35 55(0‘// MARCH 16, 2015 KENNEIH RAY BRowN #334618 JAMES v. ALLRED UNIT 2101 FM 369 N lowA PARK, Tx 76367 cLERK oFFIcE cOURT 0F cRIMINAL APPEALS P.o. Box 12308, cAPHOL STATION AUSHN, "D< 78711' Re: TRIAL COURT NUMBER: 348455-F EX PARTE KENNETH RAY BROWN WRIT NUMBER: WR-33,336-11 ` cLERK, , ENCLOSED 13 AN ENUMERATED MUHON To BE FILE AND CoNSiDER~ UNDER THE: ABOVE sTYLED AND NUMBERED _WRIT. M©'HON DE§KG\“\“§SD KENNETH RAY BROwN DATIE: . _ BYZ Xé:_'_ *" RECE|_VED |N COURT OF CR|M|NAL APPEALS MAR 24 2015 CCFILED: . . AbesAcosva,ceerk ONE OF ONE PAGE IN THE coURT oF cleNAL APPEAls § Ex PARTE ., 1 § No. 348455-1? KENNEJ:H RAY BRowN, ` ' Movant. ` (/.`/> ENUMERATED MOTION This motion is submitted PRO SE by KENNETH RAY BRGWN herein called'"BROWN or MOVANT" and this motion is presented pursuant to the Rules of lexas Courts. This enumerated`motion is directly relating to the alleged asserted proceedings v and merits (law) presented in the current 11.07 writ of habeas corpus application filed under the above styled and numbered. Which 11.07 application has been recommended for dismissal by the Judge Presiding, 248th District Court of Harris County7 Texas on the day of February 2, 2015. The current submitted ll.O7 application brought forth the uneguivocal rule _making it unconstitutional to try a person for a felony in a State Court unless that person had a lawyer or had validly waived oneo -However, in the current 11,07 application therewith the moRANDUM -BRIEF IN sUPPoRT and EXHIBITS or THE oFFIciAi C§URT §§ RDS. Brown allegeL and asserted'such unequivocal rule of being prevented and/or deprived counsel representation at any critical §§ag§_that affects substantial rights of the criminal process is clearly the exceptional to all state's procedural bar from being applied in order to dismiss any writ. Such exceptional includes the procedural bar of TEXAS CODE OF CRI&INAL PROCEDURE ARTICLE 11,07 § é(a) where the recommendation for dismiss of Brown's current 11#07 has been relied upon and applied. A~ Therefore, this enumerated motion is to point-out specific facts and circumstances / 1 ‘ \ thereto the proceedings and merits where Brown as an indigent defendant/appellant * had been prevented and/or deprived right to appointment of counsel occurred for this HONORABLE COURT to consider in GRANTING the current 11 07 application pursuant to the VOlD JUDGEMENT EXCEPTION TO THE GENERAL RULE. However, in this enumerated motion as to the reason(s) for this motion is to determine whether the DISTRICT ATTORNEY and PRESIDING dUDGE both of Harris County, Texas intentionally or inadvertently overlooked, misplaced, disregarded, or decided. to give no due respect to State and Federal law that recognizes and what constitutes a VOlD JUDGMENT, Which precise void judgment, as presented in the current 11.07 is the ADJUDICATION JUDGMENT UNDER CAUSE NUMBER 10-83~095-CRq Thus, as to the Court’s consideration for granting the relief sought, it must be determine whether Brown's current 11 07 application claims meets the requirements thereto the exception, or immune, or exempt from the provisions of the state' s independent general rule of 11,07 § A(a). SEE MEMORANDUM BRIEF ld» at 2-7. I. PROCEEDINGS TO GRANTED STATE'S PETITION`FOR DISCRETIONARY REVIEW Movant moves