C//zné;
Mr.Jam\es A‘lbert Duke 3 (
TDCJ# 11884#8/Eastham
2665 prison Rd.#1
Uoveiady,Texas 75851
August 2a,2015
Hon.Abel Acoeta,Elerk
'Texas Court of Briminal Appeals
P,D.Box 12308§Capitol Station
Austin,Texas 78711
RE: The State of Texas V. Jadee Albert Duke,Case No.wR-37,21h-Dh,
Mamorandum In Support of Applioation for writ of Habeas
Borpus Art;11.07:Trial Court-No.BE?1,Trinity County,Texaa:
Dear Hon.Acosta:
The purpose of this inquiry in to file Applicant's
Memorandum of Uau in the above cause No.UR-37.21h-Dh
enclosed.- '
Please inform applicant of any movement`by the court
in this request for relief¢
I thank you for your time and assistance.
I await your response. I Remain.
5 ncerely,
Oe- O/J=e
James Albert Duke , oc/jpa/pla
enclosure
/ RECE\VED lN
U.__U_/__‘___/l 37 `D-l\{ QHURTo=cR\MlNALAPpEALS
IN THE TEXAs ' SEP012[115
EDURT UF ERIMINAL APPEALS
AUSTIN,TEXAB
Abe| Acosta, Clerk
EX PARTE ` X IN THE DISTRIET EUURT
X TRINITY EUUNTV;TEXAS
JAMES ALBERT DUK-E,l v - X' h11th JUDIEIAL DISTRIET
MEMDRANDUM IN SUPPDRTIUF APPLIBATIUN FUR
'MRIT UF HABEAS'CURPUB SEEKING RELIEF FRUM
FINAL FELUNY EDNVICTIDN UNDER ARTIELE 11.07
AND 11.073 TEXAS CUDE DF'CRIMINAL PRDEEDURES
TU THE HUNURABLE UUDEES'DF THE EUURT UF ERlMINAL APPEALS:
NDhl EUMES, James Albert Duke,Applicant,and submits this Memprandum
in support of Applieationnfor writ pszabeas Eerpus seeking relief from
final Felpny_convietipn under Artiele 11107 and'11.0§3 Texas dee of
Eriminal Procedures and would show this Honerable Court the Fellpming;
l I. JURISDlCTIUN
Thia Hdndrable Court has jurisdiction over the parties and the
Extraordinary Matters pursuant to Art.11.07,8upra of the Texaa Epde
cf Criminal Prpcedures¢
-II. CUNFINEMENT AND‘RESTRAINT
Applicant was convicted of Aggravated'Assault in this case and
sentenced to Bé.years in prison,is being unlawfully confined and restrained
of his liberty by william Stephens;acting in his Ufficial Bapacity as
Directer of the Texas Department'of Eriminal Justiee Eorrectipnal
Inatitutional Division (TDEJ-CID),at the Eastham Facility situated at
2665 Prison Rd;#1;LoVelady,Texas 75851;for Aggrayated Assault in case
No.5671 of the h11th District Eourt,Trinity'County,Texas pursuant to
Art.11.22.of the Tsxas Eode of Eriminal Procedure'this'Eourt has the
jurisdiction or all grounds presented.
III. ERUUNDS FUR RELIEF
ERUUND NUMB ER DNE:
'APPLIEANT'S AETUAL INNBEENEE CLAIM, A SBHLUP- TYPE ELAIM, 15
A PRUCEDURAL ELAIM UHIEH APPLIEANT'S DLAIM UF INNUEENEE DBE5
NUT PRUVIDE A BASI5 FUR RELIEF, BUT 15 TIED TU A SHDMING BF
EUNSTITUTIUNAL ERRBR AT TRIAb ANB UN APPEAL DUE TD INEFFEETIVE
EUUNSEL IN VIULATIUN DF THE U. 5. EUNST AMEND5 VI AND XIV: THAT
HAVE PRDBABLV RESULTED IN A MISEARRIAEE BF JUSTIEE.
GRUUND NUMBER TMU:
APPLIEANT RECEIVED INEFFEETIVE ASEISTANCE UF EDUNSEL AT
TRIAL IN VIULATIDN BF THE TE XAS EUNSTITUTIUN AND THE U. 5.
EUNST AMEND5 VI AND XIV.
