Case Information
*1 IN THE COUPIT OF CRIMINAL APPEALS OF TEXAS
Poss Allen Hartwell (publisher) V. The State of Texas
From Appeal No. 13-14-00037-CR From Cause No. D-1-DC-13-904031
RECEIVED IN COURT OF CRIMINAL APPEALS
DEC 302015
MOTION FOR REMEABING OF PETITION FOR DISCRETIONARY REVIEW
To the Honorable Judges OF the Court of Appeals:
Comes now Poss Allen Hartwell, Pettitioner, herein and respectfully, files this Motion for Rehearing of Petition for Discretionary Review per PubSCRP (NF) of the Rules of Applicate Procedure. And in support of this COURTED PROCEDURE APPEALS, Shouts the Court the following:
The Pettitioner was convicted in the 390th District Court of TrivADOPA REMEA, which of the offense of Aggravated Probbery in cause number D-1-DC-13-904031 (styled state of Texas v. Poss Allen Hartwell). The Pettitioner appealed to the Thirteenth District Court of Appeals, the conviction was Affirmed and the sentence REVEPSED ON July 2, 2015. Pettitioner, in a timely manner, (per mail box rule on July 12, 2015), filed stamped July 20, 2015), filed as "pro se Motion for Rehearing, in the Thirdteenth District Court of Appeals, but was DENIED on Ground that Pettitioner is not entitled to hybrid representation in that Court. Pettitioner then filed a pro se Motion to Reinslate Motion for Rehearing. The Motion was then GPANTED and Pettitioners Motion for Rehearing was DENIED on the merits, September 5, 2015. Finally, the Pettitioner filed his pro se Petition for Discretionary Review on September 16, 2015 and this, the Court of Criminal Appeals ReFused on December 9, 2015.
II
Pettitioner respectfully makes this court to rehear the Petition for Discretionary Review issues presented. It is deasion, pertaining to Issue Two in the Appellants Brief, the Thirteenth District Court of Appeals improperly applied Corza v. State, 219 S.W. 3d, 347-48 (Tex. Crim. App. 20/7) and Mencfield v. State, 363 S.W. 3d, 593
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(Tex.Crim.App.2012) in order to DEFFR the chim because "The reasons for trial counsels conduct do not appear in the record and it is possible that her conduct could have been grounded in legitimate trial strategy." (See GPaunld I in R.D.R.)
When re-evaluating the specifics of the case at hand, Petitioner respectfully requests this court to consider the following:
- Defense counsels sound strategy, before and after the conduct, is abundantly cheaper the available record. Any variance from that strategy was "so outrageous that no comperant attorney would have engaged in it." SANES v. State, No. 201-13-00920-CR (Ct. of App.123 Dist.2015) Tek. App. Lexis 3139
- "Under the facts of the case", not challenging the prospective favor or at least asking rehabilitative questions "Would not have been acceptable trial strategy." VASQUEZ V. State, 230 Siv. 2d 948 (Tex.Cr.App.1992) and "to hold canse] ineffective is not speculation." Vasquez, 930 Siv. 2 d at 950-1.
- Any attempt to "justify Dier I performance" in further proceedings whenever the "justification is not evident on the record and presented for the first time (ie, if deferred for collateral review)]. . . have little value. Thus respecting the suprome
Cavts caution in Strickland that "the purpose of the effective assistance quarter of the Sixth Amendment is not to improve the quality of legal representation." Virgil V. Drethe, 446 F 3d at 611 (5th Cir. 2006), Stickland V Washington, 466 US.6626699 (9991) Also, In the spirit of conserving Iudicial resources, Petitioner is attempting to show this court that under the circumstances presented, the direct appeal avenue was the correct one to persve his meritorious claim of ineffective assistance of canse1. This principle was founded in Massaro V. U.S., 155 L. Ed 2d 714 et 723 (2005), which states "We do not hold that ineffective assistance of canse1 claims must be reserved for collateral review. There may be cases in which trial counsels ineffectiveness is so apparent from the record that appellate counsel will consider it advisable to raise on direct appeal."
Petitioner argues that when considering the present circumstances, letting the based and unfair ventremon go unchallenged as unquestioned for ANY reason "clearly indicates no reasonable attorney could have made such trial decisions." Cambell V. State, 123 Siv. 2d 789, 734 (Tex. App. 14 th Dist. 1999)
By defering this particular case for collateral review, the appellate courts are causing "unnecessary" judicial redundancy and burden on the trial courts of holding additional hearings in writ applications when no additional evidence is necessary to the ultimate disposition of the case" Thompson V. State, 9 Sv. 2d 902 at 917 (Meyers, S. Assserting)
III
Finally, when re-evaluating the specifics of the Petitions Grand II for review, Petitioner coninds this court that any concession to the Thirteenth Carts equivalence to the District Carts blatant violation of the Texas Rules of Evidence Rule 101
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not only jeopardizes the task of ivorys to come but would also obfuscate the idea of future ivory trials altogether.