and urges this HONORABLE COURT OF CRIMINAL APPEALS to take the responsibility [where District Attorney and Presiding Judge failed] thereto examining the submitted EXHIBITS of the OFFICIAL COURT RECORDS attached to the memorandum v brief, or the official court records that District Attorney and Presiding Judge relied upon. See State's Original Answer Id. at 2. l l However, Brown asks the Court to examine (exhibits) the proceedings following, (1) where the State's Petition for Discretionary Review (PDR)_was granted, (2) where the Court in its OPINION of the granted-State's PDR decided to apply a NEW STATE RULE OF LAW concerning HARMLESS ERRORS, (3) where the Court decided to remagd" Brown's successful reversal gf_the trial court's conviction for reconsideration, and ordered the Tenth-Court of Appeals to apply the NEW STATE RULE OF HARMLESS ERROR STANDARDS under ALMANZA V, STATE9686 S.W.Zd 157(TEX.CRIM.APP.1985) to Brown's contention that originally reversed the conviction§ and (4)_Thus, the records must_ `be examine where the District Attorney and Presiding Judge failed to acknowledge, or consider that the NEW STATE RULE under ALMANZA came into existence gl_mgg§h§ §§Ee£ Brown's APPELLANT'S BRIEF filed on direct appeal; and rule came into existence several months after the initial reversal of trial court's conviction by the Tenth Of Appealsq SEE ALL EXHIBIIS AND MEMORANDUM BRIEF ld. at 7-11 and 14~18. Il. MERITS (LAW) TO THE ABOVE SIAEED PROCEEDINGS Movant moves and urges this HONORABLE COURT OF CRIMINAL APPEALS to consider the_ above facts and circumstances to the stated proceedings as to the merits (law) where District Attorney and Presiding Judge failed to examine thoroughly the Submitted EXHIBITS of court records and/or disregarded.violations of constitutional rights-that rcontributed (inception) and/or violations that constitutes a VOID JUDGMENT as pres _sented in ground two of the 11.07 application as to (1) §Q_§QIL§§ were sent to the parties and state attorney that a PDR had been granted pursuant to T,R`A P. 69.4(b), (2) §§ GOUNSEL APPOINTED for Brown to advise him of the consequences thereto the granted PDR. Which granted PDR reinstated the conviction and innocence,_SEE`TEX. .'CODE CRIM. PROC. ANNn art. 1.051(d)(2), and (3) §§ §BIEE`RESUBMITTEB on Brown's _behalf nor 8tate as_to complying with T.R.A?P, 70 ij 70.2 and 70.3¢ Also see the MIMORANDUM BRIEF ld. at 7-11 and 18- 21. g III. PROCEEDINGS FULLOWING REMAND BY COURT OF CRIMINAL APPEALS Movant moves and urges this HONORABLE COURT OF CRIMINAL APPEALS to take the ` responsibility [where the District Attorney and Presiding Judge failed] thereto examining the submitted EXHIBITS of the official court records attached to the memorandum brief. Brown asks the Court to examine the proceedings following (1)where . the court of criminal appeals decided to remand Brown's successful reversal of the trial court's conviction for reconsideration, and (2) where the Tenth Court of Appeals following remand for reconsideration applied to Brown's contention that' originally reversed the conviction; the NEW STATE RULE OF LAW FOR HARMLESS ERROR-` STANDARDS pursunat to ALMANZA. Thereby the Court affirmed the trial court's conviction. IV. MERITS (LAW) TO THE ABOVE STNTED PROCEEDINCS Movant