ERUUND NUMBER THREE:
APPLIEANT RECEIVED INEFFEBTIVE A5515TANEE UF CDUNSEL UN
DIRECT APPELLATE REVIEM.INHTHE VIBLATIUN UF THE TEXAB
EUNSTITUTIUN AND U.B.EUNST AMENDS VI AND XIV. `
IV. STATEMENT EF THE CASE
Applicant,§ames Albert Duke,pleaded guilty to aggravated assault
with a deadly weapon and true to two Felony convictions for driying
while intoxicated. A jury assessed punishment at 85 years confinement.
Un appeal,Applicant contented that the trial court erred in excluding
evidence of the oomplainant's criminal background and in denying
his challenges For cause. The appellate court affirmed the conviction,
Applicant petition For discretionary review was refused.
2.
Applicant`filed a 5tate Application for writ of habeas corpus which
was denied 5eptember`27,2i06.
v. 'FAcTs;oF THE cAsE
The offense for which Applicant stands oonvicted_occurred on August
B,ZUUZ in Trinity County,Texas,' n
lt was alleged that on August B,ZDDZ,Applicant was living at Ed's
Marina in Trinity Bounty,Texas `SSs (ER-V.S,Pgs,§&,ES,BT) Easey 5izemore
used to live at Ed's Marina and_eame back and~visited.sften.(ER-V,B.PQ 195).
while there,Sizemore threatenedepplicant;severe y frightened g
Applicant SeE,(ERjV,B.Pgs`116,155,170,173),After threatening Applicant
5izemore drove his car under a pecan tree where 5izemore had a direct
view of Applicant's home and continued to intensely stare at Applicant
and Applicant's home further intimidated'Applicant.5ee:(ER-VlZ,PgS`172-173).
Applicant felt the only way to remain safe from 5izemore was.to get
Sizemore to leave the Marina. DUE to Applicant's fear,he decided tov
confront 5izemore and get Sizemore to leave'Ed!s_Marina{ Furthermore,
due to his fear of 5izemore,Applicant.armed himself with a knife when her
went to try to get 5izemore to leave Ed's Marina-See (ER-V.§,Egs 173-T7A).
During the confrontation between 5izemore and Applicant,Sizemore
pushed Applicant_and Applicant used the knife against 5izemore See
(ER-V,Pg~174) when Applicant used the knife during the confrontation
it resulted in 5izemore's injuries and 5izemore later died due to then
lack of medical treatment 5ee (CR-V.Z,Pgs,h1»h2).
. Applicant was indicted for both Murder and Aggravated Assault.
.At trial,the 5tate abandoned the Murder count and only proceeded on the
aggravated assault count.Applicant plead guilty to'the aggravated assault.
3.
count and true to the enhancement paragraphs.Punishment was then tried
by the jury.
vI. ARGUMENTS
GRUUND NwMBER UNE: _
APPLICANT'S_ACTUAL INNBCENEE EEAIM,A BEHLUPsTVPE'ELAIM,IS
A PRUEEDURAE ELAIM wHIEH AEPMIEANT'B ELAIM’UF INNUEENEE DUE5
NUT.PRUVIDE A BASIS FGR'REEIEF,BUT IS TIED TD AlSHleNG UF
CUNSTITUTIUNAE.ERRUR"AT TRIAL AND_UN APPEAt_DUE-TU INEFFEETIVE
EIUNSEE IN'VIUUATIDN IF THE U;S.EBNST`AMENDS VI`AND XIV:THAT
HAVE PRDEABEY RESULTED IN A MISEARRIAGE DF JU5TIEE.
' There are two types of actual innocence claims that may be raised
in a collateral attack on a conviction. A bare innocence-claim,or'
Herrera-type claim "involves a_substamtive claim in which applicant
asserts his bare claim of innocence‘based.solely on newly discovered-
evidence;" Ex Parte'Franklin,?Q 5.w,5d.671,675 (Tex.ErimrApp ZUUZ)
(citing 5chlup V.Delo5531 U.S. 2953314,130“U.Ed 2d'505,f15f5.€t 851
(1995);'Elizondo;§h?'$}w.Zd'at`ZDB)).`The_other actual innocence claim,
a 5chlupsType'claim;we explained'"is'a procedural claim in which Applicantls
claim of innocnece does not provide a basis for relief;but is tied to
a showing of Constitutional Error at trial" ibid,(citing,$chlup,513 U.S.
