RECEIVED IN •DO COURT OF CRIMINAL APPEALS ITED STATE SUPREME, COURT OF TEXAS AUSTIN DIVISION APR 01 2015 LEON HARRISON, vi m : CASE: No . ! 4-1 3-M$&?faJBfo, Cl@rk Appellant ' PDR No.PD-0392-14, TC:#635921; CT : #230TH _.. _^ FILED IN THE STATE OF TEXAS, \ MjWVr^ COURT OF CRIMINAL APPEAL? APPELLEE.r* § APR 01 2015 APPELANT'S REQUEST COURT EN BANC TO CONSIDER COURT OF APPEALS DENIAL OF APPELLANT'S MOTION UNDER RULE. 60(b)(5) Abe) Acosta, Clerk Appellant bring this action to request the Court to En Banc on considering the denial of 14th Court of Appeals and the Texas Cou rt of Criminal's denial of Appellant prose motion under Rule 60(b) (5), and will show the Court the following: Statement Of Ease The nature of the Motion is from the 14th Court of Appeals, affirming the trial court's unfavorable findings under article 64.U4 of the Texas Code j.of Criminal Procedure, which was made on September 24,2012 (CR at 1 03)., Appellant timely filed his pro se notice of appeal, pursuant to art.64.05, on Uetooer 16,2012, (CR at 106). Appeant was appointed counsel in the appeal. On October 9,2013, appeal counsel filed Motion To Abate Appeal, pending the Court of Criminal App eals out in UHITFIEELD v. STATE ,No .01-1 2-00081-CR , 2013 uJii 2456720 (Tex. App.-Houston [1st Dist.] Dune 6 ,201 3 ,pet. granted .(. In that case, the court of appeals dismissed whitefiald's appeal of the trial court's un favorable findings for want of jurisdiction, citing STATE v. K0UL0WAY, 360 S.uJ.3d 480 (Tex.Crim.App.2012). The court of appeals summarized the holding in Holloway, as follows: [E]ecause a writ of habeas corpus is only (sic) way to obtain postconviction relief based on DNA testing, any opinion of a court of appeals reviewing a trial court's findings under arti cle 64.04 would bs advisory. Us lack jurisdiction to render ad visory opinions. Appellant's case is in precisely the same posture as Whitfield's was on appeal and since the Court of Appeals affirm the 1st Court's major ity opinion, the 14th Court of Appeal was obligated to dismiss the app eal irrespective of any substantive issue he may have. The 14th Court of Appeals refused to address appeal counsel's motion to abate appeal and Appellant's pro se motion to correct appeals record under Rule 34.6(f) and (d),T.R .A. P., before the appointment of counsel, and appeal counsel motion to withdraw from case. On February 27,2014 the Court of Appeals granted appeal counsel's mot ion to withdraw as attorney of record in the above cause number, Which inturn denied Appellant's pro se brief in this cause number. The Court of Criminal Appeals refused the Appellant's PDR thereafter. On 10/23/14, Appellant filed his Motion of Leave to File Under Rule 60(b)(5),Fed.R .Civ.Proc., and court denied motion as being time barred to invoke its jurisdiction. On 1/29/15, Appellant filed under Rule 60 (b)(5), to the Court of Criminal Appeal. The Court of Criminal Appeals addressed the issue by informing Appeals the Court no-longer had its appellate record. On 1/30/15, Appellant filed a motion to the Court of appeals to reconsider court' s denial of appellant's motion under Rule 60(b)(5) under Court En Banc. The court never addressed motion. Now Appellant motion this Court to address his motion under Rule 60(b)(5). REASON FOR MOTION UNDER RULE 60(b)(5) Under Rule 60(c), timely and effect of the motion. Appellant will sh ow this Court he is well inwhich the one year time limit of the court's judgment in both the court of appeals and the court cf criminal appeals. Rule 60(c) Federal Rules of Civil Procedure states: A motion under Rule 60(b) must be made within a reasonable time and for reasons (1),(2), and (3) no more then a year after the