moves and urges this HONORABLE COURT to consider the above facts and circumstances to the stated proceedings as to the merits (law) where the District Attorney and Presiding Judge failed to examine_thgrgughly the submitted EXHIBITS _of court records and/or disregarded violation of constitutional rights and/or` violations that constitutes a VOID JUDGMENT as presented in ground three of the 11.07 application as to (1) where following the rema§d by the Court of Criminal Appeals the direct appeal had now by state law been reinstated to the first level of the direct appeal. SEE THE MANY RULINGS BY THE COURT OF CRIMINAL APPEALS UNDER Ex PARTE 10PEZ,763 s.w.2d 427; RoBINsoN v. sTATE,790 s.w.zd 334; williams v-. »~sTATE, 790 S.W.Zd 337; THEUS V. STATE,863 S.W,Zd 489;4JENNINGS V. STATESQO S.W.Zd 809; GLIVER v. sTAir,S_<)i s.w.2d 651; JEsUs RF_:LcH-BACOT v. sTATE,QSZ vs.w.2d 542.AND HUFF V. STATE,807 S.W.Zd 325; ALSO SEE MEMORANDUM BRIEF ld. at 11¥14 and.18-24. And (2) where following Brown's failure to submitted.brief within 30 days following the remand §§ §§Il§§'were sent to the parties nor the 248th District Court (trial court) of this failure to submitted brief. SEE T.R»A;P. 38.8(b)(1)(2)(3) and (4)3 and (3) where §Q_COUNSEL APPOINTED for Brown following remand, and where the court records reflects Tenth Court of Appeals made an argument for the State in order to apply AlMANZE and affirmed the adjudication judgment under cause number 10-83-095-CR. sEE TEx".coDE cRiM.PRoc.ANN-. art. 1.051(<1)(1§ and 1.051(¢) and 44.02 which grants right to appeal the trial court's conviction; ALSO SEE T R.A.P. RULES 38.1(h) and 38.2(a)(1) which requires that the parties advance their argument. Also See MEMORANDUM BRIEF ld. at 23. ' - ,~- V. QUESTIONS OF lAH'THERETO A VOID JUDGMENT~ Throughout this motion and Brown's current 11.07iapplication, the QUESTIONS OF LAW clearly are (1) whether counsel should have been appointed for the Appellate Proceedings that actually decided Brown's fate_as presented in the 11.07 habeas corpus. See grounds 2,43;~4 and 5. (Z) Whether the failures by State-Courts to appoint Brown counsel as presented in the habeas corpus ground 6 created a JURISDICTIONAL bEFECT, and (3) whether the District Attorneyis and Presiding Judge's recommendation for dismiss of the 11107 habeas corpus pursuant to the provisions of 11.07 § A(a) is the proper cure for justice, without first addressing the"issues; pursuant to the VOlD JUDGMENT EXCEPTION TO THE GENERAL RULE? SEE GROUND ONE. VI. STAIE AND FEDERAL LAW`VIOLATIONS THAT CREATES A.VOID JUDGMENT This enumerated motion, same as the 11.Q7 application set forth ADVERSARY JUDIC_TAL PRoctEDINGs that this HoNoRABLE coURT oF GRIMINAL APPEALS long-ago agreadad with federal law thereto the UNITED STATES CONSTITUTION pursuant to the'SlXTH AMENDMENT that any proceedings, or adversary judicial proceedings that may result in punishment by confinement, the indigent defendant/appellant must be afforded appointment of counsel for the defense. SEE GIDEON V. WAINWRIGHT,372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.Zd 799(1963) AND UNITED STATES V. CRONIC,466 U.S. 684, 653, 104 s§ct. -2039, 2043 _30 L.En.za 657(1984):, l l This HONORABLE COURT in its countless rulings have always reversed §_judgment as to ruling in accordance with FEDERAL LAW pursuant to the SIXTH AMENDMENT and the UNITED STATES SUPREME COURT'S holdings under §§Q§Q§ and §§Q§;Q_where the records reflects [AS IN BROWN'S CAUSE] the indigent defendant/appellant was without counsel at a critical stage of the criminal process that affects substantial rights. This HONORABLE COURT also have always reversed §_judgment in violations of State f’~\' law that protects, provides and ensures the indigent defendant/appellant with the 5 provisions Of the SIXTH AMENDMENT'RIGHT TO COUNSEL REPRESENTATION. See State Law TEXAS CODE OF CRlMlNAL PROCEDURE ARTICLE 1.051(d)(1)(2) and 1.051(c)¢ Vll. VIOLATIONS OF AN ADVERSARY`dUDICIAL PROCEEDINC WITHIN ITSELF THAT CONSTITUTES A.VOID JUDGMENF THIS ENUMERATED MOT_ION, sAME As 1111 11_,07 APPLICATioN coNCERNs PRocEEDIN¢s AND MER11s (i.Aw) 1HAT wouu) RENDER THE ADJUDICA;FION JlmGMENr UNDER cAUsE NUMBER 10-83-095-CR A' volD Juncmm'r As 10 (1)` wHERE THE sTATE's PDR wAs GRANIED IN o_RI)E_R»10 APPLY THE_` Nliw srATs' lAw. oF HAmuEssERRoR.-`sTANDARDs *i>l__msUArzT IOMMDV.'51A11,686 s.wi 2d 157 `(TEx.cRm.APP.1985_). sUcH NEw sTATE law AT\ ms 111411, 1 C.LEARLY wAs A NEw PRocEEDING 1N rim APPEiiATE _c;oURT. waldi'was INTR0000E 10 BRowN's DIRECI APPEAL 10ch 1HE GRAN'HNG 0F 1111: sTATE's PDR.' sUcH _ADVERSARY PRocEEDiNG IN 'IHE couRT 0F cRmiNAL APPEALS cL'EARLY wouLD 1=1\11111_1_~: BRowN 'APPoINn/IENT 0F ooUNsEL,_ 7(2)»11111;&‘. BRowN's CAsE As 10 1113 succrssFUL DIREcr APPEAL -wAs -R_mANDED. BY ms ooURT' oF cRmINAL APPEALS 1N~ oRDER 10 APPLY ALMANZA PRovISloNs 10 1‘HE'cAsE.` sum ADVERSARY .PRoc_EEDING;As 10 APPLYmG 1313 NEw srATE RuLE 10 BRowN's' cAUSE, CLEARLY ENHTLE HIM 10 APPoINmn¢r OF` couNsEL 1117 0RDER 10 ADvIsE HIM As 10 FILING BRIEF_ oR 011/it ARGUE oN Hls BEHALF BEFORE 1HE 1111111 ooURT APPLIED 1HE _Ntw 'RULE AND DEPRIVED BRowN QF _Hls LIBERTY.' sEE ALL EXHIBITS AND ALL GROUND 0F ERRORS PRESENTED liN ms MmoRANDUM.' §§§ WHEREFORE, PREMISES CONSIDERED, Brown/Movant prays this HONORABLE COURT OF n CRlMlNAL APPEALS would consider this ENUMERATED MOTION as to all.the pointed out facts, circumstances therewith state and federal law where all stated herein clearly constitutes a VOID JUDGMENT. Brown prays this HONORABLE COURT would examine the OFFlClAL COURT RECORDS to determine whether Brown was prevented, deprived and/or without the benefit of counsel at all proceeding following the STATE'SqREQUESTED AND GRANTED PETITIQN'FOR'DISCRETIONARY'REVIEW. Brown prays this HONORABLE COURT 6 would granted the relief sought in the current 11.07 habeas corpus filed under number 3484551F for reasons the ADJUDlCATlON JUDGMENT under cause number 10-83"095jCR is-a VOID JUDGMENT for it was rendered in violation(s) of the UNlTED STATES CONST- 0111101\1 sixth AME_NDMENT RIGHT 10 coUNsEL REPREsnmATION. Thar_aby auth ruling any previous filed 11.07 habeas corpus to the void adjudication judgment also is void. Respectfully submitted, mm 1‘,~=:11-1. PAY_ ' _ JAMES v. ALLRED UN11 2101 FM 369 N 10wA PARI<, 1x 76367 Service has been accomplished by sending a copy of this motion to the following address: DISTRICT AITORNEY'OFFICEF HARRIS COUNTY, TEXAS 1201 FRANKLIN, SUITE 600 HOUSTON, TEXAS.77002 ' _/7% ;/¢Irf§t/t _ SIGNED this §§th day of 1 y, 2015 CCFILED: