Thomas, Joshua Jerrod

/S-?3-/5
CAUSE NO.

ORIGINAL
IN THE COURT OF CRIMINAL APPEALS

FOR THE STATE OF TEXAS

JOSHUA JERROD THOMAS
COURT OF CRIMINAL APPEALS
PETITIONER
OCT 16 2015
V.

THE STATE OF TEXAS

FROM THE NINTH COURT OF APPEALS , BEAUMONT , TEXAS FILED IN
CAUSE NO. 09-14-00220-CR COURT OF CRIMINAL APPEALS
OCT 16 2015
ON APPEAL FROM

Abel Acosta, Clerk
ORIGINAL TRIAL IN THE 252ND DISTRICT COURT , JEFFERSON COUNTY , TEXAS
TRIAL CAUSE NO. 11-12337

PETITION RESPECTFULLY SUBMITTED BY:

FOR

DISCRETIONARY

REVIEW
JOSHUA JERROD THOMAS
Petitioner
1931104
Beto Unit
1391 FM 3328
Tennessee, Colony, Tx. 75880
(903) 928-2217

appearing before this court

PRO-SE
 IDENTITY OF THE PARTIES

TRIAL COURT - 252ND DISTRICT COURT, JEFFERSON COUNTY, BEAUMONT, TEXAS
TRIAL CAUSE NO. 11-12337
TRIAL JUDGE - THE HONORABLE LINDSEY SCOTT, PRESIDING
PROSECUTORS ON THE TRIAL: RACHAEL GROVE, ASST. DIST. ATTY., JEFFERSON COUNTY, TX.
PERRY THOMAS , ASST. DIST.. ATTY., JEFFERSON COUNTY, TX.
BOB WORTHAM , DISTRICT ATTORNEY JEFFERSON COUNTY,SETX.
DEFENSE ATIYS. ON THE TRIAL: GAYLYN COOPER, LEAD DEFENSE. COUNSEL
CAROLYN WIEDENFELD, ASST. DEFENSE COUNSEL

APPELLATE COURT - NINTH COURT OF APPEALS, 1001 PEARL ST. BEAUMONT, TEXAS 77701
APPELLATE CAUSE NO. 09-14-00220-CR
APPELLATE PANEL - CHIEF JUSTICE STEVE McKETTHEN, JUSTICE CHARLES. KREGER, JUSTICE LEAWE JOHNSON
PROSECUTORS ON THE APPEAL: ANN MANES, ASST. DIST. ATTY., JEFFERSON COUNTY, TX.
BOB WORTHAM, DISTRICT ATTORNEY JEFFERSON COUNTY, TX.
OFFENSE ATEE. ON THE APPEAL: THOMAS J. BURBANK (FILED ANDERS BRIEF)

.TABLE. OF .CONTENTS

PAGE

IDENTITY OF THE PARTIES -------______ \_
TABLE OF CONTENTS ----------_____
i

INDEX OF AUTHORITIES ---------- _>r___i:L
STATEMENT REGARDING ORAL ARGUMENT - - - - - - - _..._•_ _ j_
STATEMENT OF THE CASE - - - - - - - - - ' _ _ _ _ _ i
STATEMENT OF PROCEDURAL HISTORY ------_-___ j
QUESTIONS PRESENTED FOR REVIEW - - - - - - - - - _ _ _ 2
ARGUMENT AND AUTHORITIES ---------____ 3_8
PRAYER / RELIEF REQUESTED - - - - - - - - - _ _ _ _ 8, 9
UNSWORN DECLARATION - - - - - - - - - ' _ _ _ _ _ 9
CERTIFICATE OF SERVICE -------______ 9
APPENDIX -----------______ xx
ATTACHMENT (COPY OF MEMORANDUM OPINION) -----____
 INDEX OF AUTHORITIES

