loso -a
ORIGINAL
No.PD-1050-14
IN THE TEXAS COURT OF CRIMINAL APPEALS
AND THE NINTH DISTRICT COURT OF APPEALS FOR TEXAS
COA #09-13-00180-CR,#09-13-00181-CR,#09-13000182-CR,#09-13-00183-CR
From the 221st Judicial District Court
of Montgomery County* Texas RECEIVED \H
T,C.#12-03-02604-CR COURT OFCRIMINAL APPEALS
MAR 16 2015
PETER JAMES MARTIN/ Appellant/
Abel Acosta, Clerk
v.
THE STATE OF TEXAS/ Appellee,
APPELLANT'S PRO-SE MOTION FOR REHEARING
FROM DENIAL OF PETITION FOR DISCRETIONARY REVIEW
FILED IN
COURT OF CRIMINAL APPEALS
MAR 16 2015
Abel Acosta, Clerk
Due Date: 3/17/2015
Mailing Date: 3/12/2015
cc: State Prosecuting Attorney
Montgomery; County. D:»A.
file
Respectfully Submitted/
PETER JAMES MARTIN, #1846003/pro-se
STILES UNIT/ 3060 FM 3514
BEAUMONT/ TEXAS 77705
TABLE OF CONTENTS
Table of Authorities ... ii
Appellant's Certificate of Rule 79.2(c) Compliance iii
Statement of the Case, Procedural History iv-vi
Argument 1-11
1. Legally Insufficient Evidence of .Intent, Knowledge and Causation
Contrary to USCA 14 & Penal Code §6.04(a), as the Deputy Ran From
a Safe Location Directly Into the Path of Appellant's Already Aimed
and Straight Moving Car's Path for Two Seconds Only Before Backing
Out of the Way, Causing the "Threat" Himself, Requiring Reversal
of Conviction and Rendition of a Judgement of Acquittal 1-8
A. Relevant Facts 1-2
B. Standards of Review - Legal Insufficiency, Concurrent Causation 2-4
C. Application of Law to Facts 4-8
2. The Judge Violated Appellant's Rights to Proceed With Chosen Counsel 8-10
3. The Judge and 1st Counsel Unconstitutionally Aborted a Plea Bargain 8-11
A. Preservation 8
B. Facts 8-9
C. Choice of Counsel 9-11
D. Involuntary and Unknowing Rejection fo 35 Year Plea Offer 10-11
Prayer 11
Certificate of Service, Signature 11
And see. Attachments 1-15 in Support of Appellant's Bro-Se Motion for
Rehearing From Denial of Petition for Discretionary Review
-l-
TABLE OF AUTHORITIES
Tex.Const.,Art.I,§10 Rights to Assistance of Counsel 9
U.S.Const.Amend.4 Unreasonable Seizures Guarantee 4
U.S.Const.Amend.6 Rights to Assistance of Counsel 9-11
U.S.Const.Amend.14 Rights to Due Process 1,2,7,8
Penal Code §6.04(a) Concurrent Causation 1,3,4,8
Penal Code §22.02(b)(2) Aggravated Threat of a Public Servant iv;1,7,8
Tex.R.App.P.21.2 When Motion for New Trial Required 8
Tex.R.App.P.21.5 State May Controvert; Effect 8
Tex.R.App.P.66.3(b) Important question of state or federal law that
has not been but should be settled by TCCA 7,8,10
Tex.R.App.P.66.3(c) Decided important question of state or federal
law in conflict with decisions of the TCCA or
the Supreme Court of the U.S. 7,8,10
Tex.R.App.P.79.4 Motion for Rehearing Decision 11
Tex.R.App.P.79.2 Motion for Rehearing Contents t\\
Austin v. State,748 S.W.2d 546(Tex.App.-Beaumont 1988 pet refd) 8
Baxter v. State,2004 Tex.App.LEXIS 4861(Tex.App.-Tyler 5-28-04 pet refd) 3
Beets v. Scott,65 F3d 1258(5th Cir.l995)(en banc) 10
Brooks v. State,323 S.W.3d 893(Tex.Crim.App.2010) v, 2
Brown v. State,183 S.W.3d 728(Tex.Acp.-Hous[l Dist]ll-23-05 rehg denied 1-4-06) 3
Brown v. State,2004 Tex.App.LEXIS 9479(Tex.App.^^stland 10-28-04) 2,3
Clarke v. State,270 S.W.3d 573(Tex.Crim.App.2008) 8
Clinton v. Stearns,780 S.W.2d 216(Tex.Crim.App.1989) 9
Degrate v. State,712 S.W.2d 755(Tex.Crim.App.1986) 1,8
Dobbins v. State,228 S.W.3d 761 (Tex.App.-Hcus[14 Dist]2007) 3
Dobbs v. State,2013 Tex.App.LEXIS 3050(Tex.App.-toarillo 3-20-13 rehg denied) 3
Estate of Starks v. Engert,5 F3d 230(7th Cir.1993) „ 4
Ferrel v. State,55 S.W.3d 586(Tex.Crim.App.2001) 8
Goad v. State,354 S.W.3d 443(Tex.Crim.App.2011) 2
U.S. v. Gonzalez-Lopez,548 U.S.140(2006) 9
Guevera v. State,152 S.W.3d 45(Tex.Crim.App.2004) 2
Holloway v. State,780 S.W.2d 787(Tex.Crim.App.1989) 9
Hooper v. State,214 S.W.3d 9(Tex.Crim.App.2007) 2
Jackson v. Virginia,443 U.S.307(1979) 2
Jones v. State,926 S.W.2d 386(Tex.App.-Ft. Worth 1996) 9
King v. State,125 S.W.3d 517(Tex.Crim.App.2003) 1,10
Lafler v. Cooper,No.10-209,566 U.S. (2012) 10,11
Malik v. State,953 S.W.2d 234(Tex.Crim.App.1997) 2
U.S. v. Miller,576 F3d 528(5th Cir.2009) 3
Ollivas v. State-203 S.W.3d 341(Tex.Crim.App.2006) 3
Perkins v. State,905 S.W.2d 452(Tex.App.-El Paso 1995) 4
Powell v. Alabama,286 U.S.45(1932) 9.10
Robbins v. State,717 S.W.2d 348(Tex.Crim.App.1986) 4,8
Rochelle v. State,791 S.W.2d 121(Tex.Crim.App.1990) 4,10
Sotelo v. State,913 S.W.2d 507(Tex.Crim.App.1995) 4,10
Swann v. City of Richmond,498 F.Supp.2d 847(E.D.Va.2007) 4
Whiddon v. State,2007 Tex.App.LEXIS 916(Tex.App.-Waco 2-7-07 no pet) 2,3
Wheat v. U.S.,486 U.S.153(1988) 9
Williams v. State,235 S.W.3d 742(Tex.Crim.App.2007) 4,7
-li-
APPELLANT'S CERTIFICATE OF RULE 79.2(c) COMPLIANCE
Appellant Martin certifies that the instant motion for rehearing is ground
ed in the following specified substantial intervening circumstances, which
are asserted in good faith and not for delay:
1. Martin's inmate legal assistant mailed the completed petition and appendix
records to his family for photocopying the numbers required by the Court.
2. Martin's family made 18 copies of the petition and appendix records, and
mailed them to Martin's inmate legal asste&tet on 10/28/14. Att.#3.
3. Prison officials notified Martin's legal assistant on 11/4/14 about receipt
of the documents posing a problem. Att.#4.
4. Prison officials refused to turn over the documents to Martin's leqal
assistant on 11/5/14 because "legal documents on another offender". Att.#5.
5. Martin's legal assistant notified the Mailroom Supervisor, and this Court,
of the confiscation of the legal documents from him on 11/5/14. Att.#6.
6. The Mailroom Supervisor responded in writing "you can't have an outside
source (3rd party) mail things to you that ain't yours." Att.#6.
7. An appeal of this decision was utilized, Att.#5, which was denied. Att.#7.
8. The prison grievance system was exhausted without success. Atts.#8,#9.
9. Appellant Martin was prevented from filing anything substantive, until
this issue was resoled, as prison officials would not return the original
petition and appendix records (or photocopies)to hdm of h-isi.famlly.TTherefore an
additional motion for extension of time was requested and granted. Att.#10.
10. Appellant Martin requested this Court to intervene in a "Motion to Order
State to Return Confiscated Documents to Appellant", which Was" denied 12/19/14
Att.#.ii ^:.:.
11. Appellant Martin's legal assistant was forced to improvise with new plead
ings and different exhibits because prison officials refused to return any
of the confiscated, completed originals to him pursuant to any process described
hereinabove and otherwise attempted informally.
12. The improvised new pleadings and exhibits were filed in this Court on
12/31/15, Att.#12, as the final extended due date was 1/2/15. Att.#10-1 & 13.
13. Appellant Martin's improvised petition included a supplemental-brief which
was 34 pages long. Martin requested leave to file same, but this Court instead
denied a motion for leave to exceed the page limit. Att.#14.
14. This Court refused the pro-se petition for discretionary review on 2/4/14,
Appx.#15, apparently on the merits of only the petition which had unfortunately
incorporated the supplemental brief cited above.
15. The instant motion for rehearing is attempting to overcome the above des
cribed interference with Appellant's good faith attempts to file an otherwise
meritorious PDR brief. In that spirit Martin has selected three arguments from
his previous filings, which briefly argue two Due Process issues of legally
insufficient evidence, a Sixth Amendment choice of -^counsel sclaiirr.andranc; inter*-
related"': involuntary and unknowing rejection of a plea bargain deal claim.
For the above stated reasons, as supported by the attached documentary
evidences which are either the originals or true and correct copies of the
originals, as certified and otherwise sworn to, Appellant Martin respectfully
requests this Court review the instant motion for rehearing doe to being ground
ed in the above substantial intervening circumstances preventing him from filing
his originally prepared documents in this case and being forced to improvise
from his legal assistant's notes and leftover evidence. Tex.R.App.P.79.2(c).
-in- y&^Qt^^rfha*^
STATEMENT OF THE CASE/ PROCEDURAL HISTORY
1. This case is an appeal from four convictions in the 221st Judicial District
Court of Montgomery County, based on a four count indictment alleging (CT.I)
"threaten" Deputy C. Azwell by using a vehicle as a deadly weapon under 1st
degree felony Penal Code §22.02(a)(2),(b)(2)(B), (CT.II) "flee" from Deputy
C. Azwell by using a vehicle as a deadly weapon under 3rd degree felony Penal
Code §38.04(b)(2)(A), (CT.III)"alter,destroy,or conceal""Sryinges" with "intent
to impair its availability as evidence ... related to" a "Possession of Control
led Substance ... offense" under 3rd degree felony Penal Code §37.09(d), and
(CT.IV) possession of a controlled substance under one gram, a state jail felony
under Health & safety Code §481.115. The indictment contained five enhancement
paragraphs alleging prior, convictions. Clerk's Record (C.R.),39-40. Appellant
Martin (Martin) pleaded "not guilty" to all counts, Reporter's Record (R.R.),v.4
p.l, but the jury found him guilty on all counts as alleged in the indictment,
made an affirmative finding of a deadly weapon in the count II evading arrest
count, R.R.,v.9,pp.l28-29, found the first three enhancement paragraphs "true"
and assessed punishments for counts I-III at "life" in prison and for count
IV at twenty years in prison, all concurrent. R.R.,v.11,pp.211-12.
