. State, 102 S.W.3d 231 (Tex.App.-Houston[14th Dist.]2003).
         In    the       State     of    Texas     rules require that parties object at trial in
order     to preserve error for review on appeal. Saldano, supra at 886; T.R.A.P.
33.1(a), as well as              under     the Texas             procedural rules, the failure to raise
a   complaint         on     appeal;      and     procedural rules state that any complaint to a
jury     charge is          waived unless specifically included in an objection. T.R.A.P.
33.1(a); Tex.R.Civ.P. Rule 274; In Re B.L.D., 113 S.W.3d 340, 349 (Tex-2003)
(Texas Rules on Preservation). Of                     the        three   rules, the State failed in each
and every way. Had this been the applicant, he would have been told "Appellant
did    not object, thus failed to preserve error for appellate review," the State
holds no different status as that of the applicant. In 1987, when the Legislature
amended       the     constitution         of    Texas they qave the State the right to appeal,
the    State        finally      attained       the     full      status as an appellant. See Ex Parte
Taylor, 36 S.W.3d 883, 886-87 (Tex.Crim.App.2001). The state has not cited and
no where can it be found anywhere in the appellant record or trial record that
the State raised the issue in the trial. Even if the State had preserved this
issue in trial, the State has waived error by failing to adequately brief it
on appeal. To present               an    issue     for      appelate review "the brief must contain
a   clear      and       concise argument           for      the contentions      made with appropriate
citations to authorities, and to the record. Tex.R.App.P. 38.1 (h).
        The State          did     not    present       a   sinqle arqument or      citation in support
of this issue. The State did not address any of the governing                            legal principle
or applied them to any of the facts of the case regarding this issue. See King
v. State, 17 S.W.3d 7, 23 (Tex.App.-Houston[14th Dist.] 2000, pet. ref'd). The
applicant       avers       that    simply       put,       the State, at trial failed to object to
object to the alleged error in the court's charge thereby failing to preserve
the error for appellate review, had in fact this                           had   been an error; the fact
remains       that    at trial no objection was made on the hypothetical correct jury
charge        so     that    applicant       or trial court could correct such. This fact and
others    denied         the     applicant       a fair trial because he could do nothing until
now, this issues was never brought up. The Texas Court of Criminal Appeals has
recognized         two     general       policies       for requiring specific objections. "First,


                                                            73
a pecific     objection        is   required   to inform the trial judqe of the basis of
the objection           and aafford him the opportunity to rule on it." In applicant's
case he was denied this opportunity. "Second, a specific objection is required
to afford opposing counsel an opportunity              to   remove   the objection or supply
other testimony." Again the applicant was denied the opportunity. Zillender v.
State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977).
         Objections promote         the prevention of errors and help the correction of
those errors. When valid objections are timely made and sustained, the parties
may have a lawful trial. It is quite easy to assume what has occured in the
applicants case for the failure of the State to make this objection. He was
denied    a   fair       ttrial.    A   statute   permits our appellate courts to consider
claims     that     an error in the courts charqe to the jury to which no objections
were made         and    was   so    grave an error as to deny a applicant a fair trial.
Tex.Code.Crim.Proc. Art. 36.19; Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.
1984). This complaint has happened in the applicant's case. A party must make
the trial court aware of the complaint timely and plainly, and obtain a rulinq.
State Dep't of Highways and Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.
1992). The State has clearly failed to do such, thus denied the applicant to a
fair trial. Applicants due process rights and due course rights of law to a
fair trial which were violated under the Fifth and Fourteenth Amendments of the
U.S. Constitution and Art. I §10, 19 of the Texas Constitution. Applicant then
request the reviewing court to hold an evidentiary hearinq and determine the
merits of the complaint with the findinqs of facts and conclusions of law and
if so found order a new trial or vacate the sentence.
C.   CONCLUSION

         The traditional        term    in   Texas Criminal Law that corresponds to "plain"
is "fundamental error." Art. 36.19 establishes the standard for fundamental
error in the court's charqe: "The judqment shall not be reversed                  unless it
appears from the record that the applicant has not had fair and impartial trial."
The Court's have paraphrased this statutory standard in other terms at different
times. If the applicant or the State had objected to the court's charqe, and it
was errornoues, the appellate court would have been required to apply the one
and only appropriate standard. The choice of the standard would have depended
on whether the error violated a riqht under the federal constitution, amonq
other thinqs. But since either side did not object ad preserve the issue for




                                                  74
appellate review, the appropriate standard is the statutory one for fundamental
error in the charqe. See Jimenez v. State, 32 S.W.3d 233, 235 (Tex.Crim.App.
2000).
                                    CONCLUSION TO MEMORANDUM