.at 314); d
Applicant's Constitutional Elaims are based on the claims of
lneffective'.i Assistance of Counsel at Trial and on Appellate Review as
follows{
Generally,a habeas petitioner must show cause and prejudice before
a court will reach the merits of a successive,abusive,or defaulted claims.
Even if he cannot meet this standard,a court may hear the merits of such
u.
claims if failure to hear them would result in.a "Fundamental Miscarriage
of Justice". Applicant's claims applies under the standard based on his
(New Elaims) not previously raised which constitutes an abuse of the writ.
under, McEleskey V.Zant,h99 U.5.467,111 S.Ct 145#,113 L.Ed.2d 517 (1991).
-The Fundamental Miscarriage of Justice exception applies where a petitioner`
is "Actual lnnocent“ of the crime of which he was convicted or the penalty
which was imposed. See,e.g.Kuhlmann'V.wilson,h77 U,S.LEE,TUE 5-Et 2616,Id.
1). Applicant was denied his Eonstituional,Right to effective counsel
to research the law of this case and advance (Applicant‘s) only defense of
justification of necessity,or self~defense;and or self-defense apparent
danger,after Applicant (Admits) to the offense_of`Aggravated Assault under
Section 22.52-of the Texas Penal`Eode,and through Applicantls own testimony
raised a defense in this case under 5ections 9.0239,22,and 9;31 of the
Texas Penal Code;denied Applicant a fair trial,a'fundamental error;
(See;ER,In Ground of Error Number Une)-
2).` Applicant was denied his Constitutional Right to effective counsel
to object to the Eourtfs‘charge to the jury to preserve any error for
.(Appellate Review) as required by (Texas Law) under_Art.ZE;lh of the
Texas Eode of Eriminal Procedure;denied Applicant's.Right of preserving
the error.for Appellate Review under Rule 33.1 of the Texas Rule of
AppellateVProcedure;denied Applicant.a fair trial.a_fundamental error,
and Eonstitutional Violation-under theyVI and XIV Amends of Texas and
United 5tates.(5ee.ER,ln Eround of Error Number Two).
3). Applicant was denied his Eonstitutional Right to effective counsel
of failure to request a jury instruction that the Court charge the jury
5.
on th law of justification of necessity-of self-defense,and or self-defense
apparent danger,raised by the evidence of Applicant's own testimony under
5ection 9.31 of the Texas Penal Eode,precluded the jury from giving effect
to the Applicant’s only viable defense,denied Applicant a fair trial,a
'fundamental_error,and in violation of the Texas and United 5tates
Bonstitution VI and XIU Amendments. id Eourt Records.
cDNSTITUTIUN VIILATIBN“UF.INEFFEBTIVE CUUNSE£.@N DIREET_APPEAL:
4). Applicant was denied his Eonstitutional Right te effective Appellate
Counsel of Eounsel's failure to raise an issue arguingithat trial Eounsel
were ineffective in failing to ; 1).Research the'law available in this
case and advance the law regarding Applicant's only defense of justification
of necessity of self-defense,or and self-defense apparent danger.; 2). Ubject
to the charge by the Eourt to the jury to preserve'the asserted error for
Appellate review.;$).'Reguest a jury instruction that the Court‘s charge
charge the jury on the law of justification on necessity af self-defense,
or and self-defense apparent danger that precluded the jury from giving
effect to Applicant's only defense Constituted Ineffective Assistance of
-Eounsel on Appeal in Violatien of the Texas Constitution and U.'S.Const_v
'VI and XIV Amendments.
5). Applicant was denied his Constitutional Right to effective Appellate
Counsel where Eounsel was Ineffective on direct aepeal when Bounsel
presented a ELAIM of arguable merits of victim's character evidence is
allowed,and (Affirmatively) argued against_Applicantls case,that the
trial Eourt should have allowed testimony from witness,Julie Loitz,about
the victim's
prior convictions of drug charges,and Counsel relied upon Article 35.36 of
`the Texas Eode of Criminal Procedure. This statutory provision only applies
to (Murder) prosecutions. Applicant plead guilty to the charge of
Aggravated Assault with a deadly weapon under 5ection-22.02 of the Texas
Penal Bode,Eonstituted lneffective Assistance of Eounsel on Appellate Review
in Violation of the Texas Eonstitution and United 5tates Eonst.VI and XIV
Amends,a fundamental miscarriage of justice. (5ee§CR,ln Ground of Error No.