2. On May 4,2012 retained defense counsel Mr. Ward of the firm DeGuerin and
Dickson appearsed for Martin filing a Brady motion and on May 23,2012 then
trial judge Michalk ordered all exculpatory evidence produced. C.C.20-23. On
August 3 & 30,2012 consecutive agreed settings for plea acceptance were sheduled,
C.R.47-54, but on September 20,2012 Mr. Ward filed a Motion to Withdraw (MTW)
claiming he was only hired for plea negotiations, the case was now set for
trial and he was not retained to represent Martin during the trial stage. C.R.,
55. See post.,pp.8-11. A Mr. Boyd represented Martin in this trial, id.
3. On January 23,2013 the State filed (1) a CD video and 11 pages of dispatch
police records summarizing its contents, C.R.,167-80, and, (2) a motion in
limine seeking to limit Martin from arguinq he was "actually or factually in
nocent" (point 5) and "any investigation of Deputy Chris Azwell, whether con
cluded or ongoing" (point 11), amonqst other items, C.R.181-85, which were
all granted. R.R.,v.3,pp.7-13. Martin has no knowledge of whether the CD video
itself was actually forwarded to the Court of Appeals.
4. The September 20,2012 MTW hearing and September 27,2012 Motion to Substi-
tue hearing (MTS) reporter's records were improperly not included in the record
on appeal. Martin has obtained copies thereof and included them in his Appendix
at pages 10-28 as they are relied upon in part post-,pp.8-11.
5. On January 28,2013 jury trial commenced before Judge Turner replacing
without explanation previous Judge Michalk. See post.pg.9(relying on the issue).
6. On January 29 & 30,2013 Mr. Boyd presented a Bill of Exception attempting
to attack the credibility of Deputy Azwell,the main witness against Martin,
arguing the count I threat of* a public servant charge was false, a "cover-up"
of Azwell's "unnecessary shooting" of Martin to arrest him, R.R.,v.7,pp.1-37,
19-21, by introducing as a "Sealed Appellate Record" a DVD interview of Azwell
and his police provided lawyer concerning Martin's arrest and shooting, and
of the lawyer asking Azwell "isn't there one more thing that you forgot or
wish to tell" about this arrest and shooting, which the trial court refused
to allow before the jury, id.,pp.8-9,20-21,40-43.
-iv-
7. Motions for new trial were filed, C.R.220,226, arguing, in parts, that
(1) originally retained trial counsel Dick DeGuerin and Mr. Ward renderred
ineffective assistance of counsel denying Martin choice of counsel and a 35
year plea offer, aggravated by previous trial judge Michalk's on record advice
to Martin to pay Mr. Ward an additional $35,000.00 or else Mr. Ward "will not
want to do a good job for you"-see post.,pg.8-11(Issues 2 & 3); C.R.226-27 ,
(2) the trial court improperly refused to allow the defense to present any
evidence offered to attack Deputy Azwell's critical trial testimonies, C.R.227;
R.R.,v.9(DVD video), and, (3) the trial court improperly denied trial counsel
Mr. Boyd's request for assistance in conducting the motion for new trial, since
Mr. Boyd was "traumatized" by the substance and result of Martin's trial thus
"[n]eeded the help" of an appeal counsel and early preparation of the trial
transcripts. C.R.228-31; R.R.,v.13,pp.5-20; R.R.v,14,p.8.
8. Timely notices of appeal were filed. C.R.234-35. Appeal counsel Mr. Allen
wasifo?e appointed. R.R.,v.13,pp.5-9,13,18-20.
9. On December 10,2013 appeal counsel filed an "Appellant's Brief" arguing
one issue of a failed motion for mistrial. On February 10,2014 the State res
ponded to the argument.
10. On March 17,2014 Martin filed a pro-se motion complaining about appeal
counsel's "only argument" disregarding the major defenses presented in his
trial., criticized counsel's lone argument as meritless, and stated counsel
refused to allow him to participate in his own appeal by denying him copies
of his trial transcripts. Appx.49-52, 03-17-14 Pro-Se Motion,1-4(w/att'd record
of letters to counsel and the trial court). On March 20,2014 the Court ruled
since appeal counsel "already filed a brief on the merits" that the Court "would
not consider any pro-se submissions while a party was-represented by counsel".
Appx.48-Clerk's Notice.
11. On May 21,2014 the Court affirmed Martin's convictions and sentences.
Appx.33-41, Opinion & Judgement. The Court then purported to conduct an evidence
sufficiency analysis stating "[t]he evidence of Martin's guilt leads to the
conclusion that Martin's prospects of being acquitted on any of the charges
for which he was tried were highly unlikely." Appx.38-Mem.Op.,6. This is not the
standard of review in Texas for legal sufficiency analysis, a "highly unlikely"
standard. E.g., In re Winship,397 U.S.358,361-68(1970)(rejecting conviction
based on a preponderance of the evidence standard, requiring proof beyond a
reasonable boubt standard; rev'g conviction): Brooks v. State,323 S.W.3d 893,
894-95(Tex.Crim.App.2010)(overturning Texas factual insufficiency standard.of
review, in favor ofFederal "whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt" standard). For
this reason alone the Court should vacate and remand for a proper legal suffic
iency analysis review.
12. The Court's opinion (1) did not address the legal sufficiency of the evi
dence to support the deadly weapon enhancement of the evading arrest charge,
Appx.38-Mem.Pp.,6, A HOTLY CONTESTED ISSUE IN TRIAL, (2) concluded only Deputy
Azwell's testimony supported the aggravated threat of a public servant convict
ion, but improperly omitted exculpatory, relevant facts from it's analysis,
id.,6-7, ANOTHER HOTLY CONTESTED ISSUE IN TRIAL.
-v-
13. On June 13,2014 Appellant filed a pro-se 57 page motion for rehearing
and motion to exceed the page limits, but on June 26,2014 the Court of Appeals
denied the motion to exceed the page limits and sua sponte extended the time
limit until July 21,2014 to file the motion for rehearing. In this motion Martin
attempted to rakse the following issues: (1) Double Jeopardy prohibitions on
multiple punishments for the same conduct in Counts I and II required the Count
II evading arrest conviction to be vacated; (2) Due Process required the Count
III conviction to .be reversed and acquitted for legally insufficient evidence
of "Syringes" being "related" to the offense of "Possession of a Controlled
Substance" and due to no affirmative link of the "Syringes" to Martin in this
case; (3) Due process required the Count I aggravated threat of a public ser
vant conviction to be reversed and vacated duelrfcolegaUy insufficient evidence
of Martin "threatened" Deputy C. Azwell, Deputy C. Azwell falsely testifying
in trial to the alleged threat, and Deputy Azwell being the sole cause of any
alleged threat; (4) Due process required deletion of the evading arrest affirm
ative finding of a deadly weapon by use of a motor vehicle holding from the
judgement, based on legally insufficient evidence of Martin's actually endanger
ing anyone by proximity; (5) Due Process required reversal of the count I con
viction for aggravated threat of a public servant, as Deputy Azwell violated
USCA 4 and Penal Code §6.04(a) to cause by himself any alleged "threat" to
Deputy Azwell, because Deputy Azwell falsely testified to being in front of
Martin's car when firing his weapon at Martin when in fact the evidence shows
he shot at Martin from the side of Martin's car and his fellow deputy knowingly
suppressed critical evidence and facts proving Deputy Azwell was NEVER in front
of Martin's car at ANY time as falsely testified to in trial; and (6) the Sixth
Amendment rights to effective assistance of counsel, choice of counsel (as
also protected by Tex.Const.Art.I,§10) and to conflict free counsel were violat
ed in five specific trial and direct appeal issues. 6-23-13 Prig.Mot.for Reh'g.
14. On July 21,2014 Martin filed a necessarily severely truncated 15 page
amended motion for rehearing in the Court of Appeals. On July;24,2014, the
Court of Appeals "overruled" without written opinion Martin's amended motion
for rehearing. Appx.45-Clerk's Notice. Presumably, this decision did not con
sider the underlying merits of ANY issue Martin raised. Hanby's Texas Rules
of Appellate Procedure, Annotated,204(West's 2011 ed.)[citing, Rochelle v.
State,791 S.W.2d 121,124(Tex.Crim.App.1990)].
15. On August 7,2014 Martin timely filed a pro-se Motion for En Banc Consider
ation in the Court of Appeals, which was also "overruled" v^fcthout written
opinion on September 4,2014. Appx.42-Clerk's Notice. On August 14,2014 Martin
also served a pro-se Motion to Abate Appeal and Remand to the trial Court for
Fact Findings on his ineffective assistance of appeal counsel and denial of
a meaningful appeal due process claims, amongst other issues, but the Court
of Appeals never decided this motion.
16. A duplicate or similar Motion to Abate Appeal and Remand to the Trial
Court for Fact Findings was filed in this Court and subsequently "denied" also.
17. Several motions for extensions of time were filed and granted, with the
petition and a supplemental brief being filed on December 31,2014. This Court
construed the motion for leave to file the supplemental brief as a motion to
exceed the page limits, denied the motion to exceed, Att.#14, and refused PDR
on February 4,2015. Att.#15. A motion for extend time to request a rehearing
was granted extending the deadline to file until March 17,2014.
-vi-
ARGUMENT
1. LEGALLY INSUFFICIENT EVIDENCE OF INTENT/ KNOWLEDGE AND CAUSATION CONTRARY TO
USCA 14 & PENAL CODE §6.04(a)/ AS THE DEPUTY RAN FROM A SAFE LOCATION DIRECTLY
INTO THE PATH OF APPELLANT'S ALREADY AIMED AND STRAIGHT MOVING CAR'S PATH FOR
TWO SECONDS ONLY BEFORE BACKING OUT OF THE WAY, CAUSING THE "THREAT" HIMSELF,
REQUIRING REVERSAL OF CONVICTION AND RENDITION OF A JUDGEMENT OF ACQUITTAL
A. Relevant Facts
1. "With respect to Martin's conviction for aggravated assault against-a
public servant, Deputy Azwell testified that Martin, in attempting.to
evade arrest, tried to run him over with his car. See $22.02(b)(2).
Martin did not testify at the trial, and the video admitted into evid-
dence that captured Martin evading arrest does not include the part
where Martin used his car in an effort to run over Deputy Azwell.
Nonetheless, Deputy Azwell*s testimony about Martin's having driven
directly at him as the chase was ending is not contradicted. According
to Deputy Azwell, he fired several shots at Martin's car when Martin
drove toward him. Based on Deputy Azwell's testimony, it is unlikely
that the jury would have chosen to acquit Martin on the charge that
he committed an aggravated assault against a public servant. Addition
ally, nothing in the record supports a conclusion that the jury might
have given Martin another punishment on the charge." Appx.38-39,
Mem.Pp.,6-7.
