June 29, 2015
Clerk of the Court
Court of Criminal Appeals
P 0 Box 12308
Capital Station
Austin, TX 78711
RE: Case No. PD-1505-14
Schlittler v State of Texas
Dear Clerk of the Court:
Enclosed, please find a Motion to Abate the Petition for
Discretionary Review to Allow an Out of Time Motion for New
Trial.
Would you please locate the file, and place same within, asking
the Honorable Court to consider this issue. Seeing how I have
been denied the effective assistance of counsel at both trial
and an appeal, the-r< interest of iustice and to conserve precious
judicial time, should hold valid to the motions merit.
Thanking you, in advance, for your assistance.
Respectfully,
David Schlittler # 1498090
Lynaugh Unit
1098 S Hwy 2037
Ft Stockton, TX 79735
cc: Melinda Flectcher ^C£/\/FD IM
Lisa McMinn COURT OF CRIUiuaI
Kenneth Nash CR!?^AL APPEALS
ML 022m
AhelAcQBta,aerk
CASE NO. PD-1505-14
IN THE COURT OF CRIMINAL APPEALS
DAVID SCHLITTLER V THE STATE OF TEXAS
ON DISCRETIONARY REVIEW
OF APPEAL NO. 12-13-00269-CR
IN THE TWELFTH COURT OF APPEALS OF TEXAS
.AT TYLER
MOTION TO ABATE THE PETITION FOR DISCRETIONARY REVIEW
TO ALLOW APPELLANT AN OUT OF TIME MOTION
FOR NEW TRIAL
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, David Schlittler, appellant in the above styled
and numbered cause, by and through himself, and respectfully moves
the Court to abate the PDR & Appeal and remand the cause to the
trial court for an out of time Motion for New Trial hearing pur
suant to Tex R App P 2 & 21. In support of this motion, the
appellant shows the Court the following:
I.
Appellant was appointed State Counsel for Offenders after
being charged with 'no contact with victim', pursuant to Texas
Penal Code 38.111 while confined in a penal institution.
The underlying conviction for which appellant is serving was
gained when appellant, unaware of counsel's misadvice & misrepre
sentations, gave a plea in exchange for the States offer of def
erred adjudication in Cause No. 366.81335.05, Collin County, &
subsequently revoked. This conviction has not been attacked due
to the suspension of the habeas corpus because of the State action
this motion is made for.
Subsequent to this matter being heard by a /jury, appellant
was convicted of same, and again appointed State Counsel for Off
enders for perfecting an appeal.
II-
Appellant was denied the effective assistance of trial counsel
due to the attorney/client relationship which was so poor, counsel
was not prepared to present a defense, nor expose one of the par
ticipants whose agreement & furtherance to participate in the mis
conduct which resulted in the State's knowing or unknowing use
of a materially false allegation which it used to gain the uncon
stitutional conviction. Further, by the operation of the enforce
ment of the penal code in question here, appellant was denied access
to witnesses for this cause & his habeas corpus.
III.
Although a person is not entitled to hybrid representation,
Ex Parte Bohannan, 350 SW3d 116, 118 n.l (TCA2011); Landers v State,
550 SW2d 272, 280 (TCA1977), an appellant is supposed to have his
-attorney assist him, in developing issues the appellant desires
to be considered, and appellant counsel has wholly failed to de
velop these issues. Once again, this relationship is so poor,
that appellant is being denied the effective assistance of counsel.
Trial counsel failed to file a Motion for New Trial as directed
to develop facts for appellate review, nor did she direct appellate
counsel to immediately consult with appellant to develop same.
While State Counsel for Offenders Appellant staff has pre
sented a meritorious question of law, there remains other larger
issues which Appellant Counsel has refused to present.
And, while habeas corpus is the usual preferred method to
develop ineffective assistance of counsel claims, appellant is
not entitled to appointment of same and thus, he is denied his
right to effective assistance of counsel at both trial & appeal.
IV.
Several questions are missitfg fratij the record which the Courts
need to consider in the application of Texas Penal Code charged.
Some of those questions include: (1) Has appellant been denied
his right to habeas corpus protected under the Texas Constitution
at art 1, § 12 & also the Federal Constitution's provision at Art.
I, sec 9, cl 2, & if so, does the application of this statute as
presently being presented, then violate Texas Constitution's
provision of art 1, § 29? ; (2) does the indictment even correctly
charge the appellant with a crime when the indictment incorrectly
alleges appellant's son, who is not the complainant, as the victim?;
(3) Is Texas Penal Code 38.111 ambigous in that it does not give
a person an understanding of what conduct it prescribes is illegal?
