PD-1386-14
STATE OF TEXAS COURT OF CRIMINAL APPEALS
FRDWI^/Vfey,/»S0URT 0F flPPEASL
COURT OF
ZACHARIAH HARVEY
M 28 2015 174th DISTRICT COURT OF
V
HARRIS COUNTY. TEXAS
STATE OF TEXAS
CAUSE N0:1_3JJLZ£5
Abel Acoata, Clerk APPEAL NO: 14-1 3-nn?7ir,F
PETITION FOR DISCRETIONARY REVIEU PD# 1386-14
' l FIROPi;: DENIAL 1-12-15 COURT OF APPEALS-
14th DISTRICT
TO THE HONORABLE COURT:
COMES NOW. ZACHARIAH HflRVFY. whom IS INCARCERATED PROSE and IS IN
DIGENT. I HAVE NO MONEY, MATERIAL WEALTH, OR INCOME FROM ANY SOUP
RCE TO PAY FEES COSTS AND OR ATTORNEY. SPFl Iman B19 S.W.2D406 TEX
CRIM CODE PF PROCEDURE 145.TEX RULE OFAPPELLATE PROCEDURE 20 11
CITE: HTRRFNS 257 S.W. 3d 634.
THIS CAUSE IS TIMELY ON INEFFECTIVE ASSISTANCE OF COUNSEL/ON
APPEAL. FAILS TO CITE LAWS THAT APPLY TO MY CASE. FAILED TO INVE
STIGATE OR EVEN CITE OUT OF STATE LAW FROM ARKANSAS. CLAIMING IT
WAS FROM CRIMINAL COURT OF APPEALS. ON AND ON.CH£922F2d 52B; SHX-
LLQ 913S.W.2d 507 TOBIAS BB4 S.W.2d 571 TO ALLOW PROSE LITIGATION
lilIfiriTNS 123 S.Ct 2527 CAN BRING NWE THEORIES IN THE INTEREST OF
JUSTICE. RPCHEILE 791 S.W.2d 121 AND TO PROSE REQUIRED ON PDR.
PETERSON B49 S.W.2d 370ART. 1.051 FOR HEARINGS. FARETTA 95 S.Ct
2525. I.IATNRTKHt 102 S. Ct 1300.
ON JULY 13. 2010. MY WIFE KICKED IN MY BEADROOM DDRE. AND PHYSICA
LLY ASSAULTED ME BY HITTING ME NUMEROUS TIMES ABOUT THE FACE AND
UPPER TORSO. I MANANAGE TO GET OUT OF THE BEADROOM TO ESTABLISH
DISTANCE BETWEEN MY WIFE AND SELF. I THEN WENT INTO THE KITCHEN
TO PUT THE DISHES AND UTENSILS AWAY. I TURNED BACK TO SEE MY WIFE
COMMING IN A DOWNWARD MOTION WITH A KNIFE IN HER HAND. I BLOCKED
HER ADVANCE. AND STABED HER ONE TIME. SPONTANEOUSLY.I"..WAS. INMFEAR
FOR MY LIFE. SEE PC.6.03 ALONZO S§8 S.W.3d 77B JUSTIFICATION. THE
STATE DID NOT PROVIDE ITS CASE"INTENT TO KILL BEYOND A REASONABLE
DOUBT" COOK BB4 S.W.2d 4B5.
en
ERROR #1
THE OPPINION OF THE 14th CR NO. 14-1 3-00774 ON AUGUST 26. 2014
FROM THE TRIAL CASE #1311763 BY CHRISTOPHER DAMSON & McCALLY. WAS
GLOBAL CONCLUSSORY. ABUSE OF DISCRETION NOT SUPPORTED BY THE REC
ORD NO CITES. THE ISSUES IN NAME & NUMBER POINT TO THE TRIAL THAT
WAS NEITHER FAIR AND IMPARTIAL. THEY ALLOWED FABRICATION OF THE
TRUE PROCEEDINGS. NO CITINGS WHAT SO EVER. I COULDNT TURN THIS
IN IF I WERE AN ATTORNEY. ABUSE OF DISCRETION FOR THE HONORABLE
COURT OF APPEALS. TO USE THE STATE VERSON OF PROCEEDINGS. SEE
BACK GROUND SUFFICIENCY OF THE EVIDENCE WILL NOT SUSTAIN THE CON
VICTION. IN A SELF DEFENSE CASE WHERE THE ALLEDGE VICTIUM PAST IS
THE BASIS OF THE AFFIRMATIVE DEFENSE OF SELD DEFENSE. THE JURY
MUST BE PRESENT DURING THE TESTIMONY OF ALL THE WITNESSES CALLED