Two,and Appellatels Brief In Case No.Dl-UJ-Ul§llB-CR).
cRUuND NuMsER Two:
APPLIEANT RECEIVED'INEFFEETIVE ASSISTANEE UF
CUUNSEL AT TRIAL IN VIULATIUN DF THE TEXA5
'EUNSTITUTIDN AND U.S.EUNST VI AND XIV AMENDS
Applicant had a right to Effective Assistance of Counsel is a right
guaranteed by the SiXth Amendment of the United 5tates-Constitution,5ee,
5trickland V.washington;h66 U.5.668§(198h)yapplied to the 5tate through_
the Fourteenth Amendment of the United 5tates Eonstitution ,5ee,Eideon
V;wainwright,372 U.5.335 (1963);United 5tates V. Eronic,hEE U.S.EHB (1954),
where Eourts considering ineffective assistance of counsel claims must
evaluate whether counsel's deficient performance was significant enough to
undermine confidence in the result of the proceedings,$ee,Bell V. Eone,535 .
U.5.655,695 (EDUDL Also guaranteed by Article 1,5ection 10 of the Texas
Constitution,See,Garcia V. 5tate,7B7-5.w.2d 957,958'(Tex.Erim.App 1990).
The standard for Appellate Review of Effectiveness of Counsel was
set-out in,Strickland V.washington,hEE U.5,665,1Uh 5.Et-2052 (1954),
and adopted by the Texas Court of Criminal Appeals,in Hernandez V.Btate,
7.
726 5.w.2d 53,57 (Tex.Erim.App 1993),and the proper standard for ineffective
assistance of counsel at the (Punishment Phase) of a Non-Capital case on
Appellate Review,See,Hernandez V;State,QBB 5.w.2d`77U-771-72 (Tex.Crim.App'
1955). The two-prong Strickland test,usually is stated as follows;(l) whether
Eounsel's Eonduct was Deficient,and (2) whether,But for Eounsel's Deficient
Perforemance,The Result Uf The Proceedings would Have 5een Different,See,
Strickland,lwh 5.Et at ZUEA;ZDEB,id.
lt has been held that,even if an Attorney's manner of conducting a
trial was trial strategy,it can be so ill-chosen as to render a trial
fundamentally unfair.See,United 5tates VtRusmiael,716`F.2d 301.310
(Eth.Eri 1953),"from lack of diligence in preparation and investigation
is not protected by the presumption in favor of counsel;See,Kenley V.
Armontrount,937 F.Zd 1498)1304 (Bth.Eir),cert denied;BUZ U.5.96h (1991)." '
Even a single error of Counsel may support a claim of Ineffective
Assistance if the error was of such magnitude that it rendered the trial-
fundamentally unfair.5ee,Nelson V.Estelle,642 F.Zd 903,907 (5th.Eir 1981).
1). Applicant would first,urge that his trial Eounsel's conduct was
deficient in failing to research the law available in this case,and
advance Applicant!s'available defense of justification of Belf-defense
due to Apparent Danger.5elf-Defense is a justification defense for
otherwise unlawful conduct.See,Giesberg V.State,QBh 5¢w.2d 245,249 (Tex.
Crim.App 1998),cert denied,525 U,5.1147,119 S.Et 10#&'(1999),a defendant
is "Justified" in using force against another when and to the degree he
reasonably believes the force is immediately necessary to protect himself
against the other's
use or attempted use of unlawful force,under the Texas Penal Eode §9.31
(Vernon'201s).
A person also has the right to defend against apparent danger to the
same extent as if the danger was real.5ee,Hamel V.5tate,916 5.w.2d 491,493
(Tex.Erim.App.l§QE).
In the present case before you,the Applicant Mr.Duke,had a fundamental
right to an instruction on any defensive issue raised by the evidence,
whether that evidence is weak or strong,unimpeached or contradicted,and`
regardless whether the trial court finds the defense credible,id§See,`
Miller V.State,515`5.w.2d 552}585 (Tek.Crim.App.1991).
A claim of (Self-defense Apparent Dangerl defense is not required to
be included in the charge when the defendant denies eiy.participation in
the crime...sanders v.state 707 s.w.zd 78,91 <'Tex..crim.App 1986)-. f
However,when a defendant acknowledges particiation in the offense,his“
self-defense apparent danger defense is not just a denial of the crime.
