Tawater, Royce William

253*t5 «X5V^5 CAUSE NUMBER: PD-0253-15 IN THE COURT OF CRIMINAL 0R1G! APPEALS OF TEXAS court of cRmmumis ROYCE WILLIAM TAWATER, Petitioner* APR 01 2015 vs. AbelAcosta, Clerk THE STATE OF TEXAS/ Respondent. Seeking Review of the Sixth District Court of Appeals' Judgement and Opinion in FILED IN Cause No: 06-14-00094-CR COURT OF CRIMINAL APPEALS APR 012015 PETITION FOR DISCRETIONARY REVIEW Abel Acosta, Clerk Oral Argument is Requested Royce W. Tawater, Pro Se TDCJ-CID #1950643 Beto Unit 1391 FM 3328 Tennessee Colony/ Texas 75880 CAUSE NUMBER: PD-0254-15 IN THE COURT OF CRIMINAL APPEALS OF TEXAS ROYCE WILLIAM TAWATER/ Petitioner/ vs. THE STATE OF TEXAS/ Respondent. Seeking Review of the Sixth District Court of Appeals' Judgement arid Opinion in Cause No: 06-14-00095-CR PETITION FOR DISCRETIONARY REVIEW Oral Argument is Requested Royce W. Tawater/ Pro Se TDCJ-CID #1950643 Beto Unit 1391 FM 3328 Tennessee Colon// Texas 75880 TABLE OF CONTENTS Page II. IDENTITIES OF PARTIES AND COUNSEL ii III. INDEX OF AUTHORITIES ii IV. STATEMENT REGARDmS ORAL ARGUMENTS 1 V. STATEMENT OF THE CASE 1 VI. STATEMENT OF PROCEDURAL HISTORY 2 VII. GROUNDS FOR REVIEW 3 VIII. ARGUMENT AND AUTHORITIES 3 IX. PRAYER 5 UNSWORN DECLARATION 7 CERTIFICATE OF SERVICE 7 APPENDIX Appointed appellate counsel transmitted a single copy of the Sixth Court of Appeals' Opinion/Judgements. Petitioner has no means to photocopy those documents in order to in clude them in this petition. However/ the originals are on copy with the clerk of the appellate court. -i- II* IDENTITIES OF PARTIES AND COUNSEL ROYCE WILLIAM TAWATER PETITIONER DAVID COUCH TRIAL COUNSEL 2815 Wesley St., P.O. Box 324 (appointed) Greenville/ TX 75403 KATHERINE FERGUSON APPELLATE COUNSEL 2900 Lee St./ Ste. 102 (appointed) Greenville/ TX 75403 STEPHEN B. LILLEY PROSECUTOR HONORABLE RICHARD A. BEACOM, JR. TRIAL JUDGE III. INDEX OF AUTHORITIES Page BILLIE V. STATE/ 605 S.W. 2d 558 (Tex. Crim. App. 1980) 4 BLACKSHEAR v. STATE/ 385 S.W. 3d 589 (Tex. Crim. App. 2012) 4 BRITT vi N. CAROL.* 404 U-S. 226 (1971) 3 STRICKLAND v. WASHINGTON/ 466 U.S. 694 (1984) 5 WHITE v. STATE/ 823 S.W. 2d 296 (Tex. Crim. App. 1992) 3/5 -ii- TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS: COMES NOW/ ROYCE WILLIAM TAWATER/ "Petitioner" pro se in the above-styled and numbered cause numbers* and pursuant to Rule 68 of the Texas Rules of Appellate Procedure, this Petition For Discretionary Review/ and for such/ Petitioner would respectfully show this Court as follows: IV. STATEMENT REGARDING ORAL ARGUMENT This petition challenges the court of appeals' holding that A) the trial court did not err in denying counsel's request for a reporter's record from a prior pro ceeding, and; B) trial counsel was not ineffective for failing to properly request such reporter's record. These types of arguments appear to be improper in light of prior decisions from this Court. These are important issues of law and these types of arguments aree frequently appearing in appellate decisions from the various courts of appeal and the bench and bar of this Court and need clarification from this Court concerning whether these types of arguments are appropriate. Therefore/ this Court should grant oral argument so that counsel for both sides may more fully present their positions and answer any questions this Court may have after prelim inarily reviewing this case. V. STATEMENT OF THE CASE Petitioner was charged with the offenses of aggravated assault with a deadly weapon.