PD-1221-15
RECEIVEC...
CCA NO. PD- -15
COA NO. 05-13-01199-CK- SEP 18 2015
PETER PHUC HONG TRAN § IN THE COURT OF „ A««o»« ™ •
§ •Abel Acosta, Ctern-
VS. § CRIMINAL APPEALS OF TEXAS
§
THE STATE OF TEXAS § AT AUSTIN, TEXAS
APPELLANT'S PRO SE MOTION FOR EXTENSION OF TIME TO FILE HIS PDR AND
MOTION TO SUSPEND RULE 9.3(b)(1) AND RULE 68.4(1) IN ORDER TO FILES
ONLY THE ONE ORIGINAL OF THE PRO SE PDR WITHOUT A COPY OF THE COA OPINION
TO THE HONORBALE JUDGES OF THIS COURT:
Appellant, Peter Phuc Hong Tran's, Petition for Discretionary
Review ("PDR") is due Deptember 11, 2015. Nevertheless, Appellant
has until atleast September 26, 2015 to request an extension
of time to file his PDR. See, Tex. R. App. Proc, Rule 68.2(c).
Appellant request an extension of 90 days, or until December 11, 2015
FILED IN
to prepare and file his PRO SE PDR. Appellant also ask t^T OF CRIMINAL APPEAL
Court to allow him to file only the one original of his PRO SE„p_ ioofifK
PDR and to 4e- file the PDR without a copy of the opinion from
the court of appeals ("COA"). See, Tex. R. App. Proc, Rule 2.
The 5th District Court of Appeals issued its Opinion in
this case on August 11, 2015. The COA, case number was 05-13-01199-CR
and styled Peter Phuc Hong Tran v. The State of Texas. This
case is an appeal from Cause No. 296-81478-2012 out of the 296th
District Court of Collin County, Texas. NO motions for rehearing
were filed in the COA.
Appellant is now indigent and incarcerated, having to proceed
PRO SE because he can not afford to hire an attorney to prepapre
and file a PDR on his behalf. Being in prison, TDCJ limits Appellant's
access to the Law Library, to computers, and to copy machines.
Appellant is only allowed 10 hours a week of access to the Law
Library. This is not much time for a lay appellant to learn
the law. Especially when TDCJ only permits'access to three (3)
"new" court opinions a day that must be downloaded and printed
out by staff from a computer system. Moreover, Appelant has
no abilty to type his PRO SE PDR on a computer nor to make any
photo copies of his. PRO SE PDR or the COA Opinion.
Appellant's sole claim on appeal concerned the leagl sifficiency
of the evidence. Thus, it is vital that Appellant, acting,PRO SE,
RaVe access to the appellate record. On direct appeal Appellant
had retained appellate counsel and the appellate record was "paid"
for by Appellant. As such, appellant counsel was furnished a
copy of the appellaaterecord. Appellant "owns" that copy of
the appella^St^record, not counsel, which is keep in Appellant's
file held by counsel. See, State Bar of Texas, Rules of Professional
Conduct, Rule 1.15(d). Appellant is entitled to have counsel
give him the file and the appellafiffe# record. See, Maxwell v.
Florida, 479 U.S. 972, 93 L.Ed.2d 418, 420 (1986); Spivey v.
Zant, 683 F.2d 881, 885 (5th Cir. 1982); In Re George, 28 S.W.3d 511,
516 (Tex.2000). Appellant's family has made numerous attempts
to contact appellate counsel, all to no avail. Appellant has
mailed a letter to counsel requesting the file and thecppellate
record. If counsel does not respond, Appellant plans to seek
assistance from the State Bar of Texas in obatining his file
held by counsel.
There are signficant issues that need to be raised in the
PDR, to include,:
HGROUND ONE: BY ITS VERDICT THE JURY REJECTED THAT THE
MURDER WAS COMITTED BY APPELLANT IN THE COURSE OF A ROBBERY;
THUS, THE COURT OF APPEALS ERRED IN NOT DEFERING TO THAT
FINDING OF THE JURY WHEN .THE COURT OF APPEALS RELIED UPON
APPELLANT'S DEBT AND NEED FOR MONEY AS A "MOTIVE" FOR THE
MURDER (IN ORDER TO HOLD THE EVIDENCE WAS.LEGALLY SUFFICIENT
TO SUPPORT THE CONVICTION).