The Court of Appeals erred by omitting relevant, exculpatory facts from it's
analysis, implicating a legal sufficiency issue of great importance to Texas
jurisprudence which this Court has yet to address, but should address, because
it has important impact on the interests of justice in other "public servant"
cases, hence a PDR should be granted on this issue. DeGrate v. State,712 S.W.2d
755,756(Tex.Crim.App.1986); King v. State,125 S.W.3d 517,520(Tex.Crim.App.2003)
(Cochran,J.,concurring).
2. The above quoted sufficiency analysis failed "to consider the incar video
exhibits contents and related testimony and exhibits that uncontrovertedly
establish Deputy Azwell's patrol car's location when he exits it, his exit being
heard clearly on the incar video's audio by a deor slam, and four seconds later
he is shooting at Appellant while backing out of the way of Martin's car's path.
R.R.,v.lO-State's Ex.204(incar video shows patrol car's parked location and four
second timeline); Att.#l, R.R.,v.lO-State's Ex.215("Lieca Scan" drawing of
resident's lawn, house, garage, driveway and Martin's straight, unswerving.path
driving across it); Appx.l, R.R.,v.5,pp.85-86(Azwell's supporting testimony
showing he ran out of his car parked on driveway, and directly into path of
Martin' s carmomentarily).
3. The incar video shows Deputy Azwell pursues Martin onto a dead end street,
and fully around one circle through a resident's lawn, parking his patrol.car
on the street end of the resident's driveway with two other cars at the other
end nosed up against the garage. R.R.,v.lO-State's Ex.204(incar video evidence).
The testimony is that next Martin continued to evade by driving around a second
circle through the resident's lawn while Deputy Azwell's patrol car remained
parked on the street end of the driveway. Appx.l, R.R.,v.5,pp.85-86(Azwell).
4. The relative positions of the resident's lawn, house, garage, driveway,
and Martin's unswerving, direct driving path across the driveway mfitjfee Deputy
Azwell shoots at Martin, are shown by the State's "Lieca Scan" exhibit, which
-1-
significantly omits the location of Azwell's patrol car when parked on the
street end of the driveway as Martin crosses the driveway. Atti#l, R.R.,v.10-
State's Ex.215("Lieca Scan" drawing).
5. Deputy Azwell testified his chosen driveway parking position created a
"car-length-and-a-half" space between the rears of his patrol car and the resi
dent's two cars already parked at the other end. Appx.l, R.R.,v.5,p.86.
6. Critically unrecognized in this court of appeals opinion, is the exculpa
tory difference between Martin driving his car unswervingly direct, aimed at
the space between cars on the driveway BEFORE Deputy Azwell exited his patrol
car and ran into that very space deliberately into the path of Martin's already
already aimed and moving car, and Martin driving his car directly at Deputy
Azwell for two seconds only AFTER Deputy Azwell exited his patrol car and had
run into the space between cars deliberately into the path of Martin's already
aimed and moving car. The former poses no "threat" as alleged in this case,
and the latter was not done intentionally or knowingly because Deputy Azwell's
conduct, by itself, caused any "threat" as alleged in this case and not Martin.
7. It is undisputed that before this encounter on the dead end street, Martin
was driving "reckless". R.R.v,5,p.79; R.R.,v.6,pp.66-67(testimonies of Hadrych
and Azwell).
8. The jury was shown Martin had only 1 eye. R.R.,v.9,pp.37-38,41-42,47-48.
B. Standards of Review - Legal Insufficiency/ Concurrent Causation
9. In order to determine if the evidence is legally sufficient under Due
Process, we must review all of the evidence in the light most favorable to.the
verdict and determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S.307,318-19(1979)(bold added). See Whiddon v. State,No.10-06-00085-CR,
2007 Tex.App.LEXIS 916 @ *2(Tex.App.-Waco 2/7/2007 no pet)(aff'g §22.02(b)(2)(B)
case); Brown v. State,No.11-03-00253-CR,No.11-03-00254-CR,2004 Tex.App.LEXIS
9479 @ *4(Tex.App.-Eastland 10/28/2004)(rev'g §22.02(b)(2)(B) conviction),pet
refd,In re Brown,2005 Tex.Crim.App.LEXIS 582(4/13/2005). This is the only stan
dard for sufficiency of evidence, Brooks v. State,323 S.W.3d 893,894-95(Tex.
Crim.App.2010).
10. Sufficiency is reviewed on the combined and cumulative force of the evi
dence, not by viewing each fact in isolation. Goad v. State,354 S.W.3d 443,450
(Tex.Crim.App.2011). A court of appeals may not substitute its judgement for
the judgement of the factfinders by re-evaluating weight or credibility. Brooks,
supra. But the factfinder's resolutions of conflicts in the evidence must be
rational and inferences drawn reasonable. Hooper v. State,214 S.W.3d 9,15-16
(Tex.Crim.App.2007). Conclusions reached by speculation might not be completely
unreasonable, but it is not sufficient to support a finding of beyond a reasno-
able doubt, id.
11. For purposes of a sufficiency analysis, the elements of the offense are
defined by reference to a hypothetically correct jury charge. Malik v. State,
953 S.W.2d 234,240(Tex.Crim.App.1997). Circumstantial evidence is as probative
as direct evidence in establishing the guilt or innocence of the actor. Guevera
v. State,152 S.W.3d 45,49(Tex.Crim.App.2004). On appeal, the same standard
of review is applied to both circumstantial and direct evidence. Id.
12. In cases like Martin's of assault by threat against a public servant via
use of a motor vehicle as a deadly weapon, before a jury can convict, the State
must produce legally sufficient evidence of intent or knowledge, to prove beyond
a reasonable doubt either a conscious objective to threaten a public servant
with imminent bodilyi injury, or, an awareness that one's conduct was reasonably
certain to threaten a public servant with imminent bodily injury. Brown,2004
Tex.App.LEXIS 9479 @ *5; Whiddon,2007 Tex.App.LEXIS 916 @ *3. It is not enough
that the appellant was either reckless or negligent. Brown,infra. @ *5. It is ir
relevant whether the public servant felt threatened, since the crucial inquiry
remains whether the appellant's proven driving conduct posed "an immediate threat
of danger to a person of reasonable sensitivity." Whiddon,infra. @ *4[quoting,
Plivas v. State,203 S.W.3d 341,347(Tex.Crim.App.2006)].
13. Caselaw establishes that in order to prove beyond a reasonable doubt an
appellant intentionally or knowingly threatened a public servant with imminent
bodily injury by driving a car directly at the officer, it must be proven by
ci rcumstantial evidence or otherwise that relates to the appellant's culpable
mental state with regard to the officer specifically, that the appellant's con
scious objective was to threaten the officer with imminent bodily injury, or the
appellant was reasonably certain that he would threaten the officer with imminent
bodily injury. Brown,2004 Tex.App.LEXIS 9479 @ **5-6(rev'g & acquitting); Cf:
Dobbs v. State,2013 Tex.App.LEXIS 3050 @ **2-4(Tex.App.-Amarillo 3/20/13 reh'g
denied)(finding sufficiency, as appellant "accelerated towards him. The officer
fired his weapon as the car approached and then jumped out of its path just
before it could strike him."); Dobbins v. State,228 S.W.3d 761,765-66(Tex.App.-
Hous.[14 Dist]2007)(finding sufficiency, as appellant drove directly at officer,
stopped at officer's direction, then moved car forward striking officer); Whiddon
2007 Tex.App.LEXIS 916 @ *4(finding sufficiency, as appellant "drove toward
the trooper, and failed to hit the trooper only because the trooper moved and
shot out Whiddon's tire."); Baxter v. State,2004 Tex.App.LEXIS 4861 @ *6(Tex.App.
-Tyler 5-28-04 pet refd)(finding sufficiency, as appellant drove his car dir
ectly towards the officer in an attempt to escape); U.S. v. Miller,576 F3d 528,
529-30(5th Cir.2009)(finding sufficiency, as appellant was trying to escape
by driving through a narrow gap between 2 officer's 2 cars, while the 2 officers
were standing in that gap and had to jump out of the way). When the evidence is
uncontroverted that an appellant's car did not swerve but rather drove straight
for the only available exit to continue evading arrest, the evidence will be
legally insufficient to establish the appellant intentionally or knowingly
threatened the officer by driving his car at the officer. E.g., Brown v. State,
183 S.W.3d 728,732-33(Tex.App.-Hous[l Dist]ll/23/05 reh'g denied 1/4/06)( evidence
was conflicting as to whether appellant's driving swerved away after being
shot at by officer, or merely sped off toward the exit, holding it was error
to not charge jury on reckless driving, but finding error was harmless here).
There appears to be no §22.02(b)(2) caselaw involving an officer that runs
directly in front of the appellant's car as a prelude to the alleged "threat".
14. Additionally, Penal Code §6.04(a)(Concurrent Causation) provides:
"A person is criminally responsible if the result would not have occur
red but for his conduct, operating either alone or concurrently with
another cause, unless the concurrent cause was clearly sufficient.to
produce the result and the conduct of the actor clearly insufficient."
(bold added)
-3-
15. Under the "unless" clause of §6.04(a), if Martin's driving "was clearly
not sufficient by itself", to result in the threat alleged in the indictment,
"but the conduct of another was clearly sufficient, then the evidence is not
legally sufficient to submit the case to a jury or to sustain a conviction."
Williamsr v. State,235 S.W.3d 742,769(Tex.Crim.App.2007)(rev'g conviction for
legal insufficiency);, accord, Robbins v. State,717 S.W.2d 348,351(Tex.Crim.App.
1986)("If the additional cause, other than the defendant's conduct, is clearly
sufficient, by itself, to produce the result and the defendant's conduct by
itself, is clearly insufficient, then the defendant cannot be convicted."),
vacating, on remand,716 S.W.2d 117(Tex.App.-El Paso 1986)(jury charge error
on §6.04(a), rev'g & rem'dg for new trial); Nugent v. State,749 S.W.2d 595,598
(Tex.App.-Corpus Christi 1988 pet refd)("There was evidence that Meza turned
his vehicle into the path of" appellant's car, court held "the trial court
should have applied the law of concurrent causation to the facts in this case
and charged the jury:that if if found Meza's conduct clearly sufficient to cause
the accident and Nugent's clearly insufficient to cause the accident, they
should acquit the defendant.": rev'g & rem'dg for new trial).
C. Application of Law to Facts
16. In Martin's case, the incar video evidence and Deputy Azwell's testimony
indisputably establish, in four seconds total, Deputy Azwell exited his patrol
car slamming the door, ran into the "car-length-and-a-half" space between the
rears of his car and the resident's cars, stopped directly in the center of
this space which was also directly in the center of Martin's car's already
aimed and unswerving- path, then shot at Martin while backing out of the way.
This conduct has been held to demonstrate the officer unreasonably created
the very encounter that ostensibly justified shooting the driver of the evading
vehicle in violation of the Fourth Amendment to the U.S. Constitution. Swann.v.
City of Richmond,498 F.Supp.2d 847,863(E.D.Va.2007)[citing, Estate of Starks,v.
Engert,5 F3d 230,232,234-35(7th Cir.1993)]. Additionally, Martin- requests
this Court take judicial notice of the United States Congress recent pressuring
of Customs and Border Patrol agents and officers ("CBP") into "rethinking its
recalcitrant response" to "some border agents stood in front of moving vehicles
as a pretext to open fire", resulting in CBP Chief Michael Fisher announcing
in March 2014 "official changes to the Border Patrol's use-of-force policy.