It is a defense which justifies his conduct in the same manner as an
affirmative defense and must be included in the charge.ld .at 81 n.3.
Also see,willis U.State;VQD 5.w,2d'307,313 (Tex.brim.App 1990)(that once
a defendant admitted to the offense,the Bourt cf Eriminal Appeals has
held that,a defendant can sufficiently-admit the conduct alleged and
justify a defensive inst€?tion as in the Applicant's case.where Applicant
admitted to being recklessly in causing bodily injury to Mr;Sizemore,but
denied intentionally,knowingly stabbing or cutting sizemore with a knife
5ee (CR\V-E,pgs.B,and 174).."
Applicant's Eounsel were deficient in failing to research the law
-available in this case after Applicant admitted to the offense of
9.
Aggravated Assault.
Throughout this trial,it was clear that (Mr.Duke'a) and the others
'"testimony"-asserted the claim of "Self-defense" due to Apparent Danger.
He also testified about Mr.5izemorels previous violent threats.and conduct
toward him and it's impact on him at the time of this offense. THis is
an established method of proof in raising a defense of 5elf-defense to
an apparent_danger.Eee,Fielder V¢State, 756 5.w.2d 309,319-20 (Tex.Crim.
App 1955).
Furthermore,in deciding whether to submit a defensive instruction,
a Court may not review the truth or credibility of the testimonygbut rather
only whether it raises the issue of a.defense;§ee,Broussard;V.State, 509
5,w.2d 556,555 (Tex.App-Dallas 1991,pet,ref'd); Unly`the tier of fact
has the responsibility to accept or reject a properly raised defensive'
theory.See, Fleming V.State, 973 5tw.2d 723,725 (Tex;App-Beaument 1998,
no pet ).
yln this case,the jury could have believed that while Mr.5izemore.
did not participate physically in_the altercation,he had been “Dut of
Control" through his "Threats" and "Assaultive Threats In The Past",Against
`(Mr.Duke) caused continuous fear in (Mr.Duke) due to 5izemore's threats@
Eonsequently,there is sufficient evidence in'the (Recordl tov
raise the issue of (Self-defense.Apparent Danger) as follows:
First,we must review the opening (Statements) of Applicant's
d trial counsel (ER.V-B,pages 27-28)
THE EDURT: All right,Mr.Park,do you wish to make an opening?
MR.PARK: ves,r dn,vour H@npr..- n ` “ `
May it please the Eourt,Mr.Mullin,Ladies and gentlemen,l actually
agree with a lot of what Mr.Mullin has just told you.Mr.Duke has
admitted that he is guilty of aggravated'assault.
` 10.
He has taken responsibility for his actions.He said that he_acted
recklessly;
we'er also going to admit.that he was drunk that night.But these
things still don't fit into`a vacuum.Vou're going to learn that
on that night Mr;Duke was suffering from a spinal disease;arthritis,
a broken wrist,two broken fingers,he had been clinically diagnosed
with depression and post-traumatic stress syndrome as a result of
his being a marine in vietnam, This is not a man who was healthy.
.Mr.Sizemore was a 33-year-old man.He was healthy.
And there is a reason.Mr.Duke was upset and went down there carrying
that knife. No.l,he was scared. No.2, he wanted to tell.Mr.Bizemore
to leave. The reason he was telling him to leave is because Mr.
-5izemore has just threatened this man anthad been shoving him around
threatened to kill him. Vou will also learn that he threatened to
beat him up several times in_the past.
Now,we must consider the_(Testimony) of the_Applicant and his
(Initial) plea of (Not Guilty) during Voir Dire Preceedings (CR. V- 2,pgs 20- 21)
THE CBURT: This is on the record. Your true and corr ect name is
James.Albert Duke; `is that correct? THE DEFENDANT: Ves.
THE CUURT: Mr.Duke;yeu were originally indicted in cause No.5574;
and he reindicted you in Cause No.6571,.Do_you_understand that?
THE DEFENDANT: Ves. THE CDURT: Vou'were--MR;RIDLEY: You have read
them. THE CDURT& Have you read the indictment pending against you?
THE £3 I= ca b
And I did,so you say,a reckless thing.l armed myself,and I went down
there and confronted him again and run him off.
Let's be clear.You-are the one that keeps saying lthings like
"stupid" and "reckless." Are they stupid and reckless,or did you
mean to go down there with a knfie?
At the time I suppose i did.i put it in my hand.
50--
I didn't go down there to use it.
But you did,didn't you?
'Yes,sir,l did.
And you said in your statement--I'm going to read you afew excerpts
because I have a transcript of what we heard today.And then I'm
going to ask you a question about it. You saidy'"all l wanted him
to do was leave.i told him he didn't need to come back.I wish he had
went on home.If he hadn't shoved me. I wouldn*t have stabbed him.All
I wanted him to do was leave.All I wanted to do was get in his car
and go.l wish he would have just went on home?"
Do those sound like the statement of a man who thinks this is his
fault? Aren't you putting it off on Easey?
l guess it could be on both of us actually.lt's--
I was going down there with a knife ,him threatening me and shoving
me around.Bo which is right and which is wrong,I don't know, This
is why we are here.i don't know,
Casey--you still don't know which is right and which is wrong?
Is that what you are saying?
It was wrong of me to go down there with a knife,yes.
was it wrong for you to stab him to death?
Yes.
Did he ever threaten you with a weapon?
He didn't need a weapon.
He didn't what?
He wouldn't need a weapon.
1&.
So you*re not hedging your bets here just a little bit when you s
"well,l really don't know what~ is right and what is wrong.That's why
we'er here?" Aren't-you kind of equivocating a little bit? »
No.5ir,l'm not. _
MR.PARK: UbjectionyYour Honor.He said it was wrong to go down there.
THE EUURT:.All right,I'll sustain your objection.
Now we must consider and review Applicant's Eounsel's closing
arguments: (ER.V-B,pgs 214-215)
MR.PARK: If it pleases the Eourt,ladies and gentlemen,l would like to
thank you all for coming here and servinng on this jury.Dne thing that
Mr.Mullin said is absolutely right.Uur client has pled guilty.He has
admitted_his guilt.in this case.50 today everything that we have done
is not--didn't have anything to do with justification.There is no
justification for what he did. n
what we'er trying to do today is mitigate,that is trying to lessen,
show you the circumstances surrounding this crime that he did commit
and show you why you should not give him as mush time in jail.
_ Now,Mr.Duke took responsibility when he came in here and he pled guilty_
He admitted that he was wrong.And I think that that is in line with
what he has done throughout this entire case,other than the crime itself.
After he committed that crime,he went straight up there;and he admitted
to his brother and admitted to the whites what.he had done.He didn\t
try to run.He didn't try to hide.He.dingt try to throw that weapon
out there in the lake.He brought it right up to his brother.
when the police came,again,he didn't try to flee.He didn't try to
run anywhere.He came up and told the police,"Yes,I am the one you'
are looking for."
_when they came and asked him to make a statement,again,he didn't
say,"well,no,l want to talk to my lawyer.I don't want to say anything
at all." He went out there and voluntarily made a statement.
iNow,this is significant because it means that the only reason we
know what happened,about him stabbing Easey 5izemore,is because
15.
he admitted it. He didn't try to hide anything.he has not came
in here with any self-serving statements.All along he has faced up
to his responsibilities and admitted to what he did.
`Now,lets take a look at what might mitigate the circumstances,
other than him being honest and responsible. Un that evening,
August the Bth ZUUZ,James.Duke--you saw his wrist.I mean,that
- wrist isn't just broken.it's horribly broken,he had two broken
fingers.The man had spinal diseaseywas suffering from seizures,
had post-traumatic stress syndrome,and had servere depression.He
l was on all kinds of medication.Now,we had an expert psychologist
come in here and tell you that all these things make him more
prone to fear,to anxiety,to thinking peoplt.are threatening him,
whether they are or not.
Let's take a look at Casey 5izemore.He didnjt deserve to die.
what James-Duke did to him was absolutely wrong.Casey was a man
about my age.l don't like the idea of him dying like that.I
donlt like what James Duke.did.But Easey 5izemore--and here we've
got a guy who defines himself with tattoos that say "outlaw"
and "Btoned again" and have knives.stabbed down through skulls,
-eight-point dagger31 He comes up to this man and starts threatening
James Duke.James Duke told you he had threatened to kill him before.
