PD-0129-15
COURT OF CRIMINAL APPEALS
COA. No 10-13-00430-CR
TRIAL No. 12-00472-CRF-272
Plfir>lg-» #
QUINCY BUTLE.R vs THE STATE OF TEXAS VED
APPEAL-HRQM..-TV Cause No 12-00472-CRF
COURTOF CR/WALAPPfls
THE DISTRICT COUffiT BRAZOS COOHfTX,TEXAS ^AY 11 2015
272nd Judicial District
Abef Acosta, Clerk
MOTION FOR REHEARING(79 .1)
TO THE HONORABLE JUSTICE OF THE SAID COURT:
COMES'' NOW QUINCY BUTLER .MOVANT IN THE ABOVE ENTITLED AND
NUMBERED cause by and through PRO se ,and files this Motion
for Rehearing pursuant ( 79.1),and in support thereof movant
would show the court as followings:
THE Court of Criminal Appeals has held the court's
jurisdiction is not unlimited when it comes to protecting
thehrights of the citizen no matter what walk of life he
or she may be from. McBetiii vs Campbell, 125 s.W.2d 118,122
(Tex.crim.app.1929) .
Appelant certify said motion see T.R.A.P 10.2 which is also
supported by record Authority and Argument to obtain relief.
Kindlejr vs State 879 sw.2d 261,264 (Tex App. Houston 14th Dist_
1994.)This court has held that when our Code of Criminal •
Procedure has been overlooked and disregarded we will set aside
..conviction we will always have an attentive ear,Parker vs STATE
795 sw.2d 934,935,937(Tex App,HOUSTON 1st Dist 1988)
..,, .^ ..>... i -•*-•
MOVAT WAS DEPRIVED OF HIS RIGHTS AS SECURED AND GUARANTEED
under the 6th amendment to an impartial"jury trial" and
to be properly informed of the nature and cause of the accu
sations against him and violated his 14th amendment right to
due process when this court failed to acknowledge that the
trial court abused its discretion in denying movants "IMOTION
to QUASH indictment .Movant challenged the ©onstitlitional ;bMt
test required for a valid indictment, and the elements of r: -•<;
the constitutional testeltrequired for a valid indictment,and i•--.••-
dl^entT^fthe offense and every fact or circumstances
nessary to complete the discretion thereof alleged therein
cbb€.-.i charging instrument, and the trial court's denying the ,i
"Motion to Quash the Indictment" as the Texas Code of
Criminal Procedure illustratively defines defects in the .•••.;.
substance to include "That it contains matter which is a legal
defense or bar to prsecution •"
And the terms set forth in the second paragraph charging
movant with aconduct of being reckless is misconstrued,imper
missible and misdirecting to the meaning expressly provided
by Texas Legislative intent.In the instant case ,thus reveals
constitutional error that is subject to a harmless error re
view, and The Court of Criminal Appeals should grant this ,:
Motion forUReheaiing of this Court order Ref using.jp .D .R
4-1-15,and movant urges the court to issue an order to re/o
verse this wrongful conviction.Futher the challenge to the
legallyuinsufficiifent evidence should have been reviewed
"de novQfl . Ih accordance to well established law established
by the U.S. Supreme Court as well as The Texas Court of
Criminal Appeals, a grand jury indictment must set forth each
essential element of offense,and to be valid an indictment
must charge positively and not inferentl^/but with clarity
and certainty so that the accused may know with precise
notice of what he is defending against .When a statute • •., :.,,.,
defines the manner and means of a commission in several
alternative ways, a_n_ indictment will fail for lack of_ specificity
^f.i^ neglects to Identify which of the statutory means it_ .-.oV.-. ,,.
address.State vs Edmond,933S.W.2dl20,128(Tex. Cr.App.1996)
_(_"WHERE A CRIMINAL STATUTE POSSESSES STATUTORILY_DEFINED,
ALTERNATIVE METHODS OF COMMITTING AN OFFENSE, THEN; UPON
TIMELY/REQUEST,A DEFENDANT IS ENTITLED TO AN ALLEGATION
OF WHICH STATUTORY METHOD THE STATE INTEND TO PROVE .").
