PD-1224-15 RECEIVED IN
COURT OF CRIMINAL APPEAL
CAUSE MO. 67,789-E OCT 06 2915
THE STATE DF TEXAS §
ronm
V. § COUNTY, TEXAS
MICHAEL BAY KENNEDY
§ 108th JUDICIAL DISTRICT
Defendant.
(HURT OF APPEALS SEVENTH DISHtlCTof TEXAS.
Ararillo,Texas.
REQUEST FOR APPOINTMENT OF COUNSEL'
PURSUANT TO ARTICLE 38.35, CODE OF CRIMINAL PROCEDURE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant MKBAEL EAY KENNEDY , T.D.C.D. NO.
1968578 , and requests appointment of counsel to assist Defendant in
obtaining an Order for Forensic Analysis from the Court, pursuant to Article
3B.35(b)(1)(2)(3), CODE OF CRIMINAL PROCEDURE .Sec . (a) (4)"forensic analysis,
means a ballistic or other expert examination or test preformad an physiral(EyiDENCE)
Defendant wishes to submit a Motion pursuant to Chapter 38 requesting
Forensic Analysis and Testing, and Texas Government Code §411.0205 and Defendant
is indigent. An Affidavit of Indigency is attached and incorporated hereto as
EXHIBIT "1". ^im, FILED IN
riLLU m
COURT OF CRIMINAL APPEALS
OCT OC 2G^5 Respectfully submitted,
Abel Acosta, Clerk
Signature of Defendant Pro Se /
T.D.C.ZIJ 1968578
Stevenson Unit
1525 FM 766
Cuero, Texas 77954
(361) 275-2075
m
Request for Appointment of Counsel
Pro Se, Self-Representing Litigant
CAUSE NO. ^7. 7,1%-£
THE STATE OF TEXAS § IN THE DISTRICT OF
V. § POTTER COUNTY, TEXAS
MICHAEL RAY KENNEDY § 108th JUDICIAL' DISTRICT
ORDER REGARDING APPOINTMENT OF COUNSEL1
On this -•-• day of — r '--•'^•K , 2015, Defendant's Request for Appoint
ment of Counsel, together with Defendant's Declaration of Inability to Pay Cost,
was presented and heard by the Court.
IT IS ORDERED, ADJUDGED, AND DECREED that the request should be:
GRANTED DENIED.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED by the Court that
, is appointed to represent Defendant on this
Motion For Forensic Analysis of Physical Evidence in the above styled and
numbered cause .
SIGNED AND ENTERED on this the day of
in the year 2015.
JUDGE PRESIDING
Order Regarding Appointment of Counsel
Pro Se, Self-Representing Litigant ,.'/^\
EXHIBIT (1)
AFFIDAVIT OF INDIGENCY
Texas Rules of Civil Procedure,
Title 6, Chapter 132, Texas Civil
Practice and Remedies Code.
NOW RESPECTFULLY comes Michael Ray Kennedy ' , t.D.C. J.# 1968578
presently at the Clarence N. Stevenson Unit in Cuero (Deklitt County) Texas,
77954-6300. I declare that I am unable to pay the Court costs in this request
to the Court, and requests Leave of the Court to proceed - in forma pauperis -
in this accompanying request and action while showing the Court the following:
(1) I am presently incarcerated in the Texas Department of Criminal
Justice - Correctional Institution Division where I. am not
permitted to handle money; and
(2) I have no source of income or spousal income; and
(3) I currently have $ 30.00 dollars credited to me in
the T.D.C.J. Inmate Trust Fund; and
(4) During my incarceration in the Texas Department of Criminal
Justice - Correctional Institution Division, I have approx
imately $ 25.00 dollars per month as gifts from relatives
and friends; and
(5) I neither own nor have an interest in any realty, stocks, bonds
or bank accounts, and, I receive no interest or dividend income
from any source; and
(6) I have 0 dependants; and
(7) I have total debts of approximately $ dollars; and
(B) I owe $ 0 in restitution; and
(9) My monthly expenses in hygiene and medical expenses are
approximately $ 0 dollars.
Ij Michael Ray kennady t T. D. C. J. # 1968578 r t
being presently incarcerated at the Stevenson Unit, located at 1525 FM 766,
Cuero, Texas, 77954-6300, (361) 275-2075, declare and verify under penalty of
perjury that the foregoing statements in this Affidavit of Indigence are true
and correct.
EXECUTED on this %£ day of Septaiber 2015.
Signature of Declararrc, Pro Se /
NOTE: Amendments to the Texas Civil Practice & Remedies Code §132.001, now allows any party to use
an Unsworn Declaration instead of an Affidavit or Verification (2012).
Affidavit of Indigence
Pro Se, Self-Reprenting Litigant
Certified #.
CAUSE NUMBER 67,798-E
THE STATE OF TEXAS In The 108th District Court
§ In and for; Potter County,Tx
Vs § And
Court of Appeals Seventh Dis
Michael Ray Kennedy § of Texas. Potter County,Tx
§
MOTION PURSUANT TO CHAPTER 38
REQUESTING FORENSIC ANALYSIS & TESTING
To The Honorable Judge of Said Court;
Comes Now Michael Ray Kennedy, Defendant Pro-Se and Respectfully
Moves this Honorable Court for a ruling on his Motion for Forensic Analysis And
Testing of Ballistic Evidence in the Above Styled and Numbered Cause,In Support
The Defendant will Show This Court as Follows:
I
Defendant is Submitting this Motion Pursuant to Article 38.35 Code of
Criminal Procedure: Rule 401 [Relevant Evidence]. Texas Rules of Evidence and
Texas Government Code § 411.0205 In the Interest of Justice and Fairness and
Not to Vex The Court.
