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ISH7-W
OR!
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
~"AUSTIN, TEXAS
FILED IN
COURT OF CRIMINAL APPEALS
COURT OF APPEALS
APR 17 2015
FOUR|PE&gT"H JUDICIAL
HOUSTON,TEXAS
Abel Acosta, Clerk
CAUSE #01-09-00193-CR
GERALD ALAN HAYES/APPELLANT
VS.
STATE OF TEXAS, APPELLEE
PETITION FOR DISCRETIONARY REVIEW
ORAL ARGUMENTS REQUESTED
RECEIVED IN
f^SSoFcmm. appeals
APR 16 2015
sta,
IDENTITY OF PARTIES AND COUNSEL
APPELLANT Gerald Allen Hayes
TDCJ NUMBER 1578806
Mark W.Ellis Unit
1697 Farm to Market Road 980
Huntsville, Texas 77343
DEFENSE COUNSEL AT TRIAL Appellant prose
STAND 9* COUNSEL
Allen Isbell
202 Travis Street, Suite 208
Houston, Texas 77002
PROSECUTORS AT TRIAL Alison Baimbridge
Assistant DistrictAttorney
HARRIS COUNTY DISTRICT
ATTORNEY'S OFFICE
1201 Franklin Street, 6th Floor
Houston, Texas 77002
PRESIDING JUDGE The Honorable Mark Kent Ellis
351ST DISTRICT COURT
1201 Franklin Street, 14th Floor
Houston, Texas 77002
APPELLANT'S COUNSEL Franklin G. Bynum
Assistant Public Defender
HARRIS COUNTY PUBLIC
DEFENDER'S OFFICE
1201 Franklin Street, 13th Floor
Houston, Texas 77002
APPELLANT pro gie—appointed
U
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL
INDEX OF AUTHORITIES
STATEMENTS REGARDING ORAL ARGUMENT
STATEMENTS OF THE CASE
STATEMENTS OF PROCEDURAL HISTORY 3
•H
STATEMENT OF THE QUESTIONS
ARGUMENTS
15
PRAYER FOR RELIEF
CERFIFICATE OF SERVICE
DECLARATION
APPENDIX
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INDEX OF AUTHORITIES
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held. •
Appellant Hayes, pro se, timelv filed direct appeal brief on
^pT, liJWland adopted Scott Ramsey's Briefing, COA ordered prose
counsel removed and struck filed brief on ^maJBv 2012., a3ainst the.
wished and objections— no hearings held—objections denied(COA D£n><
>
Motion to have new appointed counsel Franklin Bynum removed-denie^j
State Bar Grievance filed against Franklin Bynum at his request.
Bynum filed Ander's brief on April 9,2013 and Pro Se Response to
Ander's timely fied and supplement to Response
Court of Appeals affirmed Appellant conviction and Ander's brief
on OckX.'Z a^/freconsideration filed and denied.
Appellant now comes before this Court filing PDR pursuant
TEXR. APP.P 68.
I
STATEMENT OF PROCEDURAL ^iSTORY
,9,0 £W\ of A?^_ 4«s<^W, D//tog -fo Appellate, SQ^reo^eMahbn.
Whether the Court of Appeals erred in concluding the record
was wholly frivolous and no arquable ground exist for appeal,
(slip op at 2-3)
ARGUMENT
As a threshold matter, Appellate counsel filed an Anders
brief on April 9,2013 alleqinq that pro se litiqant created a re
cord that completely devoid of any non-frivolous issues.(fenders 18)
claiminq only one issue raised by Allen Isbell.(11RR:107)
Appellant filed a pro se response,supplement and reconsidera
tion, all addressinq reversible errors pursuant T.R.AP. 44^2(^a^b^
and T.R.A.P. 33.1 (la, 2 a,b) on 4/9/2013,5/9/2013, 6/3/2013, with
factual and evidentiary challenged, record claims that should had
been permitted to be litiqated on direct appeal. Ex parte Garder
959S.W.189,198-200(TEXCRAPP1998) Response focused on same issues
previously brief and filed by attorney Scott Ramey Dec. 14,2010
and pro se brief Sept. 12,2012. (see: filed briefs)
The COA should had denied counsel's certification of merit-
lessness appeal since the record support several arquable claims.
Bynum's brief did not aduquately address the COA attention on the
arquable claims that were evident from the prior (2) briefinqs.