CASE , PAGE

Alejandro v. State, 493 SW2d. 230 (CCA 1973) 7
Anderson v. State, 633 SW2d 851 (CCA 1988) -* 5
Bledsoe v. State, 178 SW3d 824,826 (CCA 2005) .4
Clark v. State, 717 SW2d 910 (CCA 1990) 5,.
Cooks v. State, 844 SW2d 697,722 (CCA 1992) ^ ;3
Cortez.v. State, 683 SW2d. 419 (CCA 1984) 7
Cox v. State, 931 SW2d 349,352 (App. 2 1996) 3
Davis v. State, 195 SW3d 311 (App. 14 2006) 8
Deck v. Missouri, 125 Set. 2007 (2005) 3,4
Estelle v. Williams, 96 Set. 1691 (1976) '3,4
Everest v. State, 707 Sw2d 638 (CCA 1984) 7
Ex Parte Slaton, 484 SW2d 102 (CCA 1972) 3
Granadus v. State, 85 SW3d 217 (CCA 2002) •.- 5
Gray v. State, 99 Tx.Crim. 305 268 SW 941,950 (CCA 1924). ,3-
Hammond v. State, 799 SW2d 741,749 (CCA 1990) , 7
Hart v. State, 581 SW2d 675,679 (CCA 1979) 7
Hawkins v. State, 67 SW3d 918 (CCA 2002) 7
Hawthorn v. State, 848 SW2d 101 (CCA 1992) 5
Hernandez v. State, 726 SW2d 53,57 (CCA 1986) 6
Illinois v. Allen, 90 Set. 1057 (1970) 4
Irving v. State, 573 SW2d 5 (CCA 1978) 7
Kyles v. Whitley, 115 Set. 1555 (1995) 6
Long v. State, 823 SW2d 259, 282-83 (CCA 1991) 3,4
Marquez v. State, 725 SW2d 217,229 (CCA 1987) 3,4
McKenzie v. State, 617 ?W2d 214 (CCA 1981) 7
Meneffee v. State, 614 SW2d 167 (CCA 1981) 7
Owen v. State, 656 SW2d 458 (CCA 1983) 7
Rompilla v. Beard, 125 Set. 2456 (2005) 6
Simms v. State, 127 SW3d 924,928 (App. 13 2004) 3
Strickland v. Washington, 104 Set 2052 (1984) 5,5"*
U.S. v. Durham, 287 F.3d. 1297 (CA 11 2002) 3,4
U.S. v. Escamilla, 666 F.2d. 126 (CA 5 1982) 7
U.S. v. Mayes, 158 F.3d. 1215,1225 (CA 11 1998) 3
Wiggins v. Smith, 123 Set. 2527 (2003) 6
Wiseman v. State, 223 SW3d 45 (App. 1 2006) 3
Wright v. State, 178 SW3d 905 (App. 14 2005) 7
UNITED STATES CONSTITUTION

USCA 6 6
USCA 14 3
Generally 8
TEXAS CONSTITUTION

Tx. Const. 1§10 5
Tx. Const. 5 § 13 5
Generally1 . 8
TEXAS RULES OF APPELLATE PROCEDURE

TRAP 44.2 4,5
TRAP 66.3 8
TEXAS CODE OF CRIMINAL PROCEDURE

Tx.Code Crim.Proc. 35.16 (a) 5
Tx.Code Crim.Proc. 35.16 (c) 5

ii

s@?p
 STATEMENT REGARDING ORAL ARGUMENT

Petitioner requests oral argument on Petition for Deicretionary review.
It is Petitioners sincere belief that oral argument may be helpful to support
and further clarify specific fact issues cited from the record of the underlying
trial proceedings, outline and present to this Court those matters which affected
the proceedings, but may lack complete disclosure from the record, and to allow
the Court of Appeals to gain direct knowledge from the Petitioner to assist
in resolving or answering questions raised from the pleadings.

STATEMENT OF THE' CASE'

The underlying case presented herein to this Honorable Court of Appeals
in this Petition for Discretionary Review is whether Petitioner,, J'ohsua Jerrod-
Thomas received due process and a fair and impartial trial, whether his fundamental
constitutional rights to same were violated, and whether the conviction and
sentence given to him should be reversed in lieu of such.
Petitioner strongly believes he did not have effective assistance of counsel
both at the trial level and on direct appeal, that the. record clearly contains
evidence of reversable errors and constitutional violations, which support the
grounds raised on appeal, and that Petitioner clearly cited and referenced cases
previosly decided by this Court of Appeals and the United States Supreme Court
which directly relate to and support Petitioners claims for relief.
Petitioner further believes that he made a sufficient showing and raised
and called into question legal and factual issues and supported same by specific
citings from the record - to require at a minimum the granting of an evidentiary
hearing by the Court of Appeals to further develop and expand the record on
same. Petitioner alleges that the Court of Appeals committed clear error and
abused their discretion in denying his direct appeal and in failing to provide
Petitioner with an opportunity and a forum to expand the record in support of
his grounds for relief and did abuse its discretion by not granting Petitioners
request for appointment of counsel who would provide him with effective assistance
for his direct appeal.