      The applicant       contends        that    he    has      no    excuse for the past handleinq
of    his    case   that was presented previously to the court's except that he had
no    scientific    workinq     knowledqe         of    law      and relied upon the common use of
jailhouse      lawyers    who   were      only     looking to make a quick dollar on someone
who had ignorance about the workings of the court system. Here is a concrete
area were someone who has a prima facie showinq of his unfair prosecution and
was hindered in every form from the courts to arque the correct issues that are
present within this memorandum and application. A evidentiary hearing is needed
here in order for the courts to extract correct and true justice just not any
hanqman mentalities from prosecutors lookinq for another notch in there qun
handle. In Black v. Collins, 962 F.2d 394 (5th Cir. 1995), cert denied, 504 U.S.
992 (19996), the Court discussed the requirement of an evidentiary hearinq. The
Court noted that if an exception to the presumption of correctness was even the
slightest, established, the same showinq                    would      entitle   the   applicant to an
evidentiary hearinq.
      The current rule that an applicant is entitled to an evidentiary hearinq
is if:

      (1) there is a factual dispute which, if resolved in his favor would then
             entitle him to relief, and
      (2) he did not recieve a full and fair hearing in State Court.
Bast v. Scott, 55 F.3d 996 (5th Cir. 1995).
      Many times, the need          for    an    evidentiary           hearinq   in the result of the
failure to fully develop the claim in State Court. In many cases, the applicant
may   obtain    additional      evidence         to support a claim, or may not have alleqed
all   the    available facts in the State applications. In Keeny v. Tamayo-Reyes,
504 U.S. 1, 112 S.Ct. 1715 (1992), the Court held that a cause and prejudice
test applies to the failure to develop the facts durinq a State Court proceedinq.
The Court will      conclude     that      the    applicant           is   entitled to a hearinq only
if he can     establish     cause    for     failinq        to    develop the facts and prejudice
for   not    allowinq     him   to present them in court. The applicant contends that
is done here in this application and               memorandum.

      In a    proceeding motivatted by an application for a Writ of Habeas Corpus




                                                       75
by     a    person        in        custody       pursuant     to a judqment of a State Court, then a
determination             of        a   factual        issue   made by a State Court shall be presented

to     be    correct. Applicant shall qhave the burden of rebuttinq the presumption
of     correctness             by       the    clear and convincinq evidence presented here in this
memorandum.              If    applicant           has     failed     to    develop the factual basis of the
claim       in    State         Court          proceedings,     the        Court shall not hold a evidentiary
hearing          on   the       claim,         unless      the applicant shows that a factual predicate
that       could      not       have          been previously discovered throuqh the exercise of due

diliqence, and the facts underlvinq the claim would be sufficient to establish
clear and convincing evidence that, but for the error of constitutionally large
maqnitude, no             reasonable             fact-finder        would have: found the accused quilty of
the underlying offense if not for the promptinqs of the State.
       With        the        facts       of     the     perjured     testimony knowinqly presented bv the
State, and failinq to correct it once it was shown by other testimony to have
been false and the defense counsel's failure listed in the complaint, and not

rulinq on actual innocence presents clear and convincing evidence needed to
discredit the presumption of correctness by the State Court and therefore, an
evidentiary hearinq is warranted.


                                                             PRAYER

       WHEREFORE, PREMISES CONSIDERED, applicant humbly prays that this Honorable
Court will grant the Motion for Successive Petition and allow him the one and
only opportunity to prove that he has the evidence in this application and in
the memorandum to show that he has standinq to be qranted relief and that a
evidentiary hearinq is the only way that he can proceed to show his innocence.



                                                                              ^.ictfully Submitted,

                                                                           Roberc-aee Brown #927914
                                                                           TDCJ-CID, Applicant Pro-Se
                                                                           Eastham Unit
                                                                           2665 Prison Road #1
                                                                           Lovelady, Texas   75851


                                                 CERTIFICATE OF SERVICE

       I, Robert Lee Brown, applicant pro-se, hereby certify that the forqoinq
information is true and correct, and a copy is being mailed to the District




                                                               7-6
Court Clerk of Travis County at P.O. Box 1748, Austin, TX   78767.
Signed on this^g day of /V\/X U         / 2009-

                                                                lAtfrsy}
                                                        Jrown #927915
                                             Applicant Pro-Se
                                             TDCJ-CID
                                             Eastham Unit
                                             2665 Prison Road #1
                                             Lovelady, Texas    75851




                                      77
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