TO VERIFY THE VIOLENT PAST THAT CREATED IN THE MIND OFlFTfflEEDEFEN-
DANT THAT HE WAS IN IMINENT DANGER OR DEATH. AND THAT HIS REACT
ION WAS JUSTIFIED. THIS DID NOT OCCURE. AZARIA HARVEY "DAUGHTER"
TESTIFIED BEFORE THE JURY AND IT WAS LIMITED BY PRE-TRIAL MOTTON
IN LIMINE. BY STATE AZARIAH TESTIFIED THE BEST SHE COULD UNDER W\
SAID MOTION. BUT WAS NOT ALLOWED TO TESTIFY BEFORE THE JURY UND
ER SAID MOTION. BUT WAS NOT ALLOWED TO ELABORATE THOROUGHLY AGA
IN UNDER SAID MOTION. NON OF THE OTHER FOUR WHICH NEGATES THE MAN
-DITORY DUTY OF COURT IN A FAIR AND IMPARTIAL TRIAL. ON THE SUFF
ICIENCY OF THE EVIDENCE OF SELF DEFENSE. THE JURY MUST BE PRESENT
AND WAS NOT. WHO ARE THE WITNESS THAT GAVE TESTIMONY THAT THE
SAME AS TRIAL COURT EXCLUDED? (SEE CUMULATIVE Pg.14) ABSOLLITELY
NO EVIDENCE THAT THE DEFENDANT STABBED THE DECEDANT TWICE. THIS
IS TOTALLY FABRICATED. I REQUIRE AN EXPERT FORENSIC ^SCIENTIST TO
REVIEW THE AUTOPSY AND ALL MEDICAL EXAMINER THAT ACTUALLY PERFOR
MED THE AUTOPSY DID NOT TESTIFY. THE OPINION OF THIS COURT IS RIM
D.DIEB AND BIASED AGAINST THE DEFENDANT. THEIE IS EVIDENCE THAT
THE ALLEFED VICTIM WAS IN A VIOLENT RAGE THAT WE WERE ARGUING. AN
THAT I RETREATED FROM MY BEADROOM TO THE KITCHEN. BUT SOME HOW I
AM THE VIOLENT ONE. WHICH IS NOT RATIONAL. OBVIOUSLY HER INJURIES
CAME WHEN SHE FELL. AND WHEN SHE KICKED DOWN THE DOOR THE PHYSIC^
AL EVIDENCE IS CONSISTENT WITH THE CLAIM OF SELF DEFENSE. WHICH
IS AN AFFIRMATIVE DEFENSE.
C2.1
THE JURY WAS ENTITLED TO INFER THAT THE DECEDENT HAD HER ARMS
RAISED TO SHOW APPELLANT. SHE WAS HOLDING A KNIFE. AND TRIED TO
STAB ME. SHE HAD NO DEFENSIVE WOUNDS. THE JURY WAS NOT FREE TO
TO HEAR THE TESTIMONY OF EXCULPATORY WITNESSES THE STANDARD OF
REVIEW ON SUFFICIENCY OF EVIDENCE ON SELF DEFENSE. WHICH IS AN
AFFIRMATIVE DEFENSE CASE CITED BY THE COUTY OF APPEALS IS CLEARY
ERRONEOUS CONTARARY TO LAW. AND THE ABUSE' OF DISCRETION AS EXPLA
INED ABOVE.
THE STATE HAS THE ULTIMATE BURDEN OF PROOF WHEN CONFRONTED
WITH A SECTION 2.03 AND 2.04 DEFENSE. THE STATE BURDEN IS PROV
ING IT'S CASE BEYOND A REASONABLE DOUBT. THEREFORE. WE HOLD THAT
WHEN A DEFENDANT CHALLENGES .THE FACTUAL SUFFICIENCY OF THE REJE
CTION OF A DEFENSE. THE REVIEWING COURT REVIEWS ALL OF THE EVIDEr-
NCE IN A NEUTRALLIGHT AND ASKS WETHER THE STATE EVIDENCE TAKEN
ALONE IS TOO WEAK TO SUPPORT THE FINDING. AND WEATHER THE FINDING
OF GUILT WAS CONTARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE
AS TO BE CLEARY WRONG AND UNJUST.THAT A RATIONAL FACT FINDER
C'Ou'lD DETERMINE THAT THE APPELLANT USED DEADLY FORCE WHEN AND TO
THE DEGREE HE REASONABLE BELIVED FORCE WAS IMMEDIATELY NECESSARY
TO PROTECT HIMSELF.