(See; Appendix) The appellant was deprived of constitutional
adequate representation on appeal by Court of Appeal's affirminq
of trial court judgment as prescribed in the Ander's brief,
counsel's Anders brief failed to satify the standard when it fail
ed to refer to ANYTHING IN THE RECORD THAT MIGHT ARUGABLEY SUPPOR
THE APPEAL. A_nders_ 386U .S .at 744 The seperate inauirv by COA
of the record was flawed when considering the appeal in the merit
the proceedinq is frivolous when it lacks an arquable basis eitheft
b
in law or in fact. Johnson v. Lynauqh 796 S.W.2d 705,766 (1990)
The Appellate counsel and Court of Appeals erred in its failure
to determine that (2) suppression hearinqs —Hearing for Bill of
exception conducted by Mr Ramsev and Hearing for Motion for New
Trial , all within the record did.not constitute arquable and
preserved points of error. The Court overruling of pretrial
motion to suppress evidence preserve the error on appeal. Brown
v. State 183 S.W.3d 728,741 (TXAPPlst 2005) The pending issues
and objections addressed in these hearings were U.S. Constitution
violations such as suppression of illegal obtained evidence(SX4-8^
impermissible suqqestive ID procedures incourt/out of court that
are protected under Due Process of Law US v. Rodqers 126F3d 655
658 (5thcir), Brady violation and Discovery order violations by
ADA .airbridge. frriM^^Wn^MH,^^ "ESP^
How could the Court of Appeal -afford a meaningful review of
the record if blant error and abuses of trial court litter to
record as follows:
estate admitted evidence (SX4-10), over defendant objection
this evidence was diouted and claimed to had been illegally ob
tained violatinq the search and seizure expection of privacy
right within the Fourth Amendment.._U.SCA. see-^Chadawick 433US at
15 97S.CT 247 (10RR:154,165,190-192) these items would become the
cornerstone of the States case and violate Brad^ and the discovery
order .(RR:MNT: 36 :3-9 ) (pretrial objection Feb 13 2009") CCOilO!)
(Defendant)' Ofay. Qnd thco+her thnj btwa nttf Jrfdau.Tp
i&.k the thiei proSautoA has ntustd^oComply wMthco/'Swrtr/
Cind in On attempt -jo mt i}$itm5 to tMs/t/t the defense an>*Hapftctrs ttit
D-A has trfldt cttlilerah decision not-to Comply t/ui-fh 4M ofotovcryoroltr
dndalsc to Actmalic lootsty -fowro/s mt, andTCanp/ove e\/iJe/7ce
ofMottSpec/fiectl// on (Mctmltr t/; ujtienXouas^, (Sitytffclz i$)
Sgt. Ryza confiscated search and a luqqaqe duffle baq without
warrant containinq personal items of defendant (SX :5-7 )<, claiminq
an incident to the arrest althouqh there was never probable cause
to search inside the luqqaqe without a warrant. The prosecutor
repeatedly offered the illeqally obtained clothing to match a
general discription of clothes worn by the suspect: ,f Does it
look like. ..((10RR:105:18-25,RR;104-106) Sq-t Ryza agreed the
clothinq were only similar but no proof of exactness(11RR:25-26)
and possession not unusal (10RR:202-203)
The State had waived the existence of these items seized durinq t
the suppression hearinq Dec.11 2008 (MOTION ILLEGALLY SEIZED EVID_.
CR:I/II213,CR:I/IV:391)
Court; Do ya all have any evidence seized for the defendan
that you intend to use at trial .
State: No. (RR:mosupp:4:23-25)
The Court of Appeals erred by not reviewing suppression pursuant
bifurcated standard of review. Carmouche v. State 105 S.W.3d 323
327 (TXCRIMAP 2000) The historical fact are in dispute or not
review in full violating TXC.C.P. 3&-__3 and not give a jury instr
uction TKa. Ani*Jbg^*> f^(Hk A^d^^Jot^^^ **<*
Impermissible sugqestiveness tainted incourt/out court ID
procedure during multiple occasion. Guzman v. State 955S.W.2d
85,89, (TXCRIMAPP,1997) I , + «=s lv.oi*S5*»^
These incident demonstrate by clear and convincinq evidence that
the trial identification was irreparbly tainted . Neil v.Bigger
409 US 188
tf The Motion for New Trial Hearing preserved the reversal 2I: r.
claim for Brady and discovery violations. Contrary to the COA
previos rulings and USCA. Walker v. State 321 S.W.3d 18 (TXAPP
Houslst2009)
Defense: from June2008 until you tookover this case until
(2) days before trial you have could have ascertain
ed the existence of this evidence, right , you
could have found out whether it was there and what
it was.
ADA: Sure if he asked me to.
Q: That's not my question, you yourself as prosecutor could
have?
A: s~ure:~yes " s i r .
Q; you did not.
A: I did not. (RR:MNT:22:1-4)
ADA Baimbridqe was negliqent and unaware of actual evidence ob
tained by law enforcement(CR:213)
Defense: ...did you make any effort to contact him(Ryza)
about what evidence he had in his possession and
what evidence was in possession of the HPD.