Agents would be prohibited from stepping in.ifront of moving cars ". See,
attached Texas Monthly article,p.7(@ http://www.texasmonthly.com/story/who-
will-watch-the-watchers:?fullpage=l ). Perkins v. State,905 S.W.2d 452,453(Tex.App.
El Paso 1995)[citing, Rochelle v. State,791 S.W.2d 121,124-25(Tex.Crim.App.
1990)](authorizing judicial notice of non-record materials;att'd:L:to : a motion
for rehearing for Due Process concerns or the interests of justice). It thus ap
pears there exists problems with law enforcement officer's employing pretexts
such as jumping in front of moving vehicles, to shoot at the driver, out of
frustration, not a sense of endangerment, and then trying to cover it up. Such a
result should be protected against, by this Court's grant of rehearing; and"PDR.
17. Martins reprinted record excerpts in his Appendix,pp; 1-2/ are as follows:
(State's direct examination)
State: So when ycu got cut of your car, tell us where you went.
Azwell: Fran that point, I went to the rear of my patrol car. There was approximately a car
length and a half space between my patrol car and the vehicles parked ;;cn the driveway. I
had nothing else to use to contain Mr. Martin and his vehicle. I stepped directly in between
these vehicles and my patrol car, and made eye contact with Mr. Martin through the windshield
of his patrol car (sic) and gave him a visual signal to stop at that point. R.R.,v.5,p.86.
-4-
Q. And at that point, do you have your duty weapon drawn?
A. Yes, I did draw my duty weapon. ...
Q. Wat did Peter Martin do when he saw you ...
A. I remember he made eye contact with ire. And he accelerated aggressively and I remember
grass fran the yard flying up, and he came directly at ire. ... I knew he was going to try
to get out of there at any cost, and it didn't matter if I was standing in the way or not.
R.R./V.5/pp.87-88. ...
Q. ... How were you able to get out of there?
A. Just by moving cut of the way of the vehicle caning towards me. And actually just narrowly.
I mean he probably passed maybe a foot, a foot and a half next to my body.
Q. ... If I'm driving straight towards you like this, which way did you back out of the way?
A. I backed out of the way towards my vehicle to take cover behind my vehicle.
Q. So you were favoring towards the passenger side of the defendant's car?
A. Correct.
Q. Is that Mien you fired these shots in that nonent?
A. Out of — once again — out of fear of my — fear of my own welfare, my own life. And
not cnly the resident's that were in the area. Kids and everybody else. ...
Q. immediately after the shots were fired you've moved out of the way, what is the very next
thing you have to do?
A. I — he continued to evade. And I got back into my patrol car and continued to pursue.
R.R./V.5/pp.89-90. ...
(Defense's Cross Examination)
Q. ... There is sore shots that we hear on cne of these tapes, I guess. Was that on the tape,
do you think?
A. That's correct.
Q. But no video at all.
A. Not of the shooting.
Q. And basiccaly we just have your word, don't we?
A. At this point. ... R.R./V.6/p.l4.
Q. ... the car is approaching. Let's just say I'm the car. ... I'm in the driver's seat,
right? Okay. Am I caning this way like this, and the — which way?
A. Directly at me, yes.
Q. Directly at you like this?
A. Yes sir.
Q. And then what? Then what did you do?
A. As I made the split second decision to move out of the way, I fired three shots at him.
Q. At him.
A. Yes.
Q. All right. ... And when were you firing the shot?
A. First shot was approximately here, was across the front of the car through the frcnt of
the windshield. Then, as I moved out of the way, he passed by.
Q. And then what?
A. Then two shots were rapid fire right after that. One through the side window and cne into
the — ...
Q. All three shots were fired before the car passed you?
A. That's right. ...
Q. So how fast were these shots fired?
A. All three shots were fired within, I would say, a second to a second and a quarter. ...
R.R.,v.6,pp.l9-21. "
[End of Record Excerpts from Appx./1-2]
-5-
18. The combined and cumulative force of all the circumstantial evidence rele
vant to Martin's driving directly at Deputy Azwell, makes it irrational to
conclude Martin's momentarily driving towards Deputy Azwell was either intent
ional or knowing. The only way this could be concluded is by ignoring the facts
that Deputy Azwell ran directly in front of Martin's already aimed and moving
car, for two seconds', and then jumped out of the way again, which is what hap
pened in this jury trial and is the reversible error committed in this appeal.
The incar video establishes the 4 second timeline between Azwell's slamming
his car door and shooting at Martin while purportedly backing out of the way
of Martin's car's path. Deputy Azwell's testimony establishes he exited the
driver's side of his patrol car while Martin was approaching from the passenger
side of his patrol car, from there he ran into the space between the rears
of his' car and the resident's cars on the driveway.and testifies right then
that Martin's car was coming directly at him without stating the obvious that
Martin':•,was^Lalready!. aimed ;-,., straight and direct for the only avenue of escape
between the two cars on the driveway, and then he testifies that he shoots
at Martin while backing out of the way. Common sense dictates that this direct
encounter between Azwell and Martin had to take no more than two or two and
a half seconds, as slamming the patrol car door and running clear of the rear
of the patrol car had to take one and a half or two seconds, for four seconds
total. There is no testimony that Martin swerved towards Azwell or in any kind
of direction except for Deputy Azwell's testimony that Martin .was driving
directly towards him and the space between the rears of his car and the resi
dent's cars on the driveway. Hence, Martin, was aiming for that space between
cars BEFORE Deputy Azwell ran into that space, 1mU AFTER Deputy Azwell had
backed out of that space given the testimony and the "Lieca Scan" drawing State
exhibit. It is unreasonable to conclude that Martin, a man with only one eye
(and therefore distorted depth perception), could have a conscious objective
to threaten Deputy Azwell with imminent bodily injury by driving directly toward
him for two seconds, after Deputy Azwell had unforseeably run directly in front
of Martin's car for those two seconds. It is unjust to hold a man with only
one eye criminally liable for Deputy Azwell's unexpectedly running directly
in front of Martin's car's path for merely two seconds, in what appears to
be a calculated decision on Deputy Azwell's part to justify shooting Martin
instead of his tires to stop him from evading arrest. Persons of reasonable
sensitivity would not find that Martin posed an immediate threat of danger
to Deputy Azwell, but that if anyone is responsible for an immediate threat
of danger to him it was Deputy Azwell's act of running directly in front of
Martin's car and then out of the way again. Martin's pre-existing culpable
mental state of recklessness never rose up to an intentional or knowing state
of mind under the totality of these circumstances.
19. During the first 1\ to 2 seconds when Deputy Azwell slammed his car door
and ran to clear the rear end of his patrol car, there is no evidence other
than Azwell's testimony that Martin's driving was direct or straight, .-.ior
Martin was ever not aiming for the space between cars on the driveway and aiming
for Deputy Azwell instead. During this time,, Deputy Azwell was protected by
his patrol car being between Martin and himself, and the fact that Martin was
still trying to evade arrest by driving towards the space between the rears
of the cars parked on the driveway. Appx.1-2[quoting excerpts from R.R.,v.5,
pp.87-88 & R.R., v.6,pp.19-20]. Captain Hadrych: who.-jwas *vhere::but did not .witness.,
the shooting encounter, testified of this-moment, "M. that, time, I realized,'he's
trying.:-to--.gain access-back to the road, back to the pavement." R.R., v.6,p75. As
such, there is no evidence Martin was aiming for Azwell during the first half
of this encounter.
-6-
20. During the last 2 or 2\ seconds of this encounter after Deputy Azwell
had run clear of the rear of his patrol car, into the space between the rears
of his patrol car and the resident's cars parked on the driveway (misleadingly
testified to by omitting the fact that Martin was already aiming for this
space between cars at that point to continue evading), drew his weapon, made
a visual command to stop and then shot at Martin (the testimony is Azwell
shot at Martin, not at his. car:as erroneously:found;;below,::compare""Appx.3-R.R.
v.6,pr'.20,- w/Appx.39-MemiOpJ7) while::baeking out of; the way, it-is unreasonable or
speculative to,conclude^beyond reasonable doubt that Martin right then in those
2 to 2\ seconds, having only one eye, had formed a conscious^objective to run
over Deputy Azwell, who had unexpectedly run directly in front of Martin's
car momentarily. No person of reasonable sensitivity could find that Martin
posed a threat of immediate danger to.,Deputy Azwell, but rather a person
of reasonable sensitivity would find that Deputy Azwell posed whatever threat
of immediate,.danger-to himself the State. could somehow.be argued to rationally
have resulted in in la threat top the, deputy. Martin was merely reckless.
21. Deputy Azwell's conclusory testimony that Martin made eye contact with
him is obviously speculation, and certainly not beyond a reasonable doubt given
Martin had only one eye and the associated vision depth perception problems.
22. That Martin's drive tire kicked grass up in the air is not a sign of his
intent beyond a reasonable doubt due to "accelerated aggresively", but rather
nothing more thafc* while Martin's car was driving in the two circles on the
lawn's grass G forces onto the drive tire's side was coming from the dirt under
the lawn's grass; hence when Martin drove straight after coming out of the
second circle there was a sudden loss of traction onto the side of the drive
tire naturally resulting in the grass flying up.::, :ir. :...
23. The combined and cumulative force of all the circumstances relevant to
Martin's intent or knowledge to run over Deputy Azwell were not considered
by the Court of Appeals below, which when properly considered fails to prove
beyond a reasonable doubt Martin intentionally or knowingly threatened Deputy
Azwell by -driving directly at him to run him over. During the critical 2 -2\
seconds of time, Martin did nothing other than continue to evade, andc thuJi'. is in
dicative-of ihis: continued recklessness. Therefore, PDR should be granted on this
issue of whether Due Process was violated here by legally insufficient evidence
of Martin's intentionally or knowingly driving directly at Deputy Azwell under
Penal Code §22.02(b)(2). .Tex.R.App.P.66.3(b),(c)
24. Also, the causation .. -•: evidence of driving directly for the space between
cars which both. :Captain Hadryclvand Deputy Azwell testified was for the purpose
of continuing to evade arrest, is legally insufficient BEFORE Deputy Azwell
ran into that space momentarily till! AFTER Deputy Azwell had run out of that
space, because Martin's conduct as such "was clearly not sufficient, by itself"
to result in Deputy Azwell's being threatened with imminent bodily injury,
and the conduct of Deputy Azwell in momentarily running directly into the path
of Martin' s already aimed and straight moving car (pretextoaliy) was clearly suf
ficient, by itself, to result in any arguable threat to Deputy Azwell that
might have occurred here." Williams,235 S.W.3d @ 769; Nugent,749 S.W.2d @ 598;
Penal Code §6.04(a). Nothing Martin could be arguably: proven to have done after.
Azwell had put himself in front of Martin's car for those two seconds, ^suffices
to prove Martin's reckless mental state rose to intentional or knowing beyond
a reasonable doubt. Gooden v. State,750 S.W.2d 857,859,861(Tex.App.- Corpus Christi
1988 no pet)(atepo-hian case MERE CCURT EXAMINED DRIVER'S COSEUCT CNLY AFTER repo-inan "climbed onto
the ifcrcod of the car" then "appellant drove ... with him en the hood" to sustain conviction).
