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IN THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
IN CAUSE NO. CR21120-A
EX PARTE § ON APPEAL FROM THE 35TH
GAR? DON BEASON § JUDICIAL DISTRICT COURT
§ OF BROWN COUNTY, TEXAS
MOTION TO REBUT APPEAL ATTORNEY'S AFFIDAVIT
COMES NOW, GARY DON BEASON, Applicant in the foregoing
cause and wouldi.show M the Court that: Appeal Attorney Nathan
Butler filed his response to the Court's order via affidavit
on January 5th, 2015.
Applicant did not recieve his copy until January 21st,
2015. 15 days after his certification that said affidavit was
mailed on January 5th, 2015.
Applicant herein asserts that Appellant Attorney claims
applicant was given an exact copy of the indictment on file,
and that he was present at hearing when Court ordered such
amendment.
The record will not support Applicant was ever at hearing,
or was notified of such amendment, until August 8th, 2011 at
pretrial hearing where he waived his right to counsel. The
Court read from the docket and stated that an amendment was
done. (R.R., Vol.4, P.10).
The Court Clerk's supplemental record, which Applicant
recieved from his Direct Appeal Attorney during the direct Appeal
stage, does contain a motion submitted on February 1st, 2011
by the State's Attorney requesting leave to amend.
And, an order by the Court signed gfcoruary 7th, which says:
"After notice feu Q^Li}n-&UirLO . . . " but defendant was never at hear
ing or notified by Court Clerk or his attorney of record at
that time.
The record- will reflect- that Attorney of record at that
time- was Attorney Judson Wobdley; who was- removed on May 31st,
2011 due to conflict as he also represented Applicant's wife
and niece, that were co-defendants and State's witnesses against
him.
Appellant Attorney's claim that Applicant was given an
exact copy of indictment on record is false, and his legal
argument is moot.
The Court of Criminal Appeals held in Aguilar v. State, 846
S.W.2d 318 (1993), once indictment is challenged via motion
to quash,• if defendant does not prevail at Court, it becomes
first requirement on Appeal, (paraphrased). Therefore Appellant
Attorney was prejudicially ineffective on appeal.
Applicant preserved the error according to Studor v. State,
799 S-W.2d 263 (Tex.Crim.App-1990), quoted in Aguilar v. State,
846 S.W.2d 318 (Tex.Crim.App.1993) and Art-1.14(b) of the Texas
Code of Criminal Procedure.
See also Applicant's rebut to State's response in this
same cause.
2.
Respectfully submitted,
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