JQ tt?- 03
IN THE COURT OF CRIMINAL APPEALS
iVIOTIGW DISMISSED
FOR THE STATE OF TEXAS
BY: UT^
IN CAUSE NO. CR21120-A
EX PARTE § ON APPEAL FROM THE 35TH
GARY DON BEASON § JUDICIAL DISTRICT COURT
§ OF BROWN COUNTY, TEXAS
MOTION TO REBUT STATES RESPONSE
COMES NOW, GARY DON BEASON/ Appellant in the foregoing
cause and would show this Honorable Court the following in
response to the State's letter opposing Appellant's habeas action/
file dated October 27th/ 2014; of which/ Appellant received
his copy on January 21st; 2015.
First/ Art. 11.07(7) requires the State to notify Appel
lant's Attorney/ or Appellant in a Pro se filing/ when he
responds to the habeas action.
Appellant was not in reciept of the State's letter in re
sponse, and filed a motion requesting the Court to instruct
the State's Attorney to return service upon Appellant. The
Court clerk forwarded a copy of the State's letter with her
notice of the District Court's forwarding of habeas action
to the Court of Criminal Appeals.
I mention this merely to show why the Appellant response
is late.
RECEIVED IN
COURT OF CRIMINAL APPEALS
FEB 02 201§
i.
Appellant did file an affidavit in support of his habeas
application upon recieving an order from the Court inviting
him to do so; however/ he could not respond to the State's
brief letter as he was not served until now.
The State's Attorney alleges Appellant has forfeited his
right to raise this claim on collateral appeal as the trial
court heard his motion to dismiss/ and denied it. And his
Appellate Attorney did not raise the issue on direct Appeal.
Quoting Ex Parte Clore, 690 S.W.2d 899, 900(Tex.Crim.App.1985).
This is exactly why Appellant's second ground alleges
ineffective assistance on Appeal.
The State further adds that jurisdiction is not contingent
on whether indictment has a defect of form or substance. Quoting
Teal v. State, 230 S.W.3d 172/ 177(Tex.Crim.App.2007).
Both points can be clearly argued by using the standard
set forth in Aguilar v. State, 846 S-W.2d 318 (Tex.Crim.App.
1993). This Court clearly established that Texas Constitution
Art. 5 § 12(b)/ authorizes jurisdiction in indictments. Any
challenges must be made prior to trial via motion to dismiss/
or quash. See also Ann. Art. 1.14(b) Tex.Code of Crim.Proc:
or, the right to challenge is waived.
Once that jurisdiction is challenged/ via motion to quash/
prior to trial on the merits/ if the defendant does not prevail
in his challenge/ it becomes first requirement on direct Appeal.
The Court also held in Aguilar, supra, an indictment lacking
fundamental requirements effect jurisdiction/ and jurisdictional
issues can be brought up anytime.
2.
The Court defined fundamental requirements as:
1) fewer than number of grand jurors voted on true bill.
(According to minutes of the grand jury).
2) failure of the actual foreman of the grand jury to deliver
the bill to the Court Clerk.
3) forgery of the foreman's signature.
4) inadvertant signing and returning of a bill in a case not
reviewed by grand jury.
Appellant asserts that in any case the Court clerk may
not certify document. And without the statutory required certi
fication set forth in Art- 25.01 T-CCP. the indictment is
not legal sufficiency of notice.
As appellant stated in his motion to dismiss/ the document
could have been produced on any computer and defendant has no
idea of the true nature of the indictment on record accusing
him.
Therefore without due process of law, that is guaranteed
by the 14th Amendment of the United States Constitution/ and
backed up by the legislative statute of Texas, and previous
Court of Criminal Appeals decisions/ an indictment that is not
certified by the Court Clerk is insufficient notice. And without
sufficient notice of charges one cannot prepare a defense/ there
fore jurisdiction is voided.
This Court has held that when interpreting legislative
intent and/or purpose/ we necessarily focus our attention on
the literal text of the statute in question. Yet a third reason
for focusing on the literal text is that the legislature is
constitutionally entitled to expect that the judiciary will
faithfully follow the specific text that was adopted. Boykin v.
State/ 818 S.W.2d 782 (Tex.Crim.App.1991).
This court held in Campbell v. State/ 49 S.W-3d 874 (2001)/
where the statute is clear and unambiguous the legislature must
be understood to mean what it has expressed/ and it is not for
the Courts to add or subtract from it. See also Coit v. State,
808 S.W.2d 473 9Tex.Crim.App.1991) quoting Ex Parte Davis/ 412
S.W.2d 46 (Tex.Crim.App.1967).