ADA: Besides the evidence that I already had,., nno sir
(RRMN1T:19:7/12
Evidence willfully withheld should be excluded . Hoi 1owjll v.
State 571 S.W.2d 179,180 (TXCRIMAP, 1978)
• The appellate record prevail on a claim of ineffective
assistance of counsel by Allen Isbell as both trial and standby
counsel7. The record is developed by a preponderance of the evid
ence for both (2) prongs of Strickland v. Washinqton 466US 668,
686 (1984) The trial court caused inherent diffuculties and un
reasonable prejudice by the restraints on pro se counsel and
appointed standby counsel. The trial court ensured that defendant"
would be denied rights of assistance necessary to justify reliance,
on the outcome of the proceedinqs and a fundamental error of
such siqnificants that effects the verdict and subject to automattc-
8
reversal by the Court of Appeal. Mitchell 68S.W.3d 640,640 ;
(TXCRINAPP 2002) The Appellant contends the record is adequate
to address cliams of ineffectiveness. Scheanette v. State
144 S.W.3d 503,510 (TXCRIM AP 2004)
.# The Court of Appeal erred in it decision bv conflicting with
U.S. Constitutional due process rights and applicable ruling from
the Texas Court Of Criminal Appeals by rulinq the record wholly
frivolous and no arguable grounds although the trial court imposed
a unconstitutional "standby and wait" rule , so the pro se defend
ant was forbidden to consult with standby counsel at any time.
TC: StRpJdby and wait if you decide youwnat him to represent
you.(RRSUPPL:10:10-16)
Standby and wfljt until you come to your senses. (7RR:9)/
(RRSUPPL:11:1-5)Cfeb. 13 2009 pretrial h.1
The new trial hearing preserved the issue for appellat review:
Defense: And the Judge advised him-Mr. hayes--clearly that
that is he choose to represent himself he could not.
question or consult with Mr. Isbell, is that corret
ti
ADA: Almost everytime he was on the docket... You are not
entitled to speak with Mr. Isbell. .\RRMNT:50-51)
NOT ENTITLED: The Appellant argues that this denial to consult
orbe advised during critial stages of trial-guilt-innocence,
violates his rights under Art.I sec 9 Texas Const, and Tex.Code
Crim.P 1.051 (h) Faretta right$ are not infringed when standby
counsel assist in defendant "overcoming rountine procedural or
evidentiary obstacles, nor are thev infringed when counsel merely
helps to ensure the defendant compliance basis rules of courtroom
protocol. "Literally going to be sitting in the courtroom, stand-
by-that's the concept...he does not represent you and has no lega^
obligation to the case.(6RR:7)
<\
9 The Court of Appeal erred in the application of law to facts
pertaining to theleqal sufficiency of the evidence applying the
Jackson Standard. Jackson v. Virginia 443U.S.307,319nl2 (1979)
The jury was not rationally justified in finding that Appellant
was guilty of the lesser-included robbery-pellet gun.
The Appellate Court should had found with some, objective
basis in the record, that the great weight and preponderence of
evidence contradicts the verdict of Robbery-Pellet gun. Watson., v.
State 204 S.W.3d 404,415 (TXCRIM APP 2006) Grotti v. State 273
S.W.3d 273,288 (2008) Here the State failed to prove beyowtfd a
reasonable doubt that appellant committed robbery by using or
exhibiting a pellet gun. If a pellet-gun was used in the course •
of so doing, preponderance of evidence would constitute Agg.
Robbery TEX.PEN.CD. 29.03 Complaiant, Allen Scroggins testifed
gun was in his waistband(10RR:109,113-114)althouqh it was never
seen in SX photos and never found,removed or pinted(10RR:127)
no verbal threats made. States closinq arqumentemphasised the
theory that a semiautomatic handqun was tucked in his waistband.
(HRR:120:18-23) but the theory is based on a "bulge"(11RR:121 :23
State: Do you have any prooff of that? The only proof
you have is that it was found in his —hotel room...
(ref. to pellet gun 11RR:124:14-17)
The due process attached to legal sufficiency requires that
the State provide proof beyound a reasonable doubt of every
element of the crime charqed. Since Robbery 29.02 PEN.CD involve
a two part analysis , the evidence fails to demonstrate that de
fendant "caused bodily injury,.?thfeatened + -"-or:-placed:another in
10
fear of IMMINENT FEAR bodily injury or death while in the course
of committing theft." there is reasonable doubt as to the element"
IMMINENT FEAROF BODILY INJURY OR DEATH certainly if the robbery
was executed with a pellet qunand a lack of any physical inter
action between victim and the defendant . Harper V State 675 SW2
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