- (trial number 29,310), deadly conduct discharge firearm, (trial number 29/311), aggravated assault with a deadly weapon, (trial nuniber 29,502), and; un lawful possession of a firearm by a felon, (trial number 29/503), (CR: 1). After a jury was selected/ seated and sworn the four causes were tried together in Feb ruary, 2014. The jury convicted Petitioner of the offense of possession of a fire arm by a felon/ but could not reach a verdict on the other three charges. However* the following month another jury was seated and subsequently convicted Petitioner Petitioner has included a request to consolidate booh of the instant case for eocnoray; both cases enaangasa the sans record. Appellate counsel filed a "consolidated brief in this cause. of Deadly Conduct Discharge Firearm/ (#29/311; C.O.A. #06-14-00095-CR; PD-0254-15)/ and; Aggravated Assault W/beadly Weapon, (#29,310; C-O.A. #06-14-00094-CR; PD-0253- 15). The Sixth Court of Appeals affirmed the trial court's Judgement/ (Possession of a firearm by a felon, ##29,503/ C.O.A. #06-14-00075-CRz PD-0004-15) on December 10/ 2014. Petitioner filed a timely petition for discretionary review in that cause. Additionally/ the Sixth Court of Appeals affirmed the trial court's jud gements in case numbers 06-00094-CR & 06-14-00095-CR. In the instant cause numbers/ appointed appellate counsel filed a consolidated brief arguing that there was error in the trial court's denial of trial counsel's request for a copy of the reporter's record from a prior proceeding, and; trial counsel was ineffective for failing to properly request such reporter's record. In a three-part standard of review, the Sixth Court of Appeals opined: I- RECORD OF PREVIOUS TRIAL: a reviewing court is to consider: 1. The value or the transcript to the defendant in connection with the appeal or trial for which it is sought, and 2. The availability of alternative devices that would fulfill the same functions as a transcript, (citing: BRITT v. N. CAROL./ 404 U.S. 226, 227 (1971)(Opinion §2) 11• PRESERVATION OF ERROR: "As a prerequisite to presenting a complaint for appellatereview/ the record must show that*•-the complaint was made to the. trial court by a timely request, objection, or motion." (citing: Tex. R. App. Prcc 33.1(a)(1)(Opinion 04) IIX- IMBFFECTIVE ASSISTANCE OF COUNSEL: Appellate counsel "failed to show a reasonable probability that the outcome of [Petitioner's] second trial would have been different had [trial] counsel requested the reporter's record from the first trial."(citing: STRICKLAND v. WASHINGTON, 466 U.S. 694 (1984)(Opinion §8) VI. STATEMENT OF PROCEDURAL HISTORY Appointed appellate counsel/ Ratherine Ferguson, has wholly failed to transmit copies of the Brief Of Appellant, Clerk's Record, and Reporter's Record to Petitioner in the instant causes in order that he may more fully, specifically, cite the record*. The Sixth Court of Appeals issued its Opinion/Judgement on February 4, 2015. Counsel transmitted the Opinion/Judgement six (6.) days later. Upon receipt of the Opinions/Judgements, (02/17/15), Petitioner filed motions to extend the time to file the petition for discretionary review £ suspend Rule 9.3(b) on March 6, 2015, which the Court granted on March 6, 2015. The current deadline to file the petition is May 5/ 2015. Petitkner has te>pt counsel updabad with current addcess changes. Also, on January 1, 2035 Pet itioner fpprrifinally asted counsel fbr the record in this cause. Tb this date counsel has failed to respond to that request. .VII;. GROUNDS FOR REVIEW 1. The Sixth Court of Appeals