-7-
25. The Beaumont Court of Appeals committed nearly the same error committed
in Ferrel v. State,55 S.W.3d 586,590-91(Tex.Crim.App.2001) where the court
of appeals erroneously "focus[sed] solely on the impact from the blow of the
beer bottle - ignoring the fact that because of . ,- that blow McManus fell
back, hit his head on the ground and died." id.(vacating and reinstating -rev'd
conviction under §6.04(a)). Here, the Beaumont Court of Appeals focussed solely
upon Martin driving directly at Deputy Azwell - overlooking the ^incontroverted
fact Deputy^.Azwell/•momentarily ran directly in::front ofMartin' s car, w/Azwell
causing the. dangers-.The deputy caused any arguable result of his-. own/self'. being
"threatened" by Martin's car driving directly at him under §22.02(b)(2). This
is exactly the sort of omission of relevant facts from an appeal opinion that
this Court looks for to grant a PDR. Ferrel,55 S.W.3d @ 690-91; Degrate,712
S.W.2d @ 756. Therefore, rehear&hg and PDRqshould be granted .v. on: whether there
was'" legally insufficient: evidence under.:: .Texas: Penal Code §6.04(a) of Martin's
causing Deputy Azwell to be "threatened" under the State's theory of this case.
Tex.R.App.P.66.3(b),(c); Robbins,717 S.W.2d @ 349(granting appellant a rehearing
on meritorious §6.04(a) jury charge issue, vacating),on remand, rev'g, 717 S.W.2d 717.
2- |THE TRIAL COURT JUDGE VIOLATED APPELLANT'S RIGHTS TO PROCEED WITH CHOSEN COUNSEL|
3. ITHE JUDGE"AND 1st COUNSEL UNCONSTITUTIONALLY ABORTED THE PLEA BARGAINING PROCESS
A. Preservation
Unobjected facts necessary to support the above grounds for relief are
preserved in two pre-trial hearings omitted from the Reporter's Record but
are presented in Appellant's Pro-Se Appendix,pp.10-28(Sept.20,2012 MTW HearinqS
Sept.27,2012 MTS Hearing), and in trial counsel's Motion for New Trial. See,
R.R.,v.l2-Defs Exs.1-4; R.R.,v.13,pp.1-13(trial court's denial of trial counsel
request for preparation of transcripts for motion for new trial purposes, and
assistance of appellate lawyer for same); R.R.,v.l4,pp»l-77(same,pp.l-21; facts
in support of motion,pp.22-71; denial,p.73). Tex.R.App.P.21.2,21.5; see, Clarke
v. State,270 S.W.3d 573,580-81(Tex.Crim.App.2008)(issue preserved as it was
litigated withoufobjection at the hearing, even though motion did not explicitly
raise the issue; "there is nothing in the Rules of Appellate Procedure which
requires that a written motion for new trial precisely identify the contours
of a defendant's ground for granting a new trial."); Austin v. State,748 S.W.2d
546,548(Tex.App.-Beaumont 1988,pet.refd)(hcfdinq if the State fails to contro
vert the motion or present conflicting evidence, the defendant's version of
the facts will be taken as true).
B. Facts
Trial counsel complained on motion for new trial about issues raised in
pre-trial motions to withdraw and to substitute counsel and during the new
trial hearing. C.R.,226-27[incorporating trial counsel's "'ineffectiveness''
ground of his is inartfully expressed" at C.R.220-22]. Martin's f^m'lttj issued
on 4/27/12 a cashier's check for 55,000.00 to Dick DeGuerin for his attorney
fees and expenses, DeGuerin's staff attorney Todd Ward received the funds and
issued a 4/30/12 letter on DeGuerin letterhead informing Martin's family this
"does not include the fee for going to trial". R.R.,v.12,D.Ex.1-3. Mr. Ward said
during his motion to withdraw, that he had gotten the State's plea offer down
from 50 yrs "agg" to 40 yrs "agg", to which the State responded with a 35 yr
"agg" offer, to which Ward responded with "he's already rejected it", followed
by the State's assertion "the [new] offer is gone." Sept.20,2012 MTW Hearing,8
-8-
Trial counsel's complaint was Ward and DeGuerin took $55,000.00 from Martin's
mother and would not go to trial when plea negotiations failed. R.R.,v.l ,pp.26-
27; Appx.l4-Sept.20,2012 MTW Hearing,5. Trial counsel's first appearance in
this case was to defend Martin against Mr. Ward's attempt to withdraw from
representing Martin when plea negotiations failed. Appx.15-16-Sept.20,2012.MTW
Hearing,6-7. The issue was after plea negotiations failed, Mr. Ward demanded
an additional $35,000.00 from Martin to go to trial, but Mr. Martin's family
didn'tf-have any more money to pay. R.R.,v.14,pp.30,37. One problem was that
noone told Martin that Ward's representation was conditional and did not include
going to trial, so when Martin rejected any plea offer, he did so unknowingly
and unintelligently as Martin only discovered there was a "contract" for only
plea negotiations at the motion to withdraw hearing. R.R.,v.14,pp.26-27; and
see, Appx.14-Sept.20,2012 MTW Hearing,5. The most significant problem, though,
was trial judge Lisa Michalk's response to this issue on the record was, "Here's
the deal. You have to pay your attorney. Otherwise/ your attorney is not going
to want to do a good job for you." id. This was trial counsel's main complaint.
C.R.220-21("The said judge ... aggravated the problem by lecturing the defen
dant in effect that these lawyers might not do an enthusiastic job in defending
defendant if they were'nt paid their fee","... the defendant could not have
faith in these lawyers properly representing this defendant especially after
hearing the judge's remarks ...'V'Thus the ineffectiveness and denial of defen
dant's first choice of counsel, caused by state action by way of the District
Judge who presided over the case at the time was apparent."),C.R.226-27(incorpor
ating by reference this argument); R.R.,v.14,p.27 Ins,10-20,p.28 Ins.1-5, p.37
Ins.5-15,p.50 Ins.20-25,p.71 Ins.20-21. Judge Mi-chalk's statement caused Martin
to change his strategy of forcing Ward to represent him in trial, to dismissing
Ward from representing him in trial. See, Appx.23-27-Sept.27 MTS Hearing,4-
8: SEE Martin's testimony in support, R.R.,v.l4,pp.30-33,36 lns3-ll,p.37 Ins.9-
15,p.41 Ins.22-23. The State responded by arguing what a great job Mr. Todd
and Mr. Boyd had done for Martin. R.R.,v.14,44-49,pp.69-70 Ins.4-25,1-8. The
State did not respond to the choice of counsel violation argument, but only
the denied plea bargain argument, id. Before'trial'Judge-Michalk removed herself
as trial judge, replaced by the Hondrabld"Mary Anne Turner'whose'only expressed
concern with this substitution was "--for whether Martin's 'choice of counsel:',
going forward was being respected. R.R.,v.4,p.l37~lh.l2:to"p.l38: In.14.
C. Choice of Counsel
The Sixth Amendment confers a right to retain the attorney of one's choice.
Powell v. Alabama,286 U.S.45,53(1932). The right to choose counsel can be viol
ated even if an erroneously substituted counsel is effective because the choice
versus the quality of representation are distinct rights. U.S. v. Gonzalez-
Lopez,548 U.S.140,147-48(2006). While this right is not absolute under USCA 16,
giving trial courts the right to balance counsel of choice against the interests
of judicial integrity and efficiency, Wheat v. U.S.,486 U.S.153,162(1988), this
specific right IS absolute under Texas Const.Art.I,§10. Jones v. State,926
S.W.2d 386,390-91 & nn.21,22(Tex.App.-Ft. Worth 1996)[citing, Holloway v. State,
780 S.W.2d 787(Tex.Crim.App.1989) & Clinton v. Stearns,780 S.W.2d 216(Tex.Crim.
App.1989)].
Martin'iSi. family paid Attorney Dick DeGuerin $55,000.00 to defend him in
this case yet only associate counsel Mr. Ward represented Martin during plea
negotiations alone, and when they failed Ward demanded $35,000.00 more to go
to trial (which Martin's family did not have) according to Ward's purported
-9-
contract with the family for only pre-trial negotiations. However, Ward never
told Martin of any "contract" or it's clause requiring more funds to continue
to trial, until the motion to withdraw hearing of September 20,2012. Thus,
up to that point, Martin thought he had "the best representation...a very
prestigious law firm" to take him to trial which was why Martin turned down
40 and. 35 year plea offers. R.R.,v.13pp47-49(State's cross). Martin came to the
motion to withdraw hearing armed with Mr. Boyd to force Mr. Ward to defend
him in trial. However, as the record clearly shows without objections from
the State on the record, trial judge Michalk's statement to Martin that if
he did not pay Ward the $35,000.00 requested, he "is not going to want to do
a good job for you", "pulverized him, it demoralized him", R.R.,v.13,p.27,
into involuntarily waiving his right to proceed with chosen counsel Mr. Ward.
The trial judge's statement intimidated and coerced Martin into dismissing
Mr. Ward as his chosen counsel a week later on September 27,2012. The trial
judge's statement violated Martin's Federal and State right to choice of counsel
requiring reversal of conviction and a new trial.
The Cour^-should:53S*l^ it is a novel and
important issue of Texas and/or Federal constitutional law which this Court
has nc^:squarelyi'addressed but this Court should address to inform the bench and
bar as to the content of the law on the issue. Tex.R.App.P.66.3(b),(c); King,125
S.W.3d @ 520. Here, the Court of Appeals opinion presumably did not address
this issue preserved only in a pro-se motion for rehearing. See Am.Mot.for Reh'g,
W&ttTfiled ,7/17/14,:J:o.2err.uledl-.7./24/a4')/; Sotelo v. State,913 S.W.2d 507,508-
10(Tex.Crim.App.1995)(claim was preserved though only presented on motion for
rehearing as no earlier opportunity to raise claim); Rochelle,791 S.W.2d @ 124.
D- Involuntary and Unknowing Rejection of 35 Year Plea Offer
Martin's being kept uninformed about Mr. Ward's fee contract's, existence
and terms for pre-trial negotiations only, up ase=l 11 /9/2014
Who Will Watch the Watchers? |Texas Monthly Page 5of 14
completed its investigation and turned its findings over to the Civil Rights Division of the
Department of Justice. In recent months, however, the Border Patrol's use of force has come under
heightened scrutiny both in Congress and in the national media, easting a new light on Arevalo's
shooting and Others like it, Border security, meanwhile, has once again become a buzzword in
Washington, as a new immigration reform hill wends its way through Congress. As some in
Washington call for more agents in the field as a prerequisite to negotiation on any comprehensive
reform measure, Arevalo's case poses a troubling question: While agents watch the border, who is
watching them?
Border patrol shootings, especially those that involve agents shooting across theborder into Mexico,
used to be quite rare. Such incidents have become more common, however. Since the beginning of
2005, Customs and Border Protection officers, who work atports ofentry, and Border Patrol agents,
who police the vast areas between ports, have killed at least 42 people. Some ofthese shootings were
clearly justified, but in many instances, as in Arevalo's case, accounts offered by agents and
eyewitnesses differ. The best known ofthese incidents was the June 2010 shooting ofa fifteen-year-
old Mexican boy under a railroad trestle connecting El Paso and Juarez. Sergio Adrian Hernandez
Giiereca was among a group of boys and men who had crossed themostly dry, concrete-covered bed
ofthe Rio Grande, only tobe surprised by a Border Patrol agent on a bicycle. Acellphone video shot
from the sidewalk on the nearby international bridge captured what happened next. In the video, the
agent manages to collar one of the fleeing young men, and then, holding his captive down with one
hand, he points his pistol across the river and fires. A figure falls dead, shot in the head.
The agent, Jesus Mesa Jr., would later tell investigators he was surrounded by rock throwers and fired
in self-defense. Yetthe video, which has now beenviewed more than 1.6million times on YouTube,
clearly shows thatMesa was not surrounded. Andwhile it seems to show more than oneperson
throwing rocks at the agent, Hernandez himself, who was hiding near One Ofthe trestle's pilings, was
not among them. Federal investigators declined to prosecute Mesa for the shooting, finding that he
had followed agency policy.
Far fewer people have viewed the video of Arevalo's killing, though both incidents raise the same
essential questions about how lethal force is being used along the border, especially with respect to
incidentsof allegedrock-throwing attacks on agents. Border Patrol agents and CBP officers both
work for an agency called Customs and Border Protection, which is a division of the Department of
Homeland Security. Official CBP policy allows agents to use lethal force when they feel their lives
are in danger, and while the agency for years has declined to make public the details of this policy,
seniorofficials have longmaintained that the agency considers rock-throwing attacks (or "rockings,"
as agents refer to the incidents) to be potentially life-threatening situations. Rockings can be
dangerous, T.J. Bonner, the former president of the National Border Patrol Council, the union that
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represents agents, told Homeland Security Today magazine in 2011, not just because ofthe damage a
thrown rock could cause but also because ofwhat could happen after ah agent was incapacitated by a
rock. "What's to stop one ofthese people," he said, "from then taking the agent's firearm and
executing him?"
Statistically speaking, Border Patrol agents are much less likely to be physically assaulted than
municipal police officers in an average city. Killings ofagents are rare, though not unheard of; three
agents have been killed by assailants since 2004. There is no question that rockings have become
common, however, due in part to the sheer number ofagents that are now on the border. In the post-
9/1 1era, arenewed focus on border security led to adoubling ofthe force (there are now roughly
21,000 Border Patrol agents, along with nearly 22,000 CBP officers working the ports ofentry).
Smuggling of both people and contraband has become more difficultas a result of the massive
increase in personnel, and rock-throwing has become a favored means ofdistracting agents trying to
make arrests. This is especially true in urban areas, where smugglers and agents are ubiquitous.
Sometimes the rock throwers are lookouts, hired to buy their employers afew extra seconds to get
back into Mexico. Other times they are simply bystanders who express their displeasure with la
migra with whatever means they can find at hand.
No agent has ever been killed by a rock, and injuries are infrequent, usually because of the distance
between agents and their assailants. The vast majority ofthese attacks do not result in agents' firing
their weapons. Still, it's clear that agents are using their weapons with some regularity. According to
numbers compiled by the inspector general's office ofthe Department ofHomeland Security, agents
were attacked with rocks 185 times in 2012, themost recent yearfor which figures are available, and
responded with firearms in 22 ofthose instances. In a year-long investigation of CBP shootings
published in December, theArizona Republic found 8 instances in which agents had killed rock
throwers since 2010. Using agency records, the Republic also tabulated 160 incidents during that
period inwhich agents chose to use less-lethal weapons attheir disposal, including a type ofmilitary-
grade paintball gun that can shoot more than ten pepper spray-filled balls per second. There were no
reported injuries—among agents or assailants—in those instances, and agents consistently reported
that these weapons were quite effective in deterring rock throwers. Yet agents are not required to
carry them, even in urban areas, where most rockings occur.
Under pressure from members of Congress concerned about therash of recent shootings, in 2012
CBP officials quietly invited a group of law enforcement experts to review the agency's use-offorce
policy. Thegroup, known as the Police Executive Research Forum, was givenaccess to several
years' worth of internal CBP use-of-force incident reports. The CBP did not release the results of that
review to the public, but some of its recommendations wereleaked. TheAssociated Press reported
last November thatamong other things, PERF advised against using lethal force on rock throwers. A
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better policy would be to move out ofrange or use less-lethal weapons, PERF concluded. In response
to questions from the Associated Press, however, Border Patrol chiefMichael Fisher announced that
his Officers would continue to employ deadly force against rock throwers at their own discretion,
despite the experts' recommendation. This prompted a round of stories with unfortunate headlines
like "Border Patrol Will Continue Killing People Who Throw Rocks." The agency seemed oblivious
to the public relations implications, orperhaps impervious to them.
That changed in late February ofthis year, when the Los Angeles Times acquired an unredacted
version ofthe PERF report. According to the Times, the report determined that "some border agents
stood in front ofmoving vehicles as apretext to open fire and that agents could have moved away
from rock throwers instead ofshooting at them." The report also suggested that some agents fired
their weapons at rock throwers out offrustration, not a sense ofendangerment. Finally, itcited a
"lack ofdiligence" on the part ofCBP officials assigned to investigate agent=involved shootings.
Asked about the report, Jeh Johnson, Barack Obama's new Secretary ofHomeland Security, replied
thatthe agency was rethinking its recalcitrant response to PERF's recommendations.
Then, in early March, ChiefFisher announced official changes to the Border Patrol's use-of-force
policy. Agents would now be prohibited from stepping in front ofmoving cars orshooting atvehicles
fleeing from agents and would be instructed to move away from rock throwers or take cover if
possible. This was widely described as a "reversal" ofprevious policy, but it remains far from clear
what practical effect if will have on the ground. After all, the existing use-of-force policy, which CBP
finally made public around the same time, also directed agents to use lethal force only when they felt
themselves to be in imminent danger. Indeed, officials withthe National Border Patrol Council
immediately downplayed the significance of the arfflomceffient, which Chief Fisher himself had
referred to not as a new policy butas a clarification of existing policy.
"We don't view it as an outright restriction on agents' use of deadly force," Shawn Moran, the vice
president of the agents' union, told the Arizona Republic on the same day Fisher made his
announcement. Moran characterized it as "a reminder to agents to seekalternatives." In otherwords,
agents will still exercise their own discretion in deciding when to shoot at rock throwers. And the
new directives have yet to be incorporated intoan official update of the use-of-force handbook, a
process that is typically the result of a protracted negotiation with the union, which relies on the
handbook in defending agents subject to disciplinary actions. "We would fight any restrictions onthe
ability of agents to use force to defend themselves," Moran told the Republic.
Whether or notagents will be held accountable for the decisions they make remains unclear aswell.
Neither Chief Fisher nor Secretary Johnson has publicly responded to one ofthe key findings inthe
PERF report, concerning CBP's "lack of diligence" when it comes to internal investigations. The
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Arizona Republic's investigation examined the 42 lethal shootings since 2005, and in not one of those
cases could the paper determine that any agent involved had ever been disciplined by any agency,
charged criminally, or found civilly liable. The silence surrounding the investigation ofGuillermo
Arevalo Pedraza's death is not the exception, it's the rule.
"Affairs on the border cannot be judged by standards that hold elsewhere," Walter Prescott Webb
wrote in The Texas Rangers, his 1935 treatise on the state's elite police force, which was for all
practical purposes the frontier's nineteenth-century version of the Border Patrol. Almost eighty years
later, the modern Border Patrol still seems to operate in a kind ofmoral and ontological gray area,
one that extends to even the most basic question ofjustwhat a Border Patrol agent is. An agent is not
technically a soldier, though casual observers could be forgiven for thinking otherwise. Not only
have the accoutrements of war become increasingly common onthe border, as the CBP uses drones
and Black Hawk helicopters to patrol themore remote areas, buttherhetoric of waris pervasive in
the media and on Capitol Hill. In 2010 Oliver North took his Fox News War Stories team to the
border to report on what he called the "Third Front" (the other two being Iraq and Afghanistan). The
National Geographic Channel reality show Border Wars, which follows Border Patrol agents inthe
field in the tradition of Cops, is now in its eighth season. Meanwhile, the violent conflict in recent
years between warring cartels in northern Mexico has given rise to the "spillover violence" meme,
which has beenubiquitous in policy circles and media reports since 2008. Security hawks in
Congress argue that the Border Patrol—only recently doubled in size—needs reinforcements to
protectus from this phenomenon, despite the fact that the Southwest border remains among the safest
places to live in the United States. (El_ Paso, despite its proximity to Juarez, one of the most
dangerous places in the western hemisphere, is the safest large city in America,)
Policymakers and senior officials at the agency seem torn about Whether the Border Patrol is an army
or an enormous police force. The seeds of this identify confusion were planted shortly after 9/11,
when the Border Patrol was subsumedunder the newly created Department of Homeland Security
and recast as one of many regiments in the nation's war on terrorism. The Border Patrol's new
mission was said to be aligned with that of the Army or the Navy or the NSA: to protect us from
foreign invaders bent on our destruction. But while having 21,000 agents on or near the border no
doubt has dissuaded some foreign elements from entering the country overland, fighting terror is not
principally what those agents do. The Border Patrol arrested 364,000 people in 2012. Not a single
one was an international terrorist. The vast majority were migrants in search ofjobs. An agent spends
most of his or her time chasing would-be nannies, construction workers, and landscapers. Even the
drug mules, los mochileros, are not generally armed or dangerous.
The difference between a soldier and a police officer is more than a semantic one, and the Border
Patrol's identity crisis has genuine consequences. War and police work are fundamentally dissimilar,
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explains Christopher Wilson, a border-security expertat the Woodrow WilsonInternational Center
for Scholars, a Washington, D.C,think tank. "When you're told your mission is national security,
and the people you're interacting with are not citizens—meaning they're not the people you're
accountable to in a democratic structure—that does replicate to a certainextent the situation the
military faces," he said. '^Nonetheless, they are law enforcement. And what that means isyou use the
minimal force needed to do your job."
Police forces are also more transparent andreceptive to criticism from the communities they serve
than armies. The community the Border Patrol operates within may be an unusual one, in thatit
straddles an international boundary, but it is a community nonetheless. The ties—family, cultural,
and commercial—that bind twinned border towns like Laredo and Nuevo Laredo are hundreds of
years old. Yet the metaphor ofwar has, perhaps unintentionally, helped give the CBP a certain
measure ofinsulation from that community. Extracting information from the agency about a shooting
is notoriously difficult, especially when compared with a typical urban police department. If an
officer kills someone in Dallas, for example, the name ofthe officer involved istypically released the
same day, and residents ofDallas can expect to see a statement describing what happened from the
chief ofpolice inthe paper oronthe evening news. Internal investigations follow a standard
operating procedure that is reasonably transparent. The result is thatwhile community members may
not always agree with decisions made aboutthe legitimacy of police shootings, the process at least
offers some reassurance that officers are accountable to the community they serve.
The Border Patrol, by contrast, almost never releases the names of agents involved in shootings or
the results of internal investigations. Typically, such details become public only if a civil suit is filed
and a judge grants the attorney for a victim's family access to the relevant information. Information
about shootings is very hard for the media to acquire as well. In its investigation, the Arizona
Republic noted that it took nearly a year for the agency to release the use-of-force reports the paper
requested, and they were frequently heavily redacted or incomplete.
Members of Congress, even those whose duties include oversight of CBP, have the same difficulties
when it comes to getting information from the agency, according to El Paso congressman Beto
O'Rourke, a Democrat who sits on the Homeland Security Committee. "The top officials cloak
themselves in the national security mantle," he said. "We can't get any more information than
anybody else about specific incidents."
With such an opaque internal disciplinary process, victims' families often find that their only
recourse is through the courts. But this is frequently less than satisfying too. A Corpus Christitrial
lawyer named Bob Hilliard represents the families of both Sergio Hernandez and Guillenno Arevalo.
"Hernandez was not throwing rocks. And I don't think Arevalo was either," he said. "But what if
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they were? Would a Laredo police officer shoot somebody dead for throwing a rock at him from a
hundred feet away?"
Hilliard's wrongful-death suit on behalf OfHernandez was dismissed by an El PasO judge in August
2011 on the grounds that the victim was not killed in the United States and therefore not entitledto
relief under the U.S. Constitution. "IfI understand that correctly, it means any agent can do anything
he wants to anybody as long as the victim is in Mexico and the agent is onU.S. soil," Hilliard said.
"Does that sound right to you?" Hilliard has appealed the ruling. His suit on behalfofArevalo has yet
to be filed.
Whether criminal charges will be brought against Arevalo's shooter is still an open question. For
federal prosecutors, when itcomes to filing charges against Border Patrol agents, there is more to
consider than just the facts ofthe case. The appointment ofU.S. attorneys, after all, isoverseen by
the president, and, rightly orwrongly, they are seen as his agents, which means such prosecutions
inevitably become entangled in the seemingly endless debate over immigration reform. Consider the
notorious case ofBorder Patrol agents Ignacio Ramos and Jos<§ Compean, who were tried and
convicted in 2006 for shooting a fleeing, unarmed smuggler. The smuggler survived and escaped to
Mexico, where his account ofthe shooting led to the agents' eventual prosecution. Investigators
discovered that the agents, knowing they had committed a crime, covered up the episode by
destroying evidence and lying about the incident. Nevertheless, the reaction to their sentencing,
especially on conservative talk radio, was so vehement that then-president George W. Bush was
persuaded to commute their sentences as oneof his last acts in office, Howcould we be going after
agents, it was argued, when officials in Washington haddone so little to stem the flow of illegal
immigrants and narcotics?
It did hot help, Ofcourse, that the Victim in that case was a smuggler, a fact that is not lost on federal
officials in Hernandez's case either. Three days after the teenager's death, authorities leaked his
arrest record to the press. At a time when we still did not know the name of the shooter, we knew that
Hernandez was apatero, a smuggler who helps people cross the border. He had been arrested for
allegedly helpingpeople illegally cross more than once, most recently in 2009. (He was never
prosecuted, probably because he was a minor.) Leaking Hernandez's record was a violation of
federal law—juvenile records must be kept private—butthe agency was facing a public relations
disaster. When asked about Hernandez's record on Fox News, Hilliard replied with a question of his
own: "Andpunishment for [smuggling] is for the Border Patrol agent to bejudge,jury, and
executioner there on the border?"
No smears have been forthcoming about Arevalo, whose name does not appear in CBP's database of
offenders. Still, Hilliard said he is not optimistic about a criminal prosecution. Border security is still
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atop issue, especially for Republican primary voters, which means itremains apolitical football. He
thinks U.S. attorneys learned alesson from the Ramos and COmpean prosecution. "It's just not worth
the hailstorm that will follow," he said.
To date, neither the House nor the Senate Homeland Security committees have scheduled hearings on
CBP's use-of-force policies, though incoming CBP commissioner Gil Kerlikowske, a former Seattle
police chief, was asked about the issue at his confirmation hearing in January. He promised more
openness ifconfirmed, noting that he had never worked for apolice department that did not make its
use-of-force policies public. O'Rourke, the El Paso congressman, has teamed up with a conservative
New Mexico Republican named Steve Pearce on aproposal to create anew border oversight
commission, to bring some transparency to the agency's activities. The bill would also create a new
ombudsman within the Department ofHomeland Security, to bring an independent set ofeyes to bear
on allegations ofwrongdoing, not unlike the approach used by the U.S. military to address the recent
sexual abuse scandals. O'Rourke has found some tea part}' members to be surprisingly receptive to
his reform message. "They don't like the idea ofthe border as akind ofConstitution-free zone, where
civil liberties and constitutional protections don't apply," he said.
Nora LamGallegos lives in a neighborhood on the northern outskirts of Nuevo Laredo called Lomas
del Rio, one of the neatly gridded developments of modest concrete and cinder-block homes that
have sprung up in the twenty years since the passage ofNAFTA made this city a boomtown. On the
February morning I visited, it was bitterly cold and overcast, and nobody was out on the street. I
recognized the cheerful green exterior ofLam's house from earlier reports on Mexican TV news,
though ithad lost much of its charm inthe intervening months. Lam told me she had been able to
find Only sporadic employment since her husband's death, including some part-time houseeleamng. It
wasnot enough to replace her husband's income. The girls were not at home, butthe hallmarks of
female adolescence were hard to miss. On a shelf in the living room was ahomemade Mother's Day
card, along with some Hello Kitty wonderama. Her daughters hadn't been the same since seeing then-
father killed, she said. "They were never rebellious before," she told me in Spanish, "but now they
don'twant to listen." The Tamaulipas state government paid for the kids to see a psychologist, which
was helping, she said. The park where her husband was shot—part ofa larger complex that includes a
zoo, a skate park, and a swimming pool—had long been one oftheir favorite places to visit. "They
are always asking me to go back," she said, tearing up. "I take them, but not down to the river. I can't
doit."
Lam, who is28, would have celebrated her eleventh anniversary with Arevalo this year. They met at
the wedding ofa friend, and he made her laugh. He was a constant presence inthe neighborhood, she
said, playing soccer with the local kids or chatting at the fence with the neighbors. But mostly he
lived for his daughters. After his death, Arevalo's friends paid to have a corrido written about him,
W
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and the accompanying YouTube video is filled with still photos ofArevalo with Priscilla and
Mariana, the girls mugging for the camera with atreat in one hand and an arm around their dad, who
sports agoatee and a seemingly endless Variety ofmajor league baseball caps. Many ofthem were
taken atEl Patihadero, not far from the spot On the bank where he died.
Lam was interviewed by American officials in Laredo two days after the shooting, but she has not
heard from anyone about the investigation in along time. On the morning Ivisited her, the Laredo
Morning Times carried a story about the sentencing ofa Mexican gunman for the murder ofBorder
Patrol agent Brian Terry. Terry's killer, apparently abandit who preyed on backcountry drug
couriers, got athirty-year sentence. Ishowed the clipping to Lam. "They made that Mexican pay for
what he did," she said. "And ifmy husband had been the shooter, instead ofthe one who got shot,
you can be sure the Mexican government would have given him to the Americans, and he would
have been punished." But it didn't happen that way. To this day, she still doesn't even know the
name ofher husband's assailant. "How come he is free and enjoying life," she asked, "when there is
no happiness in mine?"
After Ivisited Lam, Iwent to the park where her husband died. The shocking images I'd seen in the
video were hard tosquare with the scene itself. I stood in the parking lot ofthe zoo on the hill above
the park and looked down at the acre oftrees, their trunks painted white to ward off bugs, and the
river beyond. Aquarter mile up the opposite bank, in Laredo, sat a nice new H-E-B, its cobalt-blue-
framed entrances beckoning cheerfully, its parking lot about aquarter full. Between the blacktop
surrounding the store and the river below was amaze ofbare-earth paths trickling down through
mesquite and thick brush, beckoning the mochileros andpateros to take their chances, A white
Border Patrol SUV Was parked ata strategic point halfway down the bank, looking over the river and
the park on the far side. It's a favorite lookout point; ifyou study the satellite image ofthe park right
now on Google Maps, you'll see the same SUV, or one just like it. It's a hell ofa place to get shot in
the chest with an automatic weapon, between an H-E-B and a zoo.
I drove down to the river, where I wasjoined by Josue Ledezma, a close friend of Arevalo's who was
at the barbecue the day ofthe shooting. Ledezma is also a bricklayer by trade, though he is ten years
younger than Arevalo, lean and handsome. He grew up in Lomas del Rio, and he and Memo, as
Arevalo's friends called him, had been close since Ledezma was a boy. In the video, he is one ofthe
young menwho can be seen near Arevalo as he leans against the white Buick, in the calm before the
storm.
Like everyone else in the city, Ledezma seemed to have been caught offguard by the freakishly cold
weather. He was wearing pajama bottoms and a long-sleeved T-shirt, shivering as he walked me
through the scene ofthe shooting. With his hands tucked snugly under his armpits, he showed me
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J' Page 13 of 14
where he was standing when his friend was shot and how the bullets kicked up the gravel all around
h« feet It was amiracle, he said, that only one person had been shot He had dived into the brush
when the shots were fired, and when he came Out, he saw AreValo lying On the ground It was
Ledezma who drove Arevalo to the hospital in his dying friend's own Buick, along with his wife and
daughters.
Ledezma said he had been contacted as recently as last fall about the shooting by American
investigators and had told his story once again. After so much time had passed, however he wasn't
optimistic that justice would be coming for his old friend. On the bank not far from where Arevalo
died, there is alarge square ofconcrete, the remnant ofan old bridge or pipeline foundation, partially
submerged in the river. In the days after his death, Arevalo's wife had spray.painted asimple
memorial there for her husband. It had read "Descansa enpaz, El Memo" Ledezma looked for it but
he couldn't find it. It was definitely the same spot, but the words weren't there anymore.
"Se desvanecieron," he finally said. "They faded away."
Tags: POLITICS, BORDER PATROL, BORDER VIOLENCE, ROCK THROWINGS, GUILLERMO AReVA ij\j
PKDRAZA, CUSTOMS AND BORDER PROTECTION, LAREDO, NUEVO LAREDO
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ctiua m He. ei*etin's pending direct antral r«g«x&ta&. that e^cif ic trial '
court nunocr, peiwins in the ftra Court ©£ Criminal AfclwdruMfler their
in Kontyooery County causa maebsr 12-03-02604-CR. ¥our ©trice's *x«fiecs,Uonu
and frc» the courta ane private pxsena, will yrtvenfc {fe. Hartln fro* £iH«,
SL^1 doou"?»t» °* *•«**_«: 20,2014-deadline ft* filing In hia cs_Z
ffi« IS 5l°*on^"f1!**
file oocumants hia behalf his 7^**'
in his cowefinale,
crfalnal *«K*i*-«3 riShta
aa. the to have
&w_ent aZ
Court
of a^ab «nd th© T*m® Court o£ Crloiroa JW<*lfi hae been 'alKwinu o_ with
e*pn_a permission to 6\S ^inco early in 2014 oh the recoxti.
Pleaee return the obnUcatad l*ifouL dwaieenttf- to ne as soon as possible.
, «itffrmit.tv«ly, allow Ma. Kay Whitsitt to personally eooe to AS to yic*
% ^i confi^cateo. naterxala and I will u*ko otHer orranvf«manto to «etV.
mrtm's legal ooceaanta filed for him. .
ltwfcfe you foi- your aaslatoAca and co-operation in this matter.
cc; jbel^oata, cieQ, JLttiaX^ c«roi tone aatlay, Clerh,
Tssas 02urt of Criminal l&paaia ^)C^ uinth Court of Appeals f
Texas Department of Criminal Justice OFFICE USE ONLY
Grievance#: QO/f) <3t//f )tf]
CTTTO t OFFENDER Date Received: / r /W-/^/
»3 1 rLi 1 GRIEVANCE FORM
Date Due: I(7^'M^" JH
Grievance Code: •~^CJ I
Offender Name: Paul James Koumjian TDCJ # 1039181 Investigator ID #: ~w?
Unit: &K Housing Assignment: 3 C 25 B Extension Date: ^-P)U~M
Unit where incident occurred: AH
Date Retd to Offendi
jp64 2Ptt
You musttry to resolve yourproblem with a staffmember before you submit a formal complaint Theonly exception is when
appealing the results of a disciplinary hearing.
Whodid youtalkto (name, title)? Ma. Hauqht AH mailrooai supervisor; (byphone) When? About, 11/1Q/14-;
„„ :, . 0 Ms. naught told Ms. Whitsitt she:cannot: send me ANYTHING, FROM'-ANOTHER.
What was their response? .IWMATS.S ^MDIfciG CRIMNAL-^^^^^tticill^ , - — ~^—
Whataction wastaken? Unknown - appeal of contraband decision; pending
State your grievance inthe space provided. Please state who, what, when, where and the disciplinary case number ifappropriate
Qn 11/04/14/ at the Hughes Unit mailroom/ I was told Ms. Hauqht : the Supervisor
had declared legal material's sent to me throught the United States postal Service
~was—being—declared "cunLiaband"—because it. •"beluuyed" Lu anuLIier uffender. I putsued
the appeal process at that time. First, this legal material belongs to ME, not "another
offender" regardless of,what^Ms,., jiaughtaft READ IN THE CORRESPONDENCE/ LEGAL DOCUMENTS.
(Please note that Leddi't-ig-: Ihiiiate'cor^espbrideiice is prohibited, without, pile* written
approval of a warden;,;wMch was not, doheThere', and then only for a crime or TDCJ rule
violation neither of which were cited' in the contraband confiscation papers, since
"having legal documents—from—criminal—cases—other than one's own is NOT a TDCJ rule
violation) Second,, these legal documents were sent to me from Attorney at. Law Mr. Walter
W-lBdydl.-Jt-./ State Bar No.02782000, 202 Travis, Suite 208, Houston, Texas 77002, direct
fium his legal assistant, Kay whitsiLL, 7260 cr 4710, Larue, Texas 75770 (903)675-334b.
According to Ms. Whitsitt, it seems Ms. Haught only was familiar with Ms. Whitsitt
being a "booseller", but not familiar \Vitlvthe fact that she is Attorney Boyd's legal
assisLanL. Third,—Mrv Boyd,—Ms-:—Whitsitt
Pis-:—Whitsitt arid—I am all under a deadline ul December
2/2014 which has been ___—impossible 'by this imprior legal documents confiscati o n
event. The Texas Court of Criminal Appeals has granted us a time extension because
"of—Litis specific Improper—confiscation event.—we would appreciate it a great deal.,
if Ms. Haught—Of—the AH mailroom would please return 1-he ronfiseated legal dnmm^ni-*
to me ASAP in order to prevent any further .complication of a straghtforward issue of
simple human error Thank you. :—••
1-127 Front (Revised 11-2010) YOUR SIGNATURE IS REQUIRED ON BACK OF THIS FORM (OVER)
T
Appendix F
N(>\\"A OFFICE USE ONLY
Texas Department of Criminal Justice Grievance#:^2___^2_^L
UGI Reed Date
STEP 2 OFFENDER HQ Reed Date:
GRIEVANCE FORM
Offender Name: Paul James Koumjian TDCJ # 1039181
Date Due:
3
Grievance Code:
Unit: ..^...... Housing Assignment: 3 c 25 B Investigator ID#:
Unit where incident occurred: m Extension Date:
You must attach the completed Step 1 Grievance that has been signed by the Warden foryour Step 2 appeal to be
accepted. You may not appeal toStep 2 with a Step 1 that has been returned unprocessed.
Give_reason for appeal (Be Specific). / am dissatisfied with the response atStep 1 because...
The Step 1 response did not respond to my claims, of confiscating legal materials
sent to me in the mail. The response did not even address the issue of the confiscation
event and it's improper basis. Note that there is no allegation of a crime or a rule
violation being committed here. The Step 1 response's claim that "the mailroom cannot
~be used as a third party" is senseless. The mailroom acts as a party to delivery of the
mail daily. Ianaunot communicating with another inmate at all. I am only receiving legal
materials from a civilian in the outside world which is a legitimate exercise of my First
Amendment rights to Free Speech. So exactly how is the mailroom being used as a third
party, and how is that unstated basis for confiscation of my legal materials .constitute a
crime of? TDCJ rule violations, which is the only reason mailroom staff can, read corres-
pondence. r7... 7 7 : "" ——
Without an accusation of criminal conduct (there is none here) or of a TDCJ
rule violation (it is not a rule violations to receive legal material from a legitimate
citizen on the outside, regardless of the subject matter of the contents), there was no
• ——= . J^i
reason for taking my legal materials. Please return them. These legal materials coKEiscat-
ed without Due Process by being read for content and determined to violate some{unstated
TDCJ rule, without being authorized by a TDCJ warden or his designeee to be read, cost
3
at least*196.00 to reproduce..for me. Should I be deprived of filing them at the time
I!11 be allowed by the Texas Court of Criminal Appeals to file" them, please advise me who
wants to pay that bill? ASSistant Warden Armstrong? Mailroom supervisor Haught? Or perhaps
this Step 2 reviewer? Please immediately return these confiscated legal materials for
being confiscatedbased on no evidence of a crime or TDCJ rule violations being commit-t-ed
so p
1-128 Front (Revised 11-2010) YOUR SIGNAT UREIIS REQUIRED ON BAtKOF- Thereafter
limited power of attornev L+Z™- aff*davit gating Paul James Koumjian
my b^alt^^cJ^^^^S^ ™ t0 ?"? any leg?I *«u_»ti on
Cause Number 12^3^04*^ ™Se^^^^ COUnty
Power of Attornev) On 2- ^ZZ *ct-f23eRr23'2014 notarized, sworn, Limited
ified w Ss cSic^^c_rf^h4/aonPaui jaroes Koumjian was **-
___r~^E^23*S5
Martin in thelSt^t case S AtfSTHS •? "^T °"ender"< *•«•' «*•
Form" offender «_v) Xffl 2! Att;7(I~153 Correspondenee/Contraband Denial
work don^ay^ ** «*" ~sult of copying
£cSuref^ 2T5'^S_S
J^tbetereKperrencethat Martin's pleadings and exhibits will be r£rS
December
Court and 2nd, 284 SeeCourt
the beaumont m.sSitten
of AppSlJNoS to MafXoS* f*3"?8 **this°f
Mailroom Supervxsor,
to thflourJ^n^^irundL1^?^
internet ^^ °therRules,
at »hr?n^S?; Under TDCJ Correspondence irHnateSpublished
le^al *******
on the
Sf»af
dence SffeS^^
Rules) rS^fSf^r Handbook' Chapter 3(Uniform Offender Correspon-
S^ ,nd 4(°«ender Access to the Courts, Counsel and Public Officials
Rules), inmates may correspond with as many persons as he chooses and "with
other prisoners about legal matters", id., CorrR 39 lis ?ST? n!5 J?
^_^2_, _sss _ z»£^°~z££
shall inspection for contraband be deemed to require the SL_nS^_S____
NOV 07 201if
s
-_-•
M
•_iIda_°__«rSh tELa.Si£oo,-,rss to Courts *—•- ~J «tt_
sr-s _a_*HsLr?^r?--*s gs_tk»
_vs_-. iSP r -?___2-j__g__S! sk
id., UAC RulS? _f^B'i' Wf^™^^ and ... may not te read."
assist saeh other «*S. l^ai^ttS^^ASes^axt^B f^ •£
SH3_SS__f?? ^—£_-_£
officSTunS^SSSccSnl^T t0 C°UrtS ^^ ace ^^ "P°" Prison
WSOHcitations and suta.hist.oWted). additionally, _ Sto to Si
____£^s is -"-10S0-" "-ein. Petitioner is prSeeSS T^loS
S*S ^L _J 5u *"? .P"1^0563 of harassment or delay of the Court or the
SS of afSfit
CENT of at least of T^T
one of Wil1 and
the charges, Sh°Wwas
^ only
C°Urt that hebyisway
convicted A^LLY INnS
of suppres
sed evidence, false testimony, failure to correct perjury when it aSSSd
and other fundamental structural error exposing fmisSrri^e of teS
«an IffSS^E*!? W3
affir®aw«_ on May 21,2014, T13^-
rehearing *•
denied
sideration overruled on September 4th,2014.
COU^ °f
on July -PPeal^isiriS
24,2014, en banc con
"*>*ha, en banc con-
-3-
[{>-*>
PRAYER
£i-ecer aS"S?iP?
3ames martin s legal documentsss?=-r__ _^«skS
to Paul James Koumjian forthwith.
CERTIFICATE OF SERVICE
<„*•„ * certifv and *ffirm Placing a true and correct copy of this instrument
As^t da priT
Ass tD.A. m charge"^J*0* thiS dayW.NoVeinber
of appeal,207 Phillips5'2015 «*-«2eS
St. Conroe, to SLS^SS?
Tx.77301?
Respectfully Submitted
Peter James Martin, #1846003,
Hughes Unit, Rt.2, Box 4400
Gatesville, Texas 76597
-V-
OFFICIAL^NOTICE j: ROM COURT OF CR[MINAL APPEALS OF TI-'V *.« ™- ECOPY
:afitoi, sta:mois, Austin. -;exas 78711'
12/1802014
MARTIN PETER JJ flES Tr, Ot. No. 12,I)3.02604..CR rU.W5U 14
Ch this ctay,.*.* Court has derued the Appellant's Pro Se -Motion To PD-i[|'5C-14
Ore f1 Si
To Return Confiscate.:! Documents to App.-i»flan;t:"
Ab«IAcoshs: Clerk
PETER JAMES MARTIN
MICHAEL UNIT - TDC# 1846003
2&:4 FM 2051.
TENNESSEE COLONY, "X 75886
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS FILE COPY
P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711
12/31/2014 • x . t COA No. 09-13-00180-CR
MARTIN, PETER JAMES Tr. Ct.- NoCl 2-03-02604-CR PD-1050-14
The appellant's pro se petition for discretionary review has this day been received
and filed. ^ s