/56ZtS
No. ORIGINAL
Court of Criminal Appeals of Texas
RECEIVED IN
Mark Eugene Engle, Appellant COURT OF CRIMINAL APPEALS
vs.
DEC 02 2015
Abel Acosia, Clerk
The State of Texas, Apellee
FILED IN
JOURT OFCRIMINAL APPEALS
o
Petition for Discretionary Review
From the 6th Court of Appeals
Abel Acosta, Cierk
In Appellate Case No: 06-14-00239-CR
Petition for Appellant
Honarable Justices:
Comes now the Appellant and submits this PDR pursuant to
the provisions of the Texas Rules of Appellate Procedure in support
of his request for the judgement of the conviction to be overturned.
0)
TABLE OF CONTENTS
Index of Authorities
Statement Regarding oral Argument .i
Statement of the Case
5
Statement of Procedural History
Grounds for Review
Argument with Authorities
Prayer . .
Appendix . _i3
£er-Mic It
(2) Motion for Rehearing was filed Pro Se on /^ day of AlUV' 201!
(3) Motion for Rehearing was disposed/ overruled on /i^r klPV'i
/ day of A*
.2015.
(ti
GROUNDS FOR REVIEW
1. Incomplete record denied the Appellant a proper review. -
Motion for Rehearing.
2. Court of Appeals failed to apply the proper standard under Texas
Rules of Appellate Procedure when there is a 4th Ammendment:
violation.
3. Standing was established as the contraband was removed from
a personal safe. RR vol 22 States Exhibit No. 7
4. Affidavit for Search Warrant was sealed at the time of service
and did not travel with the Search Warrant. RR vol 22 Joint
Exhibit no. 1.
5. Search Warrant is ffacially invalid- as it fails to particularly
describe the place to be searched, and the persons or things
to be seized. RR vol 22 Joint Exhibit No. 2.
6. Examining Trial Feb. 4th, 2013, Order from Examining Trial
signed April 8th 2013 of No Probable Cause for the specific
offense of Sexual Assault. Now see CR page 90. Is this abuse of
discretion?
6)
ARGUMENT WITH AUTHORITIES
Texas Rules of Appellate Procedure 44.4(a) Remediable Error of
the Trial Court. The Record is Incomplete. All hearinqs and
rulings and orders Pre-Ihdictment have been left out. Green v
State 872 S.W.2d 717,721 (Tex Crim App 1994) "An examining trial
...is arguably a critical stage for purposes of Sixth Amendment
analysis." The judge signed a final order of No Probable Cause
ofii; the specific offense that the Court of Appeals continues to
prevail on as it tries to keep this Invalid Affidavit for Search
Warrant alive. order signed April 8th, 2013.
State v Cullen 195 S.W.3d 696,700 (Tex Crim App 2006) "Because
•- ' '• '• -"" • ••"'• ' "' ' ••.•• -—I.. Il.l- ••••••• I. .1 • I . . . n , ••••—•••• ••••I... ••••••- Wto I. II..
an Appellate Court's review of a Trial Court's ruling is re-'
•
stricted by an inadequate record of the basis for the Trial Court's
ruling, we find it necessary to require a Trial Court to express
its findings of the fact and conclusions of law when requested by
the losing party." If the court of appeals would have had a
complete record of all proceedings in this case, Writ #07259,
Cause No. 29110, the outcome would have been different.
Texas Rules of Appellate Procedure 44.2(a) Constitutional Violation
Court of Appels errored when it did not consider the full 4th
Amendment to the Constitution of the Unitied States. The SHt
4th Amendment states that no warrants shall be issued without
3 things - Probable Cause, Oath or Affirmation, and particularly
describing the place to be searched and the persons or things to
be seized.
The Court of Appeals has used the wrong analysis. Tijerina
mum iii iii am — — m
v State 334 S.W.3d 825,835 (Tex App - AmarilLo 2011, pet ref'd)
"We review the harm resulting from a trial court's erroneous
denial of a motion to supress and subsequent admission of evidence
obtained in violation of the [U.S. Const] Fourth Amendment under
——• v> "
the constitutional standard of the [TRAP] 44.2(a). Under 44.2(a)
«*—__ — ' ——-——-—————————————— —
"We evaluate the entire record in a aeutral, impartial, and even-
handed manner, not in the light most favorable to the prosectution."
Pham v State 324 S.W.3d. 869, 874 (Tex Crim App - Houston [14th
Dist] 2010 pet ref'd) "Standing is a question of law which we
m i /
review de novo... only after a defendant has established standing
C8)
to complain may a court consider whether >he suffered a sub-
i
stantive Fourth Amendment or Art.l sec. 9 violation."
State v Daugherty 931 S.W.2d 268,270 (Tex Crim App 1996)
"The language of Art. 38.23 plainly does not accomadate a doc-
trine of inevitable discovery."
Nowhere in the Affidavit for Search Warrant is it spoken or
suggested that a search of any locked boxes or safes would further
the investigation. The officers removed the safe and took it
inside the police station, Beyond the scope of what the warrant
allows. The terms 'locked boxes' and 'safes* in the warrant is
over-broad. They do not particularly describe.
•*
Rios v State 901
m mi i i i i ••• ••• i •
S.W.2d. 704,706 (Tex App - San Antonio 1995, no pet.) "Both the
' — i
Texas Constitution and [CCP] provide that a search warrant
—» •••••• i- ' • .I., ii— i—. ••" . ' i. i • •i i — .i
describe the place to be searched Tas near as may ber. A valid
search warrant must cgntain a description of the place to be
searched [HI]- The description contained in the affidavit
limits and controls the description contained in the warrant."
The search warrant is facially invalid. Exactly what our
constitution is intekled to protect against. Warrants that are
facially invalid and do not particularly describe can not be
considered as anything but unreasonable.
Groh v Ramirez 540 U.S. 551 (2004) The Supreme Court Justice
Stevens held that:
(1) Search warrant that utterly failed to describe the persons
or things to be seized was invalid on its face, not withstand-
ing that requisite particularized description was provided
«—h—— III nil- •• I I II I • •• » II — — ^ — ! • — — I — ^ — • - ^ — • ^ — i ^ — — ^ ^ — 1 ^ ^ — 1 ^ ^ ^ ^ —
in search wqrrant application;
(2) residential search that was conducted pursuant to this
facially invalid warrant could not be regarded as "reasonable"
though items to be seized were described in search warrant
application and though officers conducting search exercised
restraint in application; and «•
(3) agents who had prepared and executed warrant were not entitled
to qualified immunity from liability.
CK
"Search warrant that utterly failed to describe the persons or
things to be seized was invalid on its face... and where appli^
cation, having been sealed, did not accompany warrant. A facially
invalid search warrant can not be cured by an incorporated aff-
T - . . . _____ —' ' ' """*" ' '" ^
idavit. Especially when the affidavit was sealed."
Co)
PRAYER
«_IM*M_a__
Appellant prays this Honorable Court will qrant Discretionary
Review in this case and reverse the judqement of the Court of
Appeals and acquit him. Appellant further prays for all other
lawful relief to which he my be entitled", at law or in equity.
Sincerely Submitted,
Pro Se
Mark Eugene Engle
899 Fm 632
Kenedy, TX 78119
TDC#1958430
6t)
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and
foregoinq instrument was served on all parties to this petition
by U.S. Postal Service on J2.7 day of AlQ}fPAlMO(>y~ 2015.
ProSe
Mb* TFeKVL ItfVl
DECLARATION
i HefeBy swear under penalty of perjury that everything contained
in this petition is true and correct to the best of my knowledge.
Pro Se
Mark Eugene Engle