i^^^-o^ Michael Ibenyenwa Robertson Unit # 1638105 12071 FM 3522 Abilene/ TX. 79601 01.20.15 Clerk of the Court: Court of Criminal Appeals P.O. Box 12308 Austin, TX 78711 re: filing of the enclosed request for the Court Upon It's Own Motion to rehear their denial of the writ of habeas corpus that was transmitted up from the Criminal District Court No. 3 of Tarrant County, Texas, in trial court cause number C-3-010068-1149004-A. Dear Clerk: Please file the enclosed request. Applicant-movant only has a matter of days left before the 15-day ruling for filing request for reharing is over. Thank you. Sincerely, Michael cc Cin7 97 vvr IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS EX PARTE MICHAEL IBENYENWA, § FROM THE CRIMINAL DISTRICT APPLICANT-MOVANT, COURT NO. 3, TARRANTCO. TX § VS. § § TRIAL COURT' CAUSE NUMBER THE STATE OF TEXAS, RESPONDENT. § C-3-010068-1149004-A. requesting the court UPON IT'S OWN MOTION TO REHEAR THE DENIAL TO THE HONORABLE JUDGES: COMES NOW, the above named applicant-movant, acting in his own behalf, respectfully requesting the court to rehear their de nial of applicant's writ of habeas corpus upon the Court's Own Motion. IN SUPPORT THEREOF, applicant-movant would show the Court: I JURISDICTION THIS COURT'S JURISDICTION is retain in view of the Rules that grant ap^plicant-movant 15-days to file morion for rehearing upon the Court's own motion and their recent denial was issued 8HH on the 14th day of January, 2015; and received by applicant-movanten January 20, 2015. This rerquest for reharing upon the Court's own motion was filed/mailed this same day of January 20, 2015. -1- II REASONS FOR GRANTING A REHEARING [1] This request is being made in good faith because applicant- movant knows that as a mateer of fact and law that fis Constitution al Claims are meritorious. In that, a. Jurists of reason have already found that an attack on the Constitutionality of a Statute ought to be raised on appeal regard less of whether or not defense counsel lodged, objection(s) or mo- tion(s). See Karenev-v-State, 281 SW.3d 428, 432-434 (Tex-Crim.App. 2009) [A facial challenge to the Copnstitutionality iof a Statute is a forfeitable right, that is, it may be lost by the "failure to insist upon it by objection, request, motion, or some other bshavior."]. In which Karenev was a plurality opinion of 5 -to- 4- In other words, four Judges dissented with Judge Cochran writing extensively on the issue that the requirement that a facialX^ challenge to a Statute be preserved is not absolute, and a defendant may raise for the first time on appeal an unpreserved challenge to the Constitutionality of a Statute. Therefore, this Court ought to revisit Karenev when an appli cant raises said issue [as applicnat-movant has] on habeas corpus, in view of no court to date having determined whether a Statute's Constitutionality not preserved at trial or on motion for new trial and barred from being addressed on appeal due to not trial court preservation has right to raise said on habeas corpus. b. Likewise, since the trial court did not get opportunity to rule on the Constitutionality of § 21.02, Texas Penal Code offense and the appellate court ruled applicnat was barred from doing so because counsel did not preserve the issue; ought not applicnat on first habeas corpus be able to raise ineffective assistance of counsel for failing the lodge objection, request, motion or some toher type attack on the Constitutionality of said statute ? In light of the Karenev-v-State, supra, case being ruled upon a year prior to applicant-movant's trial? -2- c Thus, the issue of whether the Continuous Sexual Abuse Stat ue embodied in § 21.02 of the Texas Penal Code is unconstitutional on it's face and as applied under the State and Federal Constitut ion because it eliminates unanimity has not been addressed by this Court on habeas corpus. Whether it be in/of itself? or whether counsel's failure to lodge some objection, request, motion, etc. is deficient conduct? In view of the four Judges in Karenev who dissented and the five Judges who ruled it had to be preserved at trial or on motion for nea trial but counsel failed,to do so in the instant case? ) Defense counsel's self-serving position thatihe had no val id reason to lodge said to preserve the constitutonality isse be cause the law on the matter was equivocal is invalid because both the karenev case and the Ricl)ardson-v-United States, 526 U-S. 813, 119 S.Ct. 1707,. 143 L.Ed.2d 985 (1999), were publsihed opinions readily available to defense counsel. But apparently he was not cur rent and/or did not research the law on this issue in view of the Texas progeny mandating unamimity from ajury in reaching it's de- cions at trial. It is incumbent upon counsel to know the law as it applies to the facts of the instant case. Strickland-v-Washington 466 U.S. 668 (1984). [2] Each of applicant-movant's other grounds of error within the framework of the proposition relied within his memorandum of law are meritorious and worthy of this Court's rehearing thHem- CONCLUSION APPLICANT-MOVANT PARYS THIS Honorable Court will GRANT ^this request for the Court upon it's own motion to rehear their decision to deny and revisit the habeas issues raised in the writ. Thank you. /' Respectfully requested, MICHAEL IBENYENWA: M'P'LICANT-MOVANT -3- VERIFICATION I, Michael Ibenyenwa, applicnat-movant in the foregoing re quest for the Court Upon It's Own Motion to Rehear their denial of the writ of habeas corpus does hereby verify under penalty of per jury that the facts contained in said request are true. I attest to this by affixing my signature below: > ABItENE, TX. 79601 cc -4- CERTIFICATE OF SERVICE I, Michael Ibenyenwa, applicant-movant in the foregoing request for the Texas Court of Criminsal Appeals upon it's own motion to rehear their denial of the writ of habeas corpus. I Certify that true aag&m of said request were placed in the Robertson Unit's mail box addres sed to the Clerk of the Court of Criminal Appeals on the 20th DAY OP JANUARY 2015- I attest to this by affixing my signature bel«e; •SitoA#RE. MtCHABL/IBENYENWA ^ ROBERTSON UNIT ? 