II
That Such Admissible Evidence was Not Previously Tested ; Reporter Record
Vol.2 Page 158. See; RR. V.2 PG 158. Officer Michael wheeler Questioned By The
Attorney: Martinez in 4-5-6
Q Officer, Did You send that slug to Any Kind of LAB for Analysis ?
A NO, I Didn't.
RR V.2 PG 171 LN 1-2
Q And of Course You're Not An EXPERT in BALLISTICS, Are You ?
A NO, Sir
Attached are RR. V.2 PG 158-171. The Officer Testified to a Statement of the
Size of the Caliber of a Weapon and was Questioned of the Exhibits Number 6 of
Glass, This Slugg Allegedly was the Cause of the Window being Shattered. Exhibit
18 Is the bullet round collected from the seat,if this slugg shattered the window,
it would have glass fragments in the bullet. This Officer is NOT OULIFIED to Test
ify on Ballistics, by his Own Word's. RR. V.2 PG 171
Q You'r Not a Expert in Ballistics are you ?
A NO, SIR
Tex.R.Evid.702 Kelly V. State 824. S.W.2d 568(Tex.Crim.App.1992). This is The
Threshold Regaurding the Admission of Expert Testimony,Whether that testimony will
Help the Trier of fact Understand the Evidence or Determine a fact in Issue. And
If the Failure to Conduct previous testing is excused,means Individual samples of
Ballistic Material Having Discrete and Independent Probative Value for Purposes of
the particular issues arising from trial would not be allowed to clear the confusion
of the issue.
IE; An Expert is required or Texas Rule of Evidence 104(a)&(c) & Rule 702, Will
be forever Lost. None of the Criteria was Proven. There was No Gate Keeper
Hearing on Qualifications. Testimony was of a 380 Bullet and what if the Bullet
was a 22. Slugg or a 25 Bullet or a 44 or a 45 Bullet.
Further testing is so Advanced Now adays, A Expert Can [GIVE AN EXZACT TIME FRAME
THIS BULLET WAS FIRED],(Corrosion) Another Theory If The Bullet was Fired and
there was Moisture or rain on the window, The Bullet would have samples on the
Slugg. Let's Just say; The Incident Occured on a Hot and Sunny Day and a Expert
Shows this Slugg was Not Fired when the Officer or the State has CLAIMED, Then
it is a Miscarrige of Justice. Michael Ray Kennedy [Did Not Fire,No Weapon].
The Probative Force of Evidence Sought by Testing is Not so Weak that it Would
Raise only Surmise or Suspicion of Existence of Fact sought to be Established.
Defendant has made a reasonable Inquiry and Believes This Motion has Proper Basis
in fact, In law and is Not made for Improper Purpose.
Wherefore, All Considered, Defendant Prays that the Honorable
Court Grant Defendants Motion and Enters an Order for testing and
All Things which Defendant is Entitled.
RESPECTFULLY SUBMITTED ON THIS bW Day
of St$Twr[}dL ,2015.
Signature of Defendant,Pro^Se
MOTION FOR FORENSIC TESTING
Pro-Se Self Litigant Representing.
page 2
e1;5Sw
1 MR. HORN: We'll pass the witness.
2 CROSS-EXAMINATION
3 BY MR. MARTINEZ:
4. . Q. Officer.did you send that slug to any kind of.
?5 1ab for analysi s? *
6 A. No, I didn't.,
7 Q. So what's the significance of the slug in the
8 seat; when did that happen?'
9 A. It's -- Ms. Monnet told me that it -- her
10 window was damaged from the subject. And based on the
11 text message that she had received, I figured -- I
12 determined it to be a part of the investigation, a part
13 of the case.
14 Q. Well, did you check out the phone number?
15 A. No, sir, I didn't.
16 Q. Did you get a warrant to find out whose phone
17 number that was?
18 A. No, I didn't.
19 Q. Did you know about Ms. Monnet's prior criminal
20 hi story?
21 A. No.
22 Q. Did you know about her criminal history
23 afterwards?
24 A. No.
25 MR. MARTINEZ: Would you put State's
171
1 to be glass outside. And, of course, you're not an
2 expert in ballistics, are you?
3 A. No, sir.
4 Q. Okay. But just from your training and
5 experience in investigation, is the glass being inside
6 the vehicle consistent with someone shooting through
7 that window into the car?
8 A. The glass inside the vehicle is a good
9 indication that the damage was done from the outside of
10 the car, inward.
11 Q. Okay. And just from your assessment of this
12 scene, is it your conclusion that the bullet came from
13 this window and not the front of the car?
14 A. Yes, it came -- my belief, it came from the
_15 passenger's side front window.
16 Q. Okay.
17 MR. HORN: We'll pass the witness.
18 THE COURT: All right. Anything further,
19 Counsel ?
20 You may -- oh.
21 MR. MARTINEZ: Excuse me.
22
23 RECROSS-EXAMINATION
24 BY MR. MARTINEZ
25 Q. You didn't -- you di dn 't ^:-;-v. I .mean , as far as