How can a person gain authorization from the family member to allow
contact with an alledged complainor, when the convicted is not
allowed contact with the family members?; & (4) Does this statute
harmonize with other statutes enacted and scattered through out
other, laws the legislature has enacted?
V.
The Honorable Court has heard arguments and appellants counsel
has filed a "Post Argument Brief" on May 27, 2015. It is unknown
by appellant, if any further action has yet been taken upon this
PDR. While the actions which have taken place appear colorful,
they have not brought to bear, substantial,.issues which should
be considered by the Courts to assist them in the application of
the statute to appellant.
Appellant has been denied his voice in these proceedings and
his concerns are meritorious. The fact that the appearance of
the Texas Department of Criminal Justice's "in house" legal team
'assisting' an individual TDCJ detains, does not appear correct
& is a conflict of interest. The entire proceedings, both at trial
& appeal, have been what appointed counsel individually want to
pursue, not appellants.
• VI.
The mandatory grounds for a new trial are found in Tex R App
P 21.3 & are not an exhaustive list. State v Evans, 843 SW2d 576
(TCA1992). One of the grounds which may be raised via a Motion
for New Trial is the ineffective assistance of counsel. Reves
v State, 849 SW2d 812 (TCA1993). The appellant has the absolute
right to the effective assistance of counsel at trial. United
States Const. Amends. VI, XIV; Texas Const, art 1, sec 10; Powell
v Alabama, 57 US $% (1932). Similarly, an appellant has the right
to the effective assistance of counsel on appeal. Evitts v Lucey,
105 SCt 830 (1983),
VII.
Texas Courts of Appeals have held that the period for filing
a Motion for New Trial is a critical stage at which a defendant
is entitled to the effective assistance of cousnel. See Prudhome
v State, 28 SW3d 114, 119 (Tex App - Texarkana 2000) disp on merits;
Henson v State, 11 SW3d 285 (Tex App - Houston [14th Dist] 1999,
pet ref'd); Massingill v State, 8 SW3d 733, 736-37 (Tex App - Austin
1999 order), disp on merits; Burnett v State, 959 SW2d 652, 654
(Tex App - Hosuston [1st Dist] 2007, pet ref'd).
When a defendant is deprived of effective assistance of coun
sel during the period for filing a Motion for New Trial, the remedy
is to reset the appellate time limits. Ward v SM'tE, 7.2Q; SW2d 794,
800 (TCA 1987)(en banc).
VIII
Appellant has not had "any opportunity at a meaningful manner
to present his trial or appeal" Ward, 740 SW2d at 800. Thus, as
a practical matter, Appellant 'received no assistance' as to the
substantive issues that he seeks to present on appeal and on PDR.
Accordingly, this Court should abate the PDR and Appeal and remand
the cause to recommence to the time period for filing a Motion
for New Trial, with the directive to appoint an attorney "outside"
the TDCJ's State Cousnel for Offenders. This Courts denial to do
so would violate the Due Proces Clause ,of the United .States Con
stitution, Amend., XIV, and Texas Const, art 1, § 19.
Here, the words of Justice Robert H Jackson are most appro
priate:
"Let it not be overlooked, that due process of law is not
for-the sole benefit of the accused. It is the best assur
ance for the Government itself against those blunders
which leave lasting stains on a system of iustice."
Shaughnessy v United States, 345 US 206 (1953).
This Court has the ability to suspend the rules and to allow
for the abatement of this PDR and the Appeal back to the trial
court, so that appellant might exercise his right to develop and
raise issues outside the record of great significance. See Tex R
App P 2 & 21. In the interest of iustice, and of iudicial economy,
appellant, David Schlittler, respectfully requests that this Court
abate this cause back to the trial court in order to allow him "to
file a Motion for...New Trial to adequately introduce a developed
record of such issues which should be resolved at that level, or,
preserved for a proper appellate review.
This motion is not meant to delay any proceedings, but rather,
to see that iustice is done.
Respectfully submitted,
David Schlittler
Appellant
TDCJ # 1498090
1098 S Hwy 2037
Ft Stockton, TX 79735
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Motion to Abate the
Petition for Discretionary Review to allow Appellant an Out of
Time Motion for New Trial has been served upon the following partys
Melinda Fletcher
Special Prosecution Unit
P 0 Box 1744
Amarillo, TX 79105
Lisa C McMinn
State Prosecuting Attorney
P 0 Box 13046
Austin, TX 78711
Kenneth Nash
State Counsel for Offenders
P 0 Box 4005
Huntsville, TX 77342
Sent via US Mail on this, the 29 day of June, 2015.
David Schlittler
Schlittler, David
Combined Opinion