entry of the judgment or order or the date of the proceeding. (2) Effect on Finlity., The motion does not affect the judgment's finality er suspend it's oper ation, (d) other powers to grant relief, this rule does not limit a co urt's power to: (1) entertain an in-dependent action to relieve a party from a judgment, drder , or proceeding, (2) Grant relief under 23 U.S.C. §^1655. ta a defendant who was not personally notified of the act an: (3) Set_aside_a_judgment_for_fraud on the court, (e) bills aad writs s:dj abolished. The following are abolished: Bills of review, bills in the nature of bills of review, end writs of coram nobis, coram vcbis,and (audita querela) [law latin "the complaint having been head"] a writ available to a judgment debtor who seeks a rehearing cf a matter on grounds of newly discovered evidence or newly existing legal defenses. The writ of Audits Querela (=quarrel having been heard).. Introduced during the time of Edward III, was available to reopen a judgment in certain circumstances. It was issued as a remedy to defendants where on important matter concering his case arised since judgment. It issue was based on quitable, rather then common law pincipies. L.B.Curzon, English legal history 103 (2d Ed.1979) Audita querela is distinguished from coram nobis in that coram nobis attacks the judgment itself, whereas Audita querela may be directed against the enforcement, or further enforcement of a judgment which wh en redered was just and unimpechable. TA CCS. Audita Querela § at 901 (1980). Appellant case is a trial court's judgment not to find DNA results not favorable to Appellant's actual innocence claim inwhich he was excluded from the profile be DPS-crime lab, under Art.64.03-04 and 05 of Tex.Code.Crim.Proc. , which Appellant appealed to the 14th Court of Appeals. Appellant wa3 appointed appellate counsel which filed a motion to abate appeal pending the out-come of the Court of Criminal Appeals decision in, WHITFIELD v. STATE,'40.9 S.U.3d 11 (20013); Reversed by 2014 Tex.Erim.App.LEXIS 683; Reversed by 430 S.W.3d 405 (July 22,2014 CCA.)- 2014 Tex.App.LEXIS 7902. Appellant motions to the court of appeals and court of criminal appeals was timely inwhich Rule 60(c) states said motion must be made. PRAYER Appellant have met the required showing of Rule 60(b)(5) & (c), and pray that this Court will En Banc to consider the court of appeals den ial cf Appellant's Motion of Leave Of Court Under Rule 60(b)(5) and in all things grant this motion. Appellant reserved the right to appeal any denial of this motion to the U.S. District Court Of The Southern District Of Texa3. Respectfully submitted, ^?J^2- ^-^^U^C :.LE0N HARRISON #'.815719 P0LUNSKY UNIT 3e72 FM 350 So. LIVINGSTON, TX 77351 CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above aind foregoing pleading was requested by Appellant to the Clerk of the Court to forward a copy to the 14th Cdurt of Appeals and all parties. Respectfully submitted, LEON HARRISON #815719 APPELLANT-PRO SE 4. ri£C©VEL> DATE: 3/25/1 5 LEON HARRISON #815719 'N SUPREME CTOKr POLUNEKY UNIT octi^V^ ' 3872 FM 350 So. LIVINGSTON, TX 77351 APR 01 ?QJ5 BLMfe haw iHur-twfc, Uterh SUPREME COURT OF TEXAS ^ CHIEF JUSTICE WALLACE JEFFERSON ; "* PLACE 1, PO BOX 12248 AUSTlCNii TEXAS 7B711-224B RE: LEON HARRISON \l. STATE, No .1 4-1 3-00239-CR; TCNo. 635921; COURT # 230TH DISTRICT COURT OF HARRIS TEXAS, Dear Justice Jefferson: I would like to file this motion for the court under Rule 60(b)(5) and bring to the docket to be ruled upon. Please have the Clerk of Court file a copy with the 14th Court of Appeal sand ail parties a file date. Thank you for your time in this matter. Respectfully submitted, -^d^.^i^