IN THIS CASE WHERE THE ALLEDGED VICTIM USE ATTEMPTED TO USE
UNLAWFUL DEADLY FORCE THAT IS ALL THE LAW REQUIRES TO RAISE THE
ISSUE OF SELF DEFENSE. THIS WOULD ELIMINATE THE ACCUSATION THAT I
MADE A SELF-SERVING SELF DEFENSE. CLAIM. 911 TAPES OF EMERGENCY
PHONE CALL ARE BASED ON HEARSY. NOT STATEMENT OF FACT PER5E: BROWN
355 F3d B2; CRAWFORD 124 S.Ct.1356. THEREBY NOT TRUST WORTHY OF
PRIMARY EVIDENCE. THE CRIME SCEN EVIDENCE IS THE PRIMARY EVIDENCE
WHICH IS NOT SELF SERVING CREDIBILITY OF 911 CALLS CITE PENAL COD
9.31-9.32. DUE TO THE ILLEGAL IMPLEMENTATION OF MOTION IN LINE.
THE JURY WAS NOT ALLOWED TO HEAR FROM FOUR OF THE CHARACTER WIT-
ness who were not allowed to give sworn testimony before the jupy
THE PANEL STATES THE JURY IS ENTITLED TO DISBELIEVE THE STATEMENT
AND APPARENTLY THE EVIDENCE FROM THE CRIME SCENE WHICH IS 'iPRJUBEL-
BH£LXHA!CDl§SAAC0NEfcHSQSWL§TSEEMEFJ!R5 it&HJCRlIS QSREreiABCEIDffND (5ISIA
GttEaREVIQEAIIDQN. ..,: ,,. _...••.""
T31
THE GRANTING OF THE MOTION IN LIMINE WAS AN ABUSE OF DISCRE
TION. MISAPPLIED DUE TO THE FACT THAT I HAVE THE RIGHT TO ASSERT
AN AFFIRMATIVE DEFENSE UNDER THE CONSTITUTION OF THE UNITED STATE
RHAMRFRS 93 S.G. 103B. SELF DEFENSE IS BASED TOTALLY UPON iilETHEF:
JURYS CONSIDERATION OF THE ELEMENT WHEN PROPERLY INSTRUCTED. TO u
TO DETERMINE THE GUILT INNDCENCE OF THE DEFENDENTBASED ON THE VIC
-TIMS VIOLENT HISTORY T0RRE5V. STATE 117 s.w.3d B91. IN ADDITION
THE STATE HAS A DUTY TO SEE THAT JUSTICE IS DONE AND NOT TO CONV
ICT AND CAN NOT SECRETE WITNESSES. NOR EVIIDENCE THAT WOULD YiNEG-
ATE THE CONVICTION. ART 2.01 C.C.P MITCHEL 977 S.W.2d 575; BR.RRFR
55 S.Ct 629; 5MTTH 205 F3d 1045. MOTION IN LIMINE. HFRNflNnF7 767
S.W.2d 903-4 (4RR-121). T.R.E. 405 IN FACT THE STATE HAS VIOLATED
IT"S OWN MOTION IN LIMINE. BY PROVIDING MY CASE ON APPEAL SEE SEE
STATE BRIEF Pg's 14-21 WHICH IS REVIEWED BY THE APPELLATE COURT
AND PERSERVED IN ADDITION VIOLATEB/lRRAnV B3 S.Ct 1194. DO NOT RE
QUIRE PRESERVATION SAMCHF7 120 S.W.3d 359 THE MOTION IN LIMINE
EFFECTIVELY SHIFTED THE BURDEN OF PROOF FROM THE STATE TO THE DE
FENDANT THAT I HAD TO PROVE THERE WAS NO MALICE TO MEET IN STAB
BING MY WIFE. Mill I anfv 9BS.Ct 1881. TO PUT THE KNIFE IN MY HAND
AND OUT OF HERS. WHICH IS SPECULATION AND NOT THE TRUTH AI nN7n
353 S.W.3d 7BB P.C.2.03. DEFENDANT DID NOT THEN HAVE TO RETREAT.
HTNnRHTP 9n S.._C.t 1 068.. HERE AGIN THE JURY WAS N_OJ. ALLOWED TO HEAR
MY AFFIRMATIVE DEFENSE OF FACT! THAT THE ALLEGED VICTIUM WAS A VA
VIOLENT PERSON. SO I HAD TO RESPOND TO HER ATTACK IN A WAY THAT h!
WAS SELF DEFENSE. I WAS IN FEAR OF MY LIFE. I PROVED SELF DEFENSE
THAT CAN"T BE DISPROVED DUE TO THE FACT THERE IS INSUFFICIENT EVI
-DENCE. THAT THE INCIDENT DID NOT OCCURE AS I SAID IN FACT THERE
WERE WITNESSES THAT SUPPORT MY SELF DEFENSE CLAIM. AND THE STATE
USED KNOWING PERJURED TESTIMONY BY A SUPERVISOR OF THE MEDICAL
EXAMINERS OFFICE. ALLOWED ;STAB WOUND BEING TWICE. WHILE THE PHY
SICAL EVIDENCE WILL SHOW ONLY ONE WOUND ACTUALLY CAUSED DEATH OR
INFLICTS. THE STATE DID NOT DISPROVE MY CLAIM OF SELF DEFENSE BE-
YOUND A REASONABLE DOUBT. SAXTnN B04 S.W.2d 910.13.16. WERE OVER
RULED BY MFRA7 ,,785 S.W.2d 146. DUE TO CITES TO VAN miTtUFR 709
S.W.2d 178 STATE HAS NOT DISPROVED THAT I DIO .NOT :ACT.I6T SELF
DEFENSE.
C41
SEE NEUTRAL LIGHR NOT LIGHT MOST FAVORABLE TO THE PROSECUTION
7111 TANffq7 S.W.3d 595 AND SAXTON HAS NOTVALUE FOR REVIEW. PENAL
CODE 2.04. STATE MUST DISPROVE NOT REFUTE BEYOND A REASONABLE II
DOUBT REAVI5 970 S.W.2d 115. TORRES 117 S.W.3d 891. THE REACHING
OF GUILTY VERDICT MUST BE "SET ASIDE" DUE TO THE FACT THEREAWAS'iA
BHBONSTITOTIONALTUNDERSTANDIiNG. OF THE LAW IN REACHING A GUILTY
VERDICT. SEE ABOVE FR A M CT R 105 S.Ct 1965.76 THE STATE MUST PROVE
BEYOND A REASONABLE DOUBT THAT I INTENDED TO KILL. JOHNSON 271 S.
W.3d 359. THAT THE JURY INSTRUCT IN THIS SITUATION IN KRfl.ir.nl/Tr. !',
351 S.W. 3d 523 . HAVING A KNIFE IS NOT INTENT A KNIFE IS NOT A
DEADLY WEAPON PER SE 1.07 & 9.31 PENAL CODE CADWELL 288 F.3d 838;
BUENO 996 S.W.2d 406. THE EXCLUSION OF THE TESTIMONIES FROM THE
WITNESSES THAT IS NOT MULTIPIE WITNESSES TO THE SAME SITUATION.
BUT INSTED MULTIPLE WITNESSES NOT CUMULATIVE TO MULTIPLE INSTANCE
INVOLVING HER VIOLENT CHARACTER. AND HER PERPENSITY TO VIOLENCE :
SEE T.R.C. & F.D.E. 402-04 3B.36 T.C.C.P. T.R.A.P. 44.2. JURY ::'.
EXCLUSIVE OF TRIER FACT.
MnMTnnMFRV 810 S.W.2d 372. MflRTTM 107 S.Ct 1099 PROPER JURY
INSTRUCT ON SELF DEFENSE . HARM ANALYSIS A!MAND7 686 S.W.2d 157
T.C.C.P. ART 38 SflNnRTfiRnM 99 S.Ct. 2450; BARRFRA 10 S.W.3d 743.
INNEFFECTIVE ASSISTANCE OF COUNSEL ON JURY INSTRUCT RFAGAN 365 F3
d 616.;. FAILURE TO OBJECT .INDICTMENT YOUNG 356 F.. 3d. 616. CONTRARY..
TO AND OR OBJECTIVELY UNREASONABLE. RMTTH 417 F3.d 438 (KNOWINGLY
ACTUAL INNOCENCE CAN BE BROUGHT FIRST ON APPEAL. AND DUE INEFFECt
TIVE ASSISTANCE OF COUNSEL WAS NOT BROUGHT MURRAY 106 S.Ct. 2639.
THE EXTERNAL IMPEDIMENT WAS THE MOTION IN LIMINC USE BY THE STATE
WHICH WAS USED TO DEPRIVE ME OF MY CDNSTITUTIONSL RIGHT TO BE •[..
HEARD BY THE JURY WHICH DETERMINES THE CREDIBILITY OF THE WITNESS
9ES.I HAVE A RIGHT TO BRING ABOUT AN AFFIRMATIVE DEFENSE BASED ON
U.S.125 S.Ct 738 HOOKER , THE CHARACTER OF THE VICTIM THAT MUST
BE HEARD BY THE JURY AND WAS NOT (4 RR-121.) THIS BRADY VIOLATION
WAS DEADIBANG WINNER. AND WAS NOT BROUGHT ON APPEAL OR OBJECTED
AT TRIAL. THE EXCULPATORY EVIDENCE WAS MATERIAL AND IMPROPERLY
WITH HELD FROM THE JURY VIOLATED DUE PROCESS BM&3 54 F3d 1508.
SEE-ALSO Hfir.MFR BB5 S.W. 2d 3B9 947 S.W.2d 202; TRFWTNO
135 S.Ct 574; Mr.nilTGHFN 133R.Ct 1924. THERE HAS BEEN A FUNDAMEN
TAL MISCARRIAGE OF JUSTICE IN THE CONVICTION OF THIS APPELLANT
WHO IS ACTUALLY INNOCENT.
r
#14
Harvey, Zachariah
Combined Opinion