PD-1378-15 RECEIVED IN
COURT OF CRIMINAL APPEALS
OCT 22 2015
NO.
j.Cteffe
LEE WEST, PETITIONER § IN THE COURT OF
§
VS. § CRIMINAL APPEALS
§
STATE OF TEXAS § OF TEXAS
PETITION FOR LEAVE TO FILE OUT OF TIME
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF SAID COURT:
Now comes LEE WEST, Petitioner, in the above styled and numbered
cause, and moves leaves to file out of time, of 30 DAYS FROM NOTICE OF
AFFIRMANCE OF PETITIONER'S CONVICTION, a petition for discretionary
review, and for good cause shows the following:
1. On JULY 23, 2015, the Court of Appeals affirmed Petitioner's
conviction. LEE WEST v. State, No. 121400170-CR, In the 12th
Court of Appeals, of Texas. The petition for discretionary review is
therefore due on AUGUST 22, 2015.
2. Petitioner was represented by counsel on appeal to the Court of
Appeals. Petitioner is proceeding pro se in this proceeding and has
been proceeding pro se since his appellate counsel filed the brief on
appeal in the Court of Appeals and notified the Court that he was no
longer representing Petitioner on the direct appeal.
3. Counsel has been unable to complete the petition for the following
reasons: Appellate Counsel notified the Court of Appeals he no longer represented
Petitioner on filing of the brief. The Clerk notified Counsel, and not Petitioner of
the Court's decision on direct appeal, notwithstanding the Clerk having Petitioner's
address for notice and service. Petitioner did not receive notice of the Court of
Appeals AFFIRMING until September 23, 2015. This motion is filed currently
with the filing of the instant petition for discretionary review.
3. Defendant is currently free on bond. Petitioner, however, will be in
custody on October 27, 2015 as the court has ordered his appearance on that date
to surrender on the instant conviction.
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully
requests an extension of 30 DAYS FROM NOTICE TO PETITIONER OF THE
AFFIRMANCE ORDER BY THE COURT OF APPEALS, i.e. until October 23,
2015, to file a petition for discretionary review.
Respectfully submitted,
LEE WEST
663 Peabody Road
Bruceville, Texas 76630
(903)312-0461 (PHONE)
PETITIONER PRO SE
CERTIFICATE OF SERVICE
This is to certify that on October 23, 2015, a true and correct copy of the
above and foregoing document was served on the District Attorney's Office,
SMITH COUNTY DISTRICT ATTORNEY
100 NORTH BROADWAY AVENUE
TYLER, TEXAS 75702, by mail.
CASE NO.
IN THE
RECEIVED IN
COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS ^ ^ ^
ex parte 4be!Aco3ia, Clerk
GREGORY LEE WEST
On Petitioner for Discretionary Review from the 12th Court of Appeals
At Tyler, Texas, Appeal No. 12-14-00170-CR
GREGORY LEE WEST'S ORIGINAL PETITION
FOR DISCRETIONARY REVIEW
TO: THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS
GREGORY LEE WEST, Petitioner Pro Se, ("Petitioner"), petitions this Court for
discretionary review of of the decision granting Appellate counsel's Anders Brief in the 12th
Court of Appeals, which opinion was issued July 22, 2015, and in support of such review
Petitioner would show this Court as follows:
JURISDICTION
This Court has jurisdiction to hear this petition. The judgment of the Court of Appeals
was issued July 22, 2015, but the judgment included in it an order to Appellate counsel to notify
Petitioner of the filing of the Anders brief prior to that judgment being issued. Appellate counsel
failed to notify Petitioner of the filing of the Anders Brief, and as a result Petitioner merely
waited to have the Court of Appeals determine the merits of the appeal. Recently, however,
Petitioner was ordered to appear in the County Court where his conviction was obtained, on
October 27, 2015. That notice was for Petitioner to surrender to begin serving his 240 day
sentence. Prior to receiving that notice, however, Petitioner was served a copy of this Court's
judgment issued July 22, 2015. He has been in the process of preparing this petition since as a
pro se litigant as appellate counsel has been permitted to withdraw from representation. Filed
concurrently with the filing of this petition is Petitioner's motion for leave to file an untimely
petition for discretionary review, however a petition that is filed within 30 days of notice of the
entry ofjudgment by the Court of Appeals. Petitioner proceeds, pro se, and in good faith
reliance on the rule of law. No party will be prejudiced by this Court exercising jurisdiction in
this matter.
PROPER FILING OF PETITION
Pursuant to Rule 68.3 Tex.R.App.Proc. Petitioner is filing, in person, this petition within
the 30 days he is allowed for such filing after notice of the Court of Appeals decision on direct
appeal. Again, Petitioner is in substantial compliance with the rules.
TABLE OF CONTENTS
PROCEDURAL HISTORY
PROPER FILING OF PETITION
TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATEMENT REGARDING ORAL ARGUMENT
STATEMENT OF THE CASE
STATEMENT OF PROCEDURAL HISTORY
GROUNDS FOR REVIEW
ARGUMENT
PRAYER FOR RELIEF
TABLE OF AUTHORITIES
ANDERS v CALIFORNIA, 386 US 738 (1967)
GAINOUS v STATE, 436 SW2D 137 (Tex.Cr.App. 1969)
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would assist the Court in ferreting out the true record of the proceedings in
the Court of Appeals. Petitioner, a non-lawyer, has relied upon the reality that clients rely on the
advice of their counsel. Petitioner was unaware of what an Anders Brief was at its filing, nor the
ability of him, as a pro se objection to such filing, to file his own reasons why the brief should
not have been filed. The relief sought by this review is not with reference to the judgment
entered by the Court of Appeals, but rather, a review of the due process requirements not met in
the entry of that judgment. As such, this review shall not consist of the merits of the Anders
Brief, rather the due process denied Petitioner in its entry. The relief sought is not on the merits
of the conviction, rather, whether this case should be REMANDED to the Court of Appeals to
permit Petitioner an opportunity to exercise his rights in the Anders Brief procedure required by
law. Oral argument will assist the Court in determining what Petitioner knew and when he knew
it, something that cannot be readily discerned from the cold record of the proceedings below.