STATEMENT OF PROCEDURAL HISTORY

1. On September 9, 2015, the Ninth Court of Appeals, by decision of a three
Judge panel issued a memorandum opinion .denying Petitioners direct appeal
which is the basis of this Petition for Discretionary Review.
2. No motion for rehearing/rehearing Enbanc was filed or timely filed.
3. There was no ruling made regarding a rehearing/rehearing EnBanc.

page 1
 QUESTIONS PRESENTED FOR REVIEW

QUESTION NO. 1 Did the Court of Appeals err in denying Petitioners direct
appeal despite a showing from the record of prejudice and
harm of an unfair trial when the trial Court required
Petitioner to appear in leg restraints for the entire
trial and allowing him to appear in hand restraints durring
testimony at guilt/innocence phase and in failing to make
a finding in the record to justify same?

QUESTION NO. 2 Was the Court of Appeals decision to deny Petitioners
direct appeal despite the constitutional issues raised and
implied in Question #1 - in direct conflict with decisions
of this Court and the U.S. Supreme Court and a departure
from the accepted and usual judicial decisions on this
important question of State and Federal law and the rights
of the Petitioner?

QUESTION NO. 3 Did the Court of Appeals err when it denied Petitioner his
relief on direct appeal despite his showing in the record
that he was denied a fair and impartial trier of fact, and
thus a fair trial when the Trial Court allowed 2 jurists
to be impaneled despite demonstrating at voir dire they
could not follow the law and/or showed bias toward the
testimony of law-enforcement personell?

QUESTION NO. 4 Was the Court of Appeals decision to deny relief on the
constitutional issue raised in Question #3 in direct
conflict with decisions of this Court and the U.S. Supreme
Court and a departure from the accepted and usual judicial
decisions on this important question of State and Federal
law and a denial of Petitioners rights?

QUESTION NO. 5 did the Court of Appeals err by not granting direct Appeal
on the grounds of not having constitutionally effective
assistance of counsel by counsels failling to preserve
trial erors, allowing for errors raised in Questions 1 & 3
and failing to do a reasonably competent investigation
that was supported by specific, citations from the record
andlegal authority clear error and/or abuse of discretion?

QUESTION NO. 6 Did the Court of Appeals err by not granting relief or
holding an evidentiary hearing to further develop the
record on Petitioners ground for relief for Prosecutorial
Misconduct despite a showing from the record with specific
references and with support of legal citations for same?

QUESTION NO. 7 Was the Court of Appeals decision to deny the direct
Appeal on any of the constitutional grounds raised to
include its decision to not grant or hold an evidentiary
hearing to expand the record for same in direct conflict
with prior decisions of this Court and/or the U.S. Supreme
Court and a departure from thevaccepted and usual judicial
decisions on similar, important questions of State and
Federal law and an abuse of discretion and/or clear error
in denying Petitioners Ssis^oteapeta&nBBHKK' right to same?

page
 ARGUMENT AND AUTHORITIES

QUESTIONS 1 & 2 : Petitioner was required to wear leg restraints during his
entire trial (see: Trial Court Transcript [TCT] Vol.5 of 6 pg.
69, 2-9). It is well established that the use of "Shackles" is called for only in
rare circumstances Marquez v. State, 725 SW2d 217,229 (Tx.Crim.App. 1987). "The
Texas court of Criminal Appeals has long recognized the danger of allowing an
accused to be seen (or in the presence of) shackled by the jury," considering
it "obnoxious to the spirit of our laws and all ideas of justice", and only under
"rare exceptions" would this Court "consent for a conviction to stand". Gray v.
State, 99 Tx.Crim. 305 268 SW 941,950 (Tx.Crim.App. 1924). The Court in Gray
described and outlined such exceptions. In Petitioners case the trial Court
made no findings in the record consistent with accepted legal standards to require
him to be shackled for the trial, see: Simms v. State, 127 SW3d 924,928 (App.13 2004)
see also Cox v. State 931 SW2d 349,352 (App. 2 1996). In Long v. State, 823 SW2d
259,282-83 (Tx.Crim.App. 1991), this Court found that when the record does not
support use of shades or restraints it infringes on a defendants presumption of
innocence and is an abuse of discretion to do so. The record in this case shows
no findings to support use of shackles, and is silent as to any justification for
same. This silence by the Trial Judge is clear error. See: Cooks v. State, 844
SW2d 697,722 (Tx.Crim.App. 1992) and see also: Exparte. Slaton, 484 SW2d 102 (Tx.
Crim.App. 1972). In United States v. Mayes, 158 F.3d 1215,1225 (CA 11 1998), The
11th circuit court held that the mere "presence of shades and other physical
restraints on the defendant tends to erode the presumption of innocence". "The
presumption of innocence is an integral part of a criminal defendants right to
a fair trial", quoting Estelle v. Williams, 96 SCT. 1691 (1976). In addition
to shackles being used for the entire trial, Petitioner also appeared in Court
wearing hand restraints (cuffs) during the live testimony of 2 witnesses, (see:
TCT Vol.3, pg. 107, 23 through pg. 132, 12), (See also Brief on Appeal pgs. 18,19).
The U.S. Supreme Court held in Deck v. Missouri, 125 SCT. 2007 (2005) that it
violates a defendants due process rights to use visable restraints because of
their prejudicial effects. The 14th Ammendment guarantees criminal defendants the
right to a fair trial and the presumption of innocence until proven guilty. In
Wiseman v. State, 223 SW3d 45 (App. 1 2006) they held that a defendant who appears
in leg restraints and hand restraints fundamentally compromises his rights to
such presumptions and fairness, it impedes a defendants ability to effectively
communicate with his attorney, and it creates both a physical limitation with the
added psychological effects such as distraction and embarrasment confusing the
defendant. See also: U.S. v. Durham, 287 F.3d 1297 (CA 11 2002). In Durham, they
page 3
stated that other adverse effects include impairment of a defendants ability
to participate in his defense and take an active interest in the presentation
of his case. The Court of Appeals was required to review on direct Appeal as
to whether the district Court provided reasons on the record to require Petitioner
to appear in shackles, and to explain why he appeared in cuffs. ID. Durham. The
Court of Appeals was required by TRAP rule 44.2(a) to review such errors and conduct
a harm analysis - this was not done, which is an abuse of discretion on the part
of the Court of Appeals. The Appellate record shows that the Government failed to
demonstrate that Defendants defense was not harmed by such an impediment. It
is insufficient for the Court of Appeals to simply state in their opinion that the
Appeal is frivolous and no arguable grounds for appeal exist without making further
inquiries. The Governments response was simply the record is unclear. (States
Brief, pg. 7). If this is true, then the necessity of an evidentiary hearing
to further develop and expand the record - based on the Briefs and the record - was
indicated. In fact, the Court of Appeals never even addressed whether to held an
evidentiary hearing, instead focused on denying Petitioners request for new counsel.
The Court of Appeals further erred when it applied this Courts decision in Bledsoe
v. State, 178 SW3d 824,826 (Tx.Crim.App. 2005) as a blanket reason to not address
the merits of the issues raised in the Briefs. Further their decision to do so

conflicts with this Courts decisions in Long v. State and Marquez v. State and the
U.S. Supreme Court decisions in Illinois v. Allen, .90 SCT. 1057 (1970) and in
Deck v. Missouri and Estelle v. Williams regarding the constitutional implications
of Petitioners claims of 14th and 6th amendment violations, which are sufficient

to vacate his conviction and remand his case for a new trial. An expansion of
the record and a complete review of the merits of the issues on Appeal is indicated
in this case, requiring reversal and a remand for same. Durham ID.

QUESTIONS 3 & 4 : Here Petitioner alleges he was deprived of a fair trial by the
impaneling of 2 jurors who demonstrated at voir dire they
could not follow the law and/or would give preferential bias toward testimony
of law enforcement officials. (See: TCT Vol.2 pg. 56, 6-9; pg.59, 20-24, and
pg. 51, 18 through pg. 52, 25). Venireperson #23 became juror #8 Leola D. Murray.
(App.Rec. pg. 113,114), and sat on Petitioners jury for his trial, (see: Brief
pgs. 17,18). The other juror who showed bias towards police officer testimony was
not able to be identified from the record. Prejudice is presumed and shown from
the record that these jurors were not constitutionally impartial and to be part
of the trier of fact violated Petitioners right to a fair trial. This Court
has consistently held that a Panel which contains a Juror who demonstrates bias
and prejudice would render the trial as unfair and would warrant a reversal of

page 4
his conviction for that Juror serving on the Panel. See: Hawthorn v. State,
848 SW2d 101 (Tx.Crim.App. 1992). The district Court abused its discretion and
committed clear error by not following the law. Tx.Code.Crim.Proc. 35.16(c) para 2
clearly .states that Jurors, like Juror #8 "must be excused" bias exists as a
matter of law when a Juror admits he/she is biased. Tx.Code.Crim.Proc. 35.16(a)
para. 8. See: Clark v. State, 717 Sw2d 910 (Tx.Crim.App. 1990). See: also: Anderson
v. 'State, 633 SW2d 851 (Tx.Crim.App. 1988). An impartial Jury is mandatory.
Tx. Const. 1 § 10, Art. 5 § 13. A Juror who knowingly will not follow the law
(ie. consider 5 years) is a form of Juror misconduct which can result in a mistrial.
See: Granadus v. State, 85 SW3d 217 (Tx.Crim.App. 2002) The Court of Appeals
memorandum opinion denying the direct appeal clearly conflicts with this Courts
decisions on the same issue, the decision to not review or consider the merits

of this Appeal departs from the accepted and usual course of judicial review
and raises questions of State and federal law in such a way as to conflict with
applicable decisions of this Court and the U.S. Supreme Court - thus the Court of
abused its discretion and committed clear error by failing to consider the merits
of Petitioners Appeal, requiring a reversal for further considerations consistent
with the prior opinions of this Court and the laws of this State and the United
States. See also TRAP 44.2.

QUESTION NO. 5 : In this Question Petitioner alleges that the Court of Appeals
failure to consider the merits of his Ineffective Assistance

of Counsel claims was an abuse of discretion and clear error. Petitioner clearly
cited specific references to the record along with legal case citations to support
his claims here. Counsels failures encompassed a myriad of deprivations of
Petitioners 6th Amendment right to effective assistance. His failure to object
and/or preserve errors for review is one. The State in their Brief stated this
issue has no merit. (States Brief, pg.3), yet in thier very next sentence the
State identifies counsels failure to preserve error in not challenging the Array,
it writing, supported by affidavit. The State also verified that Defense Counsel
failed to preserve the error on the issue of cuffs/restraints at trial - which
represent Petitioners issues in questions #1 and #3 herein, Thus these issues are
are either valid on their face or attach here by Counsels failures, not to preserve
these errors as confirmed by the State. The trial Court never resolved the issue
regarding Venireperson #23 (Juror #8) for her impartiality and inability to follow
the law, in fact it further confirmed it. TCT Vol.2 pg.58, 5 through pg.60, 4).
The standards for reviewing Ineffective Assistance of Counsel Claims are found in
Strickland v. Washington, 104 SCT 2052 (1984).' This Court has consistently followed
Strickland. In addition to the issues of Improper Juror and Unconstitutional

page 5
 use of restraints, Counsel failed to do a reasonable investigation to review
facts, materials, and evidence to support a defense of his client. To rely on the
States evidence, PSI reports, and the like fell short- of the prevailing profession
standards . in murder cases.. See: Wiggens v. Smith, 123 SCT. 2527 (2003). In the
.instant case, here,. counsel failed to obtain ballistic reports, did not inquire as
to..why gun shot residue tests were not done, failed to obtain expert testimony-
en gun misfiring. '.He failed to obtain medical reports regarding life saving
efforts by EMS and the Port Arthur Fire Dept. and hospital personnel. Such
evidence was mitigating for both guilt/innocence and punishment phases of the
trial. He denied Petitioner the "raw materials" needed for his defense. See:

Rbmpilla v. Beard, 125 SCT. 2456 (2005). Counsels failure to investigate stemmed
from innattention, not strategical judgment. He denied his client the ability to
make informed choices amoung the possible defenses (ie; accident, manslauter).
Counsel presented a half-hearted case instead of developing and pursuing the most
powerful evidence for his client. Wigging @2530. Evidence material to to guilt
and punishment was excluded. See: Kyles v. Whitley, 115 SCT. 1555 (1995). Clearly
Strickland requires Counsel to make a reasonably complete investigation and Counsels
failure to do so was constitutionally unreasonable - thus his representation
fell below the accepted standards of reasonableness - making Counsels assistance
ineffective and in violation of Petitioners 6th amend, rights to same. Petitioner
presented specific instances from the record to support his claims, See: (Brief,
pgs. 15,16), including decisions of the U.S. Supreme Court and citing this Courts
decision in Hernandez v. State, 726 SW2d 53,57 (Tx.Crim.App. 1986) to support his
allegations. Petitioner avers that the Court of Appeals failure to consider
the merits of his claims of Ineffective Assistance of Counsel was an abuse of
discretion considering the above, that the record does in fact call into question
the constitutionality of Counsels performance and requires at a minimum further
defelopment and expansion of the record to determine whether this issue rises to
the level set forth in Strickland to support reversal of the denial of Petitioners
Appeal and reversal of his conviction and a new trial on the merits.

QUESTION NO. 6 : Petitioner posits to this Court that the prosecutor in his
trial committed the act of prosecutorial misconduct in regards
to her actions made at trial. Petitioner cited specific instances of misconduct
in his Brief to the Court of Appeals (See: Brief pgs 16,18,21). The prosecutor
discussed the punishment at guilt/innocence (Vol.4, pgs 96,18 to pg.97, 15) and
(Vol. 4, pg. 103, 11-24) She made a recommendation of punishment of a specific
term of years (48 years) to the jury, she made remarks as to the credibility of
witnesses, referred to infamous criminals to compare to the defendant. This

page 6
Court has held that EACH of these acts to be impermissible. See: Cortez v. State,
683 SW2d 419 (Tx.Crim.App. 1984)(punishment at guilt/innocence) see also: Hart
v. State, 581 SW2d 675,679 (Tx.Crim.App. 1979); Alejandro v. State, 493 SW2d 230
(Tx.Crim.App.1973)(going beyond permissible argument); Irving v. State, 573 SW2d 5
(Tx.Crim.App.1978)(reccommending of specific term of punishment) see also: Hammond
v. State, 799 Sw2d 741,749(Tx.Crim.App. 1990) (using her position of...authority
to convey a personal opinion to sway the jury) and also see: Wright v. State,
178 SW3d 905(App.l4 2005)(to sway jury to ignore duty to deliberate); Menefee v.
State, 614 SW2d 167 (Tx.Crim.App.1981)(credibility of witnesses); Owen v. State,
656 SW2d 458(Tx.Crim.App.1983)(arguing remorse and taking responsibility); McKenzie
v. State, 617 SW2d 214(Tx.Crim.App. 1981)(false statements); and Everest v. State,
707 SW2d 638(Tx.Crim.App.l98%)(critizing defense Counsel) - ALL of these acts
were committed by the prosecutor in this case. Glaringly the Prosecutors reference
to an infamous assassination (Kennedy)(Vol. 4, pg. 91, 10-14) to put in the minds
of the Jurors to compare PEtitioner to Lee Harvey Oswald. Neither Counsel, nor
the Court made any attempt to erase this improper comparason from the minds of the
Jury - and may in and of itself have warranted a mistrial. See: U.S. v. Escamilla,
666 F.2d. 126 (CA 5 1982). This Court has consistently ruled that unless prejudice
can be eliminated, a trial Court MUST declare a mistrial. Citing Hawkins v. State,
67 SW3d 918 (Tx.Crim.App. 2002). The prosecutor gave definitions to the Jury on
what "beyond a reasonable doubt" means. Saying it means to "use common sense
and reason" (Vol.2, pg.13, 11 to pg.14, 1). She did this AFTER saying that "the
highest criminal court in the State of Texas has said they're not going to give
y'all a definition" - citing this Courts directives on this issue - clearly she
knew she was doing something not permitted here and demonstrating, on the record,
her disregard of the law and rulings of this Court. Knowingly trying to improperly
influence the Jury soas to impunge and deny Petitioners right to a fair trial and
a fair review - and prejudiced the proceedings. The Prosecutor even indicated to
the Jury that "had it been my Aunt or my Mother, I would have been extremely
upset. I probably would have wanted to have killed whoever did that too...".
Her nefarious purpose here was to incite the Jury to want revenge, but to play on
their morals. The totality of the prosecutors statements, misstatements, and
improper and impermissible conduct and tactics - define the basis of a review for
misconduct - yet the Court of Appeals just disregarded all of this in denying the
Petitioners Appeal. The Court of Appeals failure to follow the accepted and usual
course of review of Claims such as prosecutorial misconduct - clearly conflicts
with this Courts and the U.S. Supreme Courts decisions on such impermissible
conduct and deviates from the accepted State and Federal law so as to create

