SMITHWICK, ROY LOUIS Jr.

167/3672 -2§ ROY L. SMITHWICK JR. TDCJ#622814 McConnell 3001 S. Emily Dr. Beeville, Tx. 78102 Court of Criminal Appeals Attn: Clerk Capitol Station PtO. Box 12308 Austin, Txf 787ll RE: Objection Filing Case# 29,892-21 Dear,Clerk/ Enclosed please find-a "Objection " to the Trial Courts denial to Address the recent Apolication for Habeas Corpus Under Art. ll.O73 which a new legal baises for my filing. Will you please file;~ my§ Objection for the Appeals court to review with my Application. Thank you for your time and attention. ROY LOUIS SMITHWICK JR. /W> § RECE|VED lN couRT oF chMlNAL APPEALS MAR 19 2015 Ab€l ACOS’ia, Cle¥k IN THE COURT Of CRIMINAL APPEALS of TExAs § ` . Ex PARTE, _ § CCA# 29,392-21 RoY~LoUIS sMITHWICK JR. § APPLICANT § 49TH DISTRICT couRT -» 1 § TRIAL #1992CRA00041-01(T) § oBJEcTION To the .Justices of the Court of Criminal Appeals`comes now ROY§ LOUIS SMITHWTCK JR., Pro~Se, Applicant in the above styled and numberd_ cause to file this OBJECTION to the Trial Courts denial to address a Eirst Application for Habeas Corpus Under Art. 11.073 which dis New Law Previously unavailablefor a subsequent Application. In support please find the following: I. ABUSE CF WRIT CITING SHOULD BE SET ASIDE The Court of Criminal Appeals ordered the Clerk not to acceptll any future filing from Smithwick Under Art, ll.07 unless it. appeared that Section 4(a) was overcome for a succesive This application is being presented for the first time Under CCP Art.- 11.073. This New Legal Bais was previously unavailable for the claims consideration in a subseqent Application. Therefore the requirements for Sec 4 (a)(l) "Legal bais" previously being unavailable is met for a review of this Application, _ ,’-=§-~` Further, this is Smithwick's first Application citing a "Miscariage of Justice" claim on the related Scientific testimony> _ l. The Records.available to Smithwick show the Trial Prosecutor had Pre-Trial Knowledge of the offered trial testimony being false and Unrel§able Scientifically yet still used it to prove his case beyond a reasonable Doubt; Prosecutor:"it is going to boil down to scientific evidence ... that will prove beyond all doubt this man killed..."(Trial RR. Vol.I P.llS-ll9 L.23-25 & 1>2) Also before Smithwick alleged this :claim he filed a Administrative complaint with the District Attorney's Office to investigate the Criminal Misconduct of the Trial Prosecutor. No response or investigation was made to the claims. Smithwick 'then' requested ithe' Scientific ‘Records Used to prepare for Trial that would have addressed the claims; The DA's Office refused to make available the-Documents; Despite the recent events of enacting the Michael Morton Act that resulted from a Prosecutor withholding Reports and_ the Duties Outlined in CCP § 2;01 that require the release of evi- dence that may be exculpratory or impeaching the DA's Office refused to make available any record that may prove Prosecutoral criminal misconduct. Smithwick therefore has strong reasons and information avail- able to make the claim of a "MISCARIAGE OF JUSTICE" due to the trial prosecutor actions before, during and after Trial. WhereforetheAbuse of writ citing should be set aside and the foregoing case be filed and addressed. 2. c_ II. N`EW LAW (*l'l'.O"/3) `IN REL`ATION TO TH'IS C:ASE On 9/1/2013 Legislation enacted Criminal Codes and Procedure Art. ll.O73 that applies to scientific evidence that was relied upon by the State and is now discredited. In Ex Parte Neal Hampton Robbins No.WR-73-484-02 the Court of Criminal Appeals Granted Relief on errors Re-Submitted Under the New Law CCP.' 11.073. Judge Cochran's concurring Opinion, Joined by Judges Price and Johnson, noted that the State's Arguee ment in Robbins was: n "that the plian language and legislative history of Art. § ll.073 'demonstrates' a legislative intent to provide a remedy when there is a generally accepted Scientific advance or break throught in a discipline of forensic science,' rather then a change in the State's scientific expert's opinion." ~ At the time of Smithwick's trial. the Generally accepted scientific advance of DNA testing was available at least two years prior to Smithwick's Trial. Yet, the Trial Prosecutor knowingly and intentionally relied upon Unreliable and Obsolete (Old Science) "Enzyme Testing to show Smithwick committed the Offense.' The scientifically advanced testing was not utilized inten- tionally which deprived` Smithwick's Constitutional right to a fair trial . Judge Cochran also traced the history of CP. Art- § 11.073, noting that: ` "by 2009, The Texas Legislature, at the urging of the Ibnnocence Project of Texas, begain reacting to the problems of prior convic- tions based on bad Scientific evidence." 4 3 . d Judge Cocharn stated in finding relief appropriate in the Robbins case: “regardless of whether a conviction is based on an unreliable field of science or unreliable scientific testimony, the ' result is the same: an unreliable verdict that can not stand the test of time. It is built upon the shifiting sands of "Junk" science or a "Junk" scientist, and it is the purpose of Art. § ll.O73 to provide a statutory mechanism for relief and- a retrial based upon"good’ science and 'good' scientific testimony" ` Judge Johnson’s concurring opinion noted the following: "the various positions on statutory interpretation seem to agree that the legislative history indicates that the intent of this statute is to provide relief to those who were convicted on science or scientific methodology that is now known to be unsound.“ "whether debunked' or refined' for increased accuracy,changes in in scientific knowledge in general and therefor changes in scientific testimony by_individuals¢ must'be acknowledge and addressed." Smithwick has provided a Affidavit and a listing of what the Ballist report would have contained. This shows that the trial prosecutor EXpert witness falsified his testimony (debunked) but also shows that the Trial Prosecutor would have known the Trial testimony was going to be false. This further shows that Smithwick has met the requirements of Art. ll.O73. (Testimony Discredited) In the Recorders records the Trial Prosecutors own words state he relied on scientific testimony to prove his case beyond a reasonable doubt. This also demonstratate the States relied upon expert science testimony metting the requirements of ll.O73. Q/-T.- CONCLUSION Smithwic has shown that rhe has met the requirements for relief under Art. ll.073 by discrediting the Scientific testimony and has shown the Trial Prosecutor's own words prove he relied upon the scientific testimony for a conviction. Further, It is also .shown that the Trial Prosecutor in all likelyhood knew the Scientific testimony was going to be false and unreliable. A "Miscariage of JusticeF becomes obvious and the intentional introduction of false and unreliable scientific testimony can not be considerd a harmless intent. PRAYER Wherefore Smithwick Prays that the Court of Criminal Appeals find that Smithwick is entitled to Habeas Corpus Review Under Art. ll.073 and remand the case back to the Trial Court to hold a Evidentiary Hearing to establish a Fact Finding and Conclusions of law based on the records and a Developed Record addressing the merits. Res ec?liz subEitted,,;; ' RO;E. SMITHWICK JR. TDCJ#622814 McConnell 3001 S. Emily Dr. Beeville, Tx. 78102 DECLARATION 3"/5`/5 l hereby declare under the Penality of Perjury that every " statement in the forgoing "Objection" is true and Correct. As to to statement based on the information l have available to me I also believ them to be true and correct. RoY LoUIs sM THWI K agr WM§ /