STATEMENT OF THE CASE
Petitioner was convicted of driving while intoxicated and sentenced to 240 days in county
jail. Appellate counsel filed an Anders Brief after conviction, and Petitioner was not accorded
the due process required be extended to any defendant/appellant whose counsel files a no issue
brief on appeal. This review seeks only to have the appeal REMANDED to the Court of Appeals
for further proceedings with Petitioner participating, and with Petitioner having extended to him
the due process the law requires.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals opinion was issued July 22, 2015. Petitioner was not aware of the
entry ofjudgment until September 23, 2015 when appellate counsel notified him of the judgment
and sent him a copy. There was no motion for rehearing or rehearing en banc as Petitioner was
unaware of entry ofjudgment until September 23, 2015, too late to file such motion(s).
Concurrently with the filing of this petition Petitioner has filed a motion for leave to file an out
of time petition for discretionary review.
GROUNDS FOR REVIEW
At a bare and forgiving minimum due process requires that a defendant/appellant who is
represented by counsel on his first appeal of right, whose counsel files an Anders Brief, is
permitted to object to that brief and explain to the Court the justiciable issues raised from the
record of the trial. The Court of Appeals will consider this argument as a part of its decision
whether to grant or deny the Anders Brief. Due process demands this participation, ie., the
fundamental due process protections: notice and an opportunity to be heard. Petitioner was
denied notice and an opportunity to be heard in this case as required by law. All Petitioner was
aware of at the time of the filing of the Anders Brief was that his counsel had filed a brief, and
counsel had moved to withdraw. Petitioner was never contacted by the Court of Appeals as to
the Anders Brief procedure, or the necessity of him filing a brief in opposition.
ARGUMENT
Appellate counsel filed an Anders Brief pursuant to ANDERS v CALIFORNIA, 386 US
738 (1967) and GAINOUS v STATE, 436 SW2D 137 (Tex.Cr.App. 1969). The Court of
Appeals AFFIRMED. WEST v STATE, (No. 12-14-00170-CR)(Tex.App.-12th Dist @ Tyler,
Tx. July 22, 2015). Counsel affirmed he followed his duty under the law by notifying Petitioner
of the filing of the brief, This may very well have been, but Petitioner was never advised of his
responsibility to file an opposition to the Anders Brief, pro se. The Court of Appeals, in entering
judgment and AFFIRMING the conviction, never made a finding that Petitioner received notice
and voluntarily waived his right to file his opposition to the Anders Brief filed by counsel.
It is axiomatic that Petitioner has the constitutional right to file an opposition to the
Anders brief. ID., ANDERS, supra. Likewise, it is axiomatic that this right is a due process right
which if abridged is grounds for vacating the judgment entered by the 12th Court of Appeals. All
Petitioner seeks to accomplish by this petition is to have the direct appeal REMANDED to the
Court of Appeals, to the end that Petitioner be permitted to brief in opposition to the Anders brief
filed by his counsel. Of course Petitioner must remain on the appeal bond he posted.
In addition thereto, however, this is a DWI prosecution. The record of the trial will reveal
that Petitioner was seen by arresting officers sleeping in his car at the time of arrest. He was not
driving, but the presumption was that he had driven to the place where he was arrested. A sample
of Petitioner's breath was taken while he was in custody, and it was above the legal limit for
intoxication in Texas, and still the evidence was insufficient to support Petitioner's conviction.
There was no question but that Petitioner was sleeping when first encountered by officers. A
breath sample was eventually taken, but there was no evidence, at all, as to what Petitioner's
blood alcohol content was at the time he was operating a motor vehicle. The State presented no
retrograde extrapolation evidence to determine what the blood alcohol content was at the time of
Petitioner operating a motor vehicle. It is not illegal in Texas to be intoxicated, even legally over
the intoxication limit, while in a police station giving a breath sample or in a motor vehicle
sleeping. It is only a DWI case sufficient for conviction when the defendant is operating a motor
vehicle WHILE INTOXICATED, and there is no evidence Petitioner was guilty on that basis.
Accordingly, there is justiciable argument to be made on the record facts, record facts not
advanced by Appellate Counsel, and record facts not concluded by the Court of Appeals.
Accordingly, the Petitioner's direct appeal is not frivolous and goes to the very center of the
State's failure to prove each and every element of the offense beyond a reasonable doubt.
PRAYER FOR RELIEF
WHEREFORE, Petitioner prays this Court enters an Order granting discretionary review,
to the end that the judgment of the 12th Court of Appeals is vacated, to the end that this matter is
REMANDED to the Court of Appeals for further proceedings. Additionally, Petitioner prays he
be retained on appeal bond until final disposition of this appeal. Petitioner prays for any and all
such other relief to which he may have shown himself entitled, including general relief.
Respectfully submitted,
GREGORY ^EE WEST, PRO SE
663 Peabody Road
Bruceville, Texas 76630
(903) 312-0461 (Home)
CERTIFICATE OF SERVICE
I, Gregory Lee West, certify that on October 22, 2015 a true and correct copy of this
Petition for Discretionary Review was duly served on the Smith County District Attorney,
100 Broadway Avenue, Tyler, Texas 75702 via regular mail.