Therefore Appellant would ask this Honorable Court: Can
the District Courts interpret legislative intent and purpose,
and disregard Art. 25.01 of Tex.Code of Crim.Proc? Also does
Court Clerk certification rule meet ambiguous/ and instructive
guidelines/ or is it. mandatory?
Appellant's claim that the court lacked jurisdiction is
not merely premised on - a defective indictment; but rather/
insufficiency of legal/ statutorily required notice of charges,
which call into question the jurisdiction of the Court to hear
the case.
Art. 27.03 V.A.C.C.P. at (28) shows this Court ruling as
far back as 1910 in Johnson v. State, 60 Tex.Cri. 305, 131
S.W. 1085(1910), that the presentment of indictment against
accused had not been entered on the minutes of the Court and
that certified copy had not been served on the accused/ while
a ground for postponing the trial/ was no ground to quash the
indictment.
4.
Also/ when a defendant petitions for sufficient notice
of the State's charge by motion to quash/ adequately setting
out the manner in which notice is deficient. The presumption
of innocence coupled with the right to notice requires that
he be given such notice. Drumm v. State/ 560 S.W.2d 944(Tex.
Crim.App.1977).
Also, Constitutional right to adequate notice of charges
against an accused from face of indictment is substantial right
invoked by filing motion to quash for insufficient notice.
Jeffers v. State/ 646 S.W.2d 185 (Tex.Crim.App.1981).
At hearing on applicant's motion to dismiss/ the State's
Attorney said: "If it's a matter of notice Mr. Beason has not
shown any variance in his copy/ and the State's copy." (R-R.
Vol. 5/ P.. 23).
Then/ when applicant submitted his copy of indictment into
evidence the State's Attorney said to the Court that there was
a variance and that the State's copy of indictment had been
amended. (R.R. Vol.5/ P.22/ Ins. 11-20).
The Couct then stated that a hearing was held, with defen
dant present/ to amend the indictment. (Paraphrased) (R.R.
Vol.5, P.23)-
The record will not support parties ever being present
at hearing. The first applicant ever knew of an amendment was
August 8th, 2011 at pretrial hearing where he waived his right
to counsel. (R.R. Vol.4, P.10).
5.
Court Clerk's supplemental record does reflect that the
A 7
State filed motion to Amend on •February 1st, 2011. Court ordered
Amendment on JPcDrecary 7th/ 2011. The order says, "after notice
••to defendant .-- Q^ £*k;Wf+s A *->0<
Defendant was never notified by Court/ or Counsel, of an
amendment to the indictment.
In applicant's original motion to dismiss he states at
paragraph five: "defendant therefore claims he was not served
in the manner prescribed by law and he has no idea the true
nature of the indictment on record accusing him."
Applicant is not an attorney and has no legal training
therefore he cannot be required to express with specific word
ing and phrases necessary to facilitate the Court's legal re
sponsibility toward him.
The Brown County jail provides no law library so legal
research was not an option ...point being, applicant's motion
to dismiss stated: he was not served in the manner prescribed
by law; which, is the same as saying he was not given legal
sufficiency of notice.
Applicant's ground one, at facts supporting/ clearly states
he was not given notice of charges as prescribed by legislature,
challenging jurisdiction.
6.
PRAYER FOR RELIEF
Therefore Applicant prays this Court recognizes prima facia
evidence in that he was denied his 14th Amendment right to
Due Process of law, and his 6th Amendment right to a fair trial
guaranteed by the United States Constitution.
Respectfully submitted.
_lhyf-po*\ 7£>ju*^&^
GARY DON BEASON
TDCJ # 1743056
McCONNELL UNIT
3001 S. EMILY DR.
BEEVILLE, TEXAS 78102
UNSWORN DECLARATION
I, GARY DON BEASON/ Applicant in the foregoing motion
do hereby declare under penalty of perjury that the foregoing
is true and correct to the best of my knowledge.
/3jusU*P^
GARY DON BEASON
DATED ON: ^/^-C 6? ~~ ' ^
7.
CERTIFICATE OF SERVICE
I, GARY DON BEASON/ the undersigned do hereby certify that
a true and correct copy of the foregoing motion to rebut State's
response has been sent to the Brown County District Attorney's
office at 200 S. Broadway suite 326/ Brownwood, Texas 76801,
by U.S. mail, on the £&7t\ day of ^JoJ^iAdn^y > 2015.
A*/y/&n Bjl0^0^
GARY DON BEASON
TDCJ# 1743056
MCCONNELL UNIT
3001 S- EMILY DR.
BEEVILLE, TEXAS 78102
8.
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