%
GROUND TWO: THE COURT OF APPEALS ERRED IN FOLLOWING INFERNECES
THAT SUPPORTED THE VERDICT WITHOUT FIRST DETERMINING WHETHER
THOSE INFERENCES WERE REASONABLE BY CONSIDERING ALL THE
EVIDENCE ADMITTED AT TRIAL; SUCH AS, THE STACKED. INFERENCES
THAT BECAUSE APPELLANT MOVED OUT OF TOWN WHILE THE INVESTIGATION
WAS ON GOING MEANT THAT APPELLANT COMMITED THE MURDER,WITHOUT
CONSIDERING THAT ONLY MOVED AFTER VOLUNTARILY ASSISTING POLICE
AND BEING TOLD HE WAS NOT A SUSPECT, APPELLANT ACTUALLY
RETURNED FROM OUT OF TOWN TO ASSIST POLICE, APPELLANT WAS
ORIGINALLY FROM OUT OF TOWN, AND THE POLICE"KNEW WHERE APPELLANT
WAS AT ALL TIMES.
GROUND THREE: THE COURT OF APPEALS FAILED TO CONSIDER THE
COMBINED AND CUMULATIVE FORCE OF ALL THE EVIDENCE WHEN^IN
ADDITIONA TO NOT REVIEWING ALL THE EVIDENCE ABOUT THE MOVE,
THE COURT ALSO DID NOT CONSIDER THAT, THE PHYSICAL EVIDENCE
SUPPORTED APPELANT'S STATEMENTS TO POLICE, THAT NO FORENSIC
EVIDENCE CONNECTED APPELLANT TO THE MURDER, THAT APPELLANT
HAD NO SCATCHES OR WOUNDS ON HIS BODY, THAT AMOUNGST OTHER
EVIDENCE NOT SUBBITTED FOR FORENSIC TESTING WAS A HAIR IN
A BLODD STAIN AT THE CRIME SCENCE, THAT OTHER ITEMS MISSING
FROM THE CRIME SCENCE WERE NEVER CONNECTED TO EVER BEING
IN APPELLANT'S POSSESSION, AND THAT THE COMPLAINTANT WAS
"JEALOUS" OF ANOTHER SUSPECTS RELATIONSHIP WITH ANOTHER
MAN; BASED UPON THE COMBINED AND' CUMULATIVE FORGE OF ALL
THIS EVIDENCE IT WAS MORE SPECULATIVE THAN. INFERENCTIAL
FOR THE JURY AND THE COURT OF APPEALS TO CONCLUDE THAT APPELLANT
COMMITTED THE MURDER JUST BECAUSE APPELLANT WAS THE LAST
PERSON WITH THE COMPLAINTANT, APPELLANT HAD POSSESSION OF
THE COMPLAINTANT'S CELLPHONE AFTER THE MURDER AND DISCARDED
IT, APPELLANT MOVED AFTER THE MURDER, AND APPELLANT GAVE
INCONSISTENT (BUT EXPLAINED) STATEMENTS TO POLICE.
PRAYER
WHEREFORE, ALL CONSIDERED, PETER PHUC HONG TRAN, the Appellant,
acting PRO SE, PRAYS this Honorable Court GRANT this motion in
ALL things and therein,:
1) ORDER that Rule 9.3(b)(1) be suspended and allow Appellant
to file only the one orignal of his PRO SE PDR;
2) ORDER that Rule 68.4(i) be suspended and consider the
PDR without a copy of the COA Opinion in an APPENDIX; and,
3) GRANT an extension of time of 90 days, or until December 11,
2015 for Appellant to file his PRO SE PDR; or,
4) IN THE ALTERNATIVE, ORDER Brett Ordiway, Appelant's
appellate counsel, to provide Appellant his client file,
including the appellant record;
AND; AND ALL OTHER RELIEF THIS COURT FINDS PROPER IN THE INTREST
OF JUSTICE.
Respectfully _Sub
x -/^Cr
Peter Phuc Hong Tran
TDCJ No. 1868964
Hughes Unit
• • " Rt. 2, Box 4400
Gatesville, TX 76597
APPELLANT PRO SE
VERIFICATION BY INMATE DECLARATION
My name is Peter Phuc Hong Tran, my date of birth is (c/*(e/z>y
and my inmate identifying number, if any, is TDCJ No. 1868964.
I am presently incarcerated in the Hughes Unit of TDCJ-CID in
Gatesville, Coryell County, Texas, 76597. I declare under penalty
of perjury that the foregoing is true and correct.
EXECUTED on this the /5" day of Sgph^i^- _££0/S__.
Peter Phuc Hong Tran
Appellant PRO SE
CERTIFICATE OF SERVICE
I, Peter Phuc Hong Tran, certify that I have caused a copy *
of this motion to be mailed 1st Class USPS to the Collin County
District Attorney and the State Prosecuting Attorney on this the
1^ day of -£tpfg/ngg< , £ol£ .
x i^>^zz
Peter Phuc Hong Tran
Appellant PRO SE