The Court of Criminal Appeals intended to create
a bright-line rule in Edmond . That rule is:"WHEN A STATUTE
DEFINES THE MANNER.OR MEANS OF COMMITTING'AN OFFENSE, AN
INDICTMENT BASED UPON THAT STATUTE NEED NOT ALLEGE ANYTHING
BEYOND THAT DEFINITION "Edmond ,933; :S .W .2d •at 129. .
In ith'S instant case the charging instrument defines
part of Deadly Conduct and part of Aggravated Assault
definition in the indictment ,and fails for lack of , oci .i
specificity. The <20t*i<:)Gotiir&:op£oAp^AlS stated : THE
TRIAL ATTORNEY. STATED THAT THE STATE FAILED TO S TATE^A CUL-PABLE
MENTAL STATE AND APPELLANT'S APPEAL ATTORNEY ASSERTS THAT
THE INDICTMENTKALLEGED THE WRONG CULPABLE MENTAL STATE.
The 10 th Court of Appeals failed to address the fact
the indictment was void as a whole if it did;'ii©t give
a culpable mental state of if it gave the wrong culpable
mental state which prejudiced the defendant and violated
his due process rights guaranteed unider th 14th amendment.
The state charges the deadly weapon as follows:...to-wit:
firearm,which in the manner of its use or intended use was
capable of causing death or serious bodily injury..."
This language is not necessary and was not part of the
statutorily definition of deadly conduct therefore violating
establish law in Edmond supra.
Thiei U.S constitution states that : Imi all criminal -.o;io
prosecution,the accused shall enjoy the right to a...public
trial,by impartial jury... and to be in formed of the nature
and cause .of the accusation. [U.S. Constitution 6 Amend.]
In the instant case the movant was entitled to a specific
allegation of the manner and means
of committing the alleged offense in which hev/was charged.
The £ourt of Criminal Appeals has held that an accused
cannot ^£L "intentionally or knowingly",and act reckless
at_ the_ same time in_ the same instant, [ALONZO y_s_ State,353 s.W.
3d 778(Tex Crim.App 2011)
..and because of such denial of constitutional protection
and the State's failure to correct the invalid and fundamentally
defective and void indictment when having an opportunity to
do so, this court in all things should grant this Motion for
Rehearing and Reverse the trial courts conviction and punishment
and remand for further proceedings.
2)
In reviewing a legal sufficiency challenge to the evidence
Tex. Code Criminal Proc.Ann.art. 1.14(b) provides that certain
errors are waived if the>re is no objection. In COQK vs State
902_ S.W-. 2d_ 471,476 (TEX, CR-.App .1995), the Court held to
comprise an indictment within the meaning of art,V-.&12 of the
Texas Constitution,the document must charge:1) a person(2)with
the commission of an offense. In the instant case the -trial
court did not have jurisdiction to prosecute this instant case
by lack of clarity and specificity to identify the penal statute
under which the State intended to prosecute.
The Trial court has denied movant his Sitcth Amendment j ,r,
right to compulsory process " is in plain terms the right to
present a defense, How could movant present a defense when
the fail to give adequate notice of the offense in which the
State plan to prosecute after timely request?
3 .)
Double Jeopardy
Movant was tried 3 times for this same offense in violation
°'; '•"•<>1--' r.!Op:-:;-y ..wjo :.:w; :'-.;.ii;o i. di. \;. i.,,. I. y
-it?!? amendment guarantee .The Trial court also initial indicted
movant on a Agg Assault then subsequently indicted movant
on DEADLY CONDUCT from the same event as th AGG ASSAULT
which was the same identical act by the charging instruments,
Luna vs State 493 fr.W-.-2d 854(Tex . Cr . App^. 19 73)
4.)
The-Trial court erred in denying mistrials.