James Duke told you he had been in the pen.James Duke told you he
had seen him dealing drugs;using cocaine out there on a regular
basis and was not a nice guy. n
He is a young,healthy man.This is-a beat up,old`man over there.
He came up there and startes shoving him around,cussing him out,
saying he is going to whip his ass and saying he is going to kill
him and he has done.this on several occasions in the past.
James Duke finally had enough.But he wasn!t going down there to
kill him.He did commit a crime,but he did not intentionally
go down there to kill this guy.He did intentionally bring that
knife.down there,but he told you he wanted the guy to leave.
And that's what we really wish in this case.we wish,first
of all,that James Duke had not stabbed Easey 5izemore.That's the
No.1 thing we wish. l
16.
5econdly,we wish that Casey Sizemore had left.Thatls all he
had to do,But he didn't.He gets over there and tells him again,
ll'm going to whip your ass,shoves him again."
Folks,this is a case of a young man who did not deserve to die
but who shoved around a beat up,old man one too many times.That
does not justify what he did,but we hope that you will have mercy
in light of all the circumstances of this case.Thank you.
. You must also consider the (State‘s) prosecutor's closing arguments
by Mr.Mullin (ER.V-Z;pgs 215-227). l
The trial court must charge the jury on any (Defensive Issue) raised
by the (Evidence),"Regardless of it's substantive character;" 5ee,
Brown V.5tate,955 5.w.2d 276,279 (Tex.Crim.App 1997)(quoting williams V.
5tate,630 5.w.2d 6#0,643 (Tex.ErimtApp 1952).‘
Self-defense,like other chapter nine defenses justifies conduct
that would otherwise be criminal,See.Vanbrachle'V.5tate;179 5.w.3d 7UB,
` 715 (Tex.Crim.App 2005)(citing Young V.State,991 5.w.2d 835,538 (Tex.Erim.
App 1999);wallace h.State,.75 5.w.3d.576,587`(Tex.App-Texarkana 2502),aff'd
` 106 5.w.3d 103,109 (Tex.Crim.App 2003). In other words,the defendant
'must "Admit" violating the (Statute) under which he is being tried,then
offer a statutory justification for his otherwise criminal conduct.Young,
991 5.w.2d at.BZB. Thus,a defendant is not entitled to_a jury instruction
on "Self-Defnse" if through his own testimony or the testimony of others,
he claim that he did not perform the assaultive acts alleged,or that he'
did not have the requisites culpable mental state,or both,5ee,Ex Parte
Nailor 1h9 5.w.3d 125 ,13# (Tex.Brim.App ZUUA);East_V.State, 76 5.w.3d 736,
735 (Tex.App-waco,2002,no pet);wallace,75 5.w.3d at.587;Eilmore V.5tatey`
44 5.w.3d 92,97 (Tex.App-Eeaumont 2501),pet.ref'd).Anderson V;State,11 5.w.
3d 369,372 (Tex.App-Houston [1st Dist].2UUU,pet ref'd).
17.
Applicant's trial counsel were deficient in failing to know the law
available to Applicant's case.
Eounsel failed to acknowledge that a defensive issue may be raised
solely by the Applicant's testimony.See,Pierini V.State, 004 5.w.2d 255,
260 (Tex.App-Houston [1st Dist]1991,pet ref'd).ln determining whether
testimony of the Applicant raises an issue of self-defenseythe truth or
credibility of the Applicant's testimony is not at issue.5ee,Rodriguez V.
5tatey544 5.w.2d 352,353 (Tex.Erim.App 1976).(ER.V.B,pgs,160-191).
If the defensive theory is raised,and the trial court is timely
and properly requested to instruct the jury on the theory,the trial
courtv must instruct the jury on the raised defensive theory.Bee,
Thompson V.State 521 5.w.2d 621,624 (Tex.Erim.App 1974).
"[A] person is justified in using force against another when and
to the degree he reasonably believes the force is immediately necessary
to protect himself against the other's use or attempted use of unlawful
'force."‘See,Texas Penal EOde Ann §9.31 (Vernon Supp 2002).
To rely on "Self-defense" the Applicant must first admit committing
the conduct which forms the basis of the indictment;the defense is-
inconsistent with a denial of the conduct.Bee,Kimbrough V.5tate, 959
5.w.2d 634,640 (Tex.App-Houston [1st Dist]1995,pet.ref'd);MacDonald V.
5tate,761 5.w.2d 56,60