NOT FOR DELAY CERTIFICATION
This Motion is grounded in the sound reasoning that a structural error has in fact occurred which then and therein did cause all unfair trial. Judicial resures would only be banged down by further petitions, visits and motions if this court does not P2view and form an opinion on the case at hand. I Poss Allen Hartwell certifies that this Motion for Rehearing of Petition for Discretionary Review under Prole 19.2(c) of the Rules of Appllate Procedure is made in good faith and not for delay.
PHAYER
Wherefore, premises considered, Petitioner herein prays that the Car't would grant the Petitioners request to Pebear, Review and GPANT his Petition for Discretionary Review.
AFFIDAVIT IN SUPPORT THEREOF
I Poss Allen Hartwell, TDCS 11D Number 1893452, Petitioner Pro Se, in the above Motion, am currently incorporated at the William P. Clements Unit of the Texas Department of Criminal Justice/Institutional Division, in Potter Cantly, Texas. And do herein, freely and voluntarily, declare under penalty of perjury and the laws of the U.S. that the fore gofip statements are true and correct, and that I have personal Krouflledge thereof.
Executed on this 20th day of December, 2015
Prespectfully Hos Hluchistess Poss Hartwell TDCS# 1893452 Bill clements Unit 9601 Spur 591 Amorillo, Texas 79107-9606
*4 IN THE COUPIT OF CRIMINAL APPEALS OF TEXAS
Ross Allen Hartwell (Petitioner Pro Se) V. The State of Texas
PID* 0955-15
MEMBRANOUM IN SUPPORT OF MOTION FOR PLEHEARING FOR PETITION FOR DISCRETION/AAV REVIEW
Introduction
I Ross Allen Hartwell, Petitioner in prose has filed a Petition for Discretionary Review in response to the Thirteenth District Court. Appeals adverse opinion concerning certain errors in his Appellants Brief. This memorandum is submitted in support of the Motion for Reframing of the Petition for Discretionary Review.
Statement of facts
The two (2) Grands listed in the Petitioners Petition for Discretionary Review were argued through the Appellants (Petitioners) and Appellees (Stats). Briefs in the Thirteenth District Court of Appeals. The Thirteenth Court أقرraMED the conviction and REVERSED the Sentence. The Petitioner argued his trial counsel was ineffective for failure to strike or challenge a biased and unfair venire man. Petitioner did show guiding case law to support his claim for this particular instance. Petitioner did show where the direct appeal avenue is the correct one for this case. The state and the Thirteenth District Court disagreed by reasoning trial counsels decision. said have been strategic motive. Housewife the record reflects the strategy and the State nor the Thirteenth Court takes the actual strategy into consideration but only pulls imaginative strategies out of the air in order to give Trial Counsel of free pass or erroneously states one does not exist.
Also, Petitioner claims that the Thirteenth Carts decision to allow, over petitiones courtroom objection, the 390th District Court's permitting of witness' testimony of numbers culpable mental state is an unambiguous approval of a violated of Federal and Texas Rules of Evidence Rule 161.
*5 MEMOAN DUM CONT.
Araument
To not entertain the Petition for Discretionary review, the Cautery Criminal Appeals only pushes the Petitioner and his allegations toward the hobbess process and back into the original court which advocated the unfair trial by not questioning the, improper by law, venireman in the first place. The Thirteenth Cautery Appeals opinion, on the issue, made light of the veniremans statement by only alluding to a very small portion of the voir dire transcript. The court then deferred or excluded counsels action of not challenging or striking the impartial venireman by stating that it may have been strategy. Petitioner argues that because of his trial cabisels strategy for eliminating a specific type of potential error was made abundantly clear during the voir dire presentation, the Thirteenth Cauts reasoning is unreasonable and unfounded. The Cauts opinion excesses trial causels mistake or ideptness in not challenging, striking or bench questioning the venireman who defied the strategy and was, by law, unable to serve on a jury.
Petitioner feels that it would interest this court to bear with him by reading the portion of the voir dire presentation along with the reciprocally charged communications between his trial counsel and the venireman in question which is concisely presented in the Petition for Discretionary Review. (See GROUND I for P.O.A.)
Also, if this Court allouts for GROUND I of the P.O.A. to not be ruled out, the fundamental ideal of the trial by jury will change significantly, thus transferring decisions of law and evidence back to the witness' and accused. In this case, a Texas Rules of Evidence Rule 101 violation clearly occurred and was properly objected to. Never is the Capable Mental State of a person allowed to be determined by anyone except the trier of fact. Yet in the 390th District Court, the complaint and the witness was allowed to testify to and determine the accused' capable mental state. The Thirteenth District Cautery Appeals then permitted this violation to stand and if this Court of Criminal Appeals does not properly attend to the complaint, then justice will be taken out of the hands of jurys to come.
Conclusion
The sphere of influence which insulates the type of behavior or omission in this instance will only be further promoted without the Court of Criminal Appeals taking the reins of yussation and acting as a fair arbitrator. For the foregoing reasons, Petitioner respectfully requests this court to reconsider the Petition for Discretionary Review.
Sincerely P. 1993452
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