1638105 ;\ 12071 PH 3522 i ABILENE, TX. 79601 •{ cc *»5-. niehael Ibenyenwa Robertson Unit I 1638105 12071 P» 3522 Abilene, TX. 79601 01.20.15 Clerk of the Courts Court of Criminal Appeals P.O. Box 12308 Austin, TX 78711 res filing of the enclosed request for the Court Upon It's Own Motion to rehear their denial of'the writ of habeas corpus that was transmitted up from the Criminal District Court So. 3 of Tarrant County/ Texas, in trial court cause number C-3-010068-1149004-A. Dear Clerk: Please file the enclosed request* Applleant~m®vaat only has a matter of days left before the.IS^dayrulingfor filing request toff raiaurciag 'is "ov'4e^" TSanik "you. Sincerely, Michael cc m TBS court op crihxsal appeals 8x parts bxcba8l ibes3ke$ka, $ pros tbs criminal district APPLXCANT-MOV&NTf COURT NO. 3, TARRMfCO. TX I vs.- y y • § TRIAL COURT CAUSE gftMBBR TBS STATS OP TEXAS, RESPONDENT. § C-3-G10QS8-11490Q4-A. requesting the court UPON IT'S GHS MOTION TO RSBS&R TBB DENIAL TO TBS HONORABLE JUDGES. 'own behalf,' respectfully requesting the court to rehear' their '.'de nial of applicant's writ of habeas corpus upon the court's Own Motion. IN SUPPORT TBERSOP, nppiicant~mo?aat would show the Court: 'I i JURISDICTION i THIS COURT'S JURISDICTION is retain in view of the Rules that grant ap^plicant-sovant 15-days to file morion for rehearing upon the Court's own motion and their recent denial was issued ®m on the 14th day of January, 2015i and received by, applicant-®@vantca- January 20, 2015. This rerquest for reharing upon the Court*s own motion was filed/mailed this same day of January 20, 2015, IS GRANTING A RSBSARENG (1J This request is being «ade in good faith because applicant* siovane knows that a® a @ateer of fact and law tliatM® Constitution* al claims are meritorious. In that* a. Jurists of reason have already found that en attack on the Constitutionality of a Statute ought to be raised on appeal regard- leas o£ whether or not defense counsel lodged, objoe&ioaCa) or me~ tloa(s). See 8aeonev-w-State# 281 sis.3d 423, 432-434 (Tex*Crl8}.&pp. 2009) (a facial challenge to the Constitutionality of a Statute Is a forfeitable right, that is, it may be lost of tb® "failure to insist upon it by objection, request, (notion* or s©®e ©tfter mmfae**h In which Karenev was a plurality opinion ©£ 5.-to- 4. In ©thee wasSo, four Judges dissented with Judge Cochran writing extensively on the issue that the requirement that a fecials*, challenge to a Statute be preserved is not absolute, and a' defendant aay'raiaa ifoe ^hotfassfc tisa ea appeal an onpreeegved- cuallen^e to the Constitutionality of a Statute.' ./ Therefore, this Court ought to revisit Sareaev when en Appli cant raises said iaaua (as applicnat~stovan& has! ®n habeas corpus, la vi©tt of no court to data h&vlne, detemlaed whether'a Statute*® Constitutionality not preserved at trial or on motion for new trial and barred from being addressed on appeal due to not trial court preservation has right to raiso said on habeas ©©cpsa. b. Llfte»lse« since the trial mmk did not «** opportunity to rule on the Constitutionality of § 21*02, Texas Penal Code offense' end the appellate court ruled applicnat was barred from doing so because counsel did not preserve the'Issues ought not applicnat on first habeas corpua be able to raise Ineffractiv© asala&ance of counsel for tailing the lodge objection* eectues&f fiction m acme toaar type attach on fctte Constitutionality of said statute ? In light of the &areaev-v-Stats» supra, esse being ruled upon a year prior to applleaat-Giovaat'a trial? «>2*> c. face, the Issue of whether the Continuous Sexual Abuaa Stat ue anbodled In « 21.02 of the Texas Penal Code la unconatltotional on It*a face and as applied under the State and Padaral Constitut ion because it ellalnetes unanimity has not'been ad&r-eaaad by this Court on habeas corpus. Mather it 'be la/of itself?, or whether counsel's failure to lodge so@e objection, request* action* etc* la deficient conduct? la vlev of the four Judges in Karenev who dissented and the five Judges who ruled it bad to be preserved at trial or on station far aae trial but counsel failed to do bo in the instant case? r Defease coaaaei'a aali-aarvinf.position t&at he had no val id reaaon to lodge said to preserve the constItutonaiity iaa© bo- cauae the lawon th® aatte-r wan equivocal Is invalid because both the fearenev case and the Ric^ardaoa-v-United States* $26 51.S. 313* 119 S.Ct- 1707, 143 L.@S«ad 98$ (1$99)* ware poblelhad opinions readily available-to defense counsel* sat apparently be «at» not ear* rent aaa/as did »at cMsiieca e^ iw ., be preserved' is. not abooluti^:',v.««