The State several in flamatory statements, and the three rern^t-
were denied after cumalative effect of all the inflamatorv
remarks by the State and there witnesses. ^^matorv
ni<;pD"r;n9 closing prosecutor J/ASON GOSS SAY THIS IS A MURDER
are aivenV "1Strial J» requested ,denied and instruction
are given to dis-regard then after instruction are aiven
PROSECUTOR RYAN CALVERT gets up and says thi L a"u?der case
theemi„ds If thehad
une minds ol ^ again.
the juror's inSt^tions the prosecutor tnfla^d
He rephases his statment by putting if in front of the
original statement this is a murder case after the said
"I HAVE COMMITS MURDER ON THE RECORDS.
oart oA°hanthWaSSentenCed
part f°r attemPt
of the charging instrument. murder which was not
This was also prosecutorial misconduct and misrepresented
facts in evidence and disregarded instruction the Judge had
2XrSrW?r^l"8Ulted " V1°lati°n « 6thAmendment nght to
In evaluating whether the declaration of a mistrial
was warranted, in the instant case, the Court of Appeals,as
well as the trial court failed to apply inflexible standards,
due to the infinite variety ,-of circumstances m which a mistrial
arose and" should have been granted.The prosecutor misrepresented
tacts in evidence amounted to substantial error because doing
so profoundly impress the jury and had significant impact on
the jury's deliberations "Donnelly vs Dechristofore 416 u<.S
*$?/($ fr^ct I868_, 40 L-^ED 2d 431 (1974)-.
Movant's U,fr. Constitutional right' s6th, 5th ,14tii<* Ala^r.
( amendment )
and the Texas Const,and Federal right's were violated
and in conclusion movant prays this Honorable court
by and through the interest of justice grant this motion .
WHEREFORE,PREMISES CONSIDERED, the movant prays that this
Honorable court will grant this the MOVANT'S MOTION FOR RE, -
HEARING . ~
RESPECTFULLY SUBMITTED
QUINCY BUTLER #01899541
Eastham Unit 5 DORM -36
Lovelady ,TX75 851
CERTIFICATE OF SERVICE
I certify that a true copy of this Motion for Rehearing
was served to the Clerk of the Court of Criminal Appeals
on 5-5-15 to '.B.O.JBOX 12308
Capitol Station,Austin ,TX 78711 Y " * MAIL
RESPECTFULLY
QUINCY BUTLER
x ^L—-? cJL
COURT OF CRIMINAL APPEALS
'( COA No. 10-13-00430-CR
Tr, Ct. no. 12-00472-CRF_(2£7(2n«S
PD_0129-15
Second request for extension of time to
"•;."..:•: £ile<.;a MotibmhforiRehearimg "
THE* HONORABLE JUSTICE ;OF SAID COURT
COMES.-MOW QUINCY BUTLER .PRO ,se .appellant ..requesting, for an
additional, .extensi.on.:.of, time .>. , . ..,.,... -,.. •, , .
Movant would..show-..as .follows-:.
1) -This court granted the extension of time on 4-20-15
but movant just was notified that his first request was
granted on 5^4-15 and its due 5-6-15.
2). Movant would show that this court sent movants ;
white card notifying him that the request was granted went
to the wrong address and was forwarded to movant upon late
notice. Movant is located at Eastham Unit and no longer at
Allred Unit and this court had already been.notified of his
new location -2665 Prison RD 1
Lpve.lady ,Texas 75851
,. WHEREFORE PREMISES CONSIDERED appellamit prays tBiat
this Honorable court acknowledge the facts above and
grant movant 15 days to sumblt his Motion for Rehearing
by May 21,2015
RESPECTFULLY' SUBMITTED
QUINCY BUTLER #01899541
Eastham Unit 5 Dorm-36
Prison RD 1
Lovelady,75851
CERTIFICATE OF SERVICE
I,certify that a true copy of this Request for extension of
time has been served on the Clerk of the COurt of Criminal
Appeals, P.O.Box 12308,CAPITOL STATION,AUSTIN,TEXAS 78711
by U.S. mail on 5-4-15
DECLARATION
I,QUINCY BUTLER #01899541 ,movant in the above and foregoing
Request for extension of time to file MOTION FOR REHEARING,,
and to the best of my knowledge and belief it is true and
correct .
This declaration is made pursuant to section 132.001,et seq,
of the Texas Civil Practice and Remedies Code,on this 4th day
of May,2015
QL_
MOVANT PRO se
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