page 7
 inconsistancy in answering questions considering same, and warrants a reversal of
the Court of Appeals denial of the Petitioners Direct Appeal and a remand to the
Court of Appeals to hold an evidentiary hearing and consider Petitioners claims
on the merits.

QUESTION NO. 7 : Petitioner here questions , in general, the basis of the
Court of Appeals decision to not grant him a "day in court",
to not grant him an evidentiary hearing to expand the record on Appeal to further
add to the citations from the trial court record and legal authorities in support
of his claims for relief, to not consider the merits of his appeal, to not afford
him his right to constitutionally effective assistance of counsel by appointing
him one who would actually assist him for his direct appeal. Petitioner refers to
TRAP rule 44.2(a), in that once errors are identified, the burden shifts to the
State to PROVE the error is harmless "beyond a reasonable doubt", and to PROVE the
error did not contribute to the conviction or punishment, and for the Court of
Appeals to conduct a harm analysis - but this was not done in Petitioners case.
See: Davis v. State, 195 SW3d 311 (App. 14 2006). The question is why. But of course
this is not the purpose of a discretionay review, it is not to determine whether
the Court of Appeals "got it right", but rather whether in this particular case
their decision to not consider and review the issues presented by Petitioner
in
his Briefs, issues of constitutional magnitude, will have or will likely have
an adverse effect upon the jurisprudence of this State. (See TRAP rule 66.3).
Petitioner avers that it would. Any time the Constitutional rights guaranteed
by the constitutions of the U.S. or the Constitution and laws of the State of Texas
are violated - the Courts MUST be consistent in its holdings and rulings and
have a sound basis in law or fact to stray from same so as to maintain uniformity
of justice and protect the fundamental rights of the people - which in the case of
this Petitioner have been voiced to the Courts below, but as of yet have not
found an ear to be heard. Petitioner believes the memorandum opinion by the
Court of Appeals does so conflict with this Courts and the U.S. Supreme Courts
rulings on these constitutional issues and as such requires reversal.
PRAYER / RELIEF REQUESTED
WHEREFORE PREMESIS CONSIDERED, Petitioner Joshua Jerrod Thomas respectfully does
request that this Honorable Court of Criminal Appeals GRANT this his Petition for
Discretionary Review and REVERSE the denial of his direct appeal in the memorandum
Opinion of the Ninth Court of Appeals and REMAND his case back to that Court
for a review on the merits of his Appeal. Petitioner further PRAYS that this Court
ORDER that the Ninth Court of Appeals schedule and hold an Evidentiary Hearing and
Appoint to Petitioner new Counsel to assist him at said hearing and assist' him with
his direct Appeal.
page 8
Petitioner further PRAYS that this Court GRANT him any and all other relief to
which he may be entitled to.

Respectfully submitted,
on this ft(o day of QckWc •2015. \ \