Case Information
*1 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Dear Abel Acosta, March 6, 2015 (CCA), Clerk, RE: EX PARTE ARTHUR DAVID LOWS, WR-25,679-22; CAUSE No.659154-B
Please find enclos~d Applicant's Original Application for Writ of Habeas Corpus, in your official records-wR-25,679-22. referred to and supplying a ~opy here-with. Being Applicant is unable to make ciDpies. Being incarcerated (TDCJ-ID), Texas Department of Criminal Justice-Institutional Division, at the Hughes Unit. NO offender{s), are perm~t~d to make copies. nor is there any copy unit supplied for Offender(s) use. Please filed the same and pre- sent to the Court th~ !Motion For Reconsideration', in reference to the above Writ Numb~r and Cause Number. Being this Motion and Re~ cords to the attention of the H~norable Justic~ of the Court's attention. And Please, up-date me on any actions taken.
I, truly appreci~te your consideration ... THANK YOU ... May GOD Bless Yuo, Yuor Family and Friends.
Sincerely Wzi!zw1 d&J.Jt ARTHUR DAVID LOWE#669750 HUGHES UNIT.
RT. 2. BOX 4400. GATESVILLE, TEXAS 76597 REC!E~VED IN COURT OF CRIMINAL APPEALS ~AR 09
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
WR-25,679-22; CAUSE No.659154-B EX PARTE ARTHUR DAVID LOWE § IN.THE 339TH DISTRICT COURT
Applicant,
v. § OF
THE STATE: OF TEXAS § HARRIS COUNTY, TEXAS
Representative(s),
ASSISTANT. DISTRICT ATTORNEY,
[Sharon Y. Chu], Respondant. §
MOTION FOR RECONSIDERATION TO TBE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:~
NOW COMES, Arthur D·avid Lowe, [J:leteinafter referred to as Appli- cant}, and respectfully, submits this •Motion For Reconsideration'.
And will show the following:
[APPLICANT IS ILLEGALLY RESTRAINE~] Applicant was convicted by a jury, On October 25, 1993, and Sen~' ·tenced October 28, 1993. To [LIFE]--In the Texas Department of Crim- inal Justice-Institutional Diyision (TDCJ-ID), Formerly the Texas De- partment Of Corrections.
On January 19, 1995, the First Court of Appeals affirmed Applic- ant's appeal. Lowe v. State, 01-93-0~985-CR, 1995 WL 19052 (Tex. App~- Houston [lst. Dist.] Jan. 19* 1995»(mem. Op., not designated for pub- lication).
.II Applicant filed an initial Application for Writ of Habeas Corpus challenging the convictton. Cause No.659154-A.the trial Court On the 'State's Original Answer and Findings of Facts and Conclusions of Law and Orders.'-Adopted the State's Assistant District Attorney's Proposed Findings and Order~ by signing the [same]. That effective~. iy [DISPOSED] -ALL Appl'icant 's cl~aims [WITHOUT CONSIDERATION], and ALL the 'Motions' filed with the initial Application for Writ of Ha- beas Corpus; presented with supported certified records and affida~ vits.
JL[][ Pursuant to Texas Code Criminal Procedure Ann. article 11.07 (Ver- non Supp. 1993 & 201-3). The Harris County, District Clerk, as Ordered by and through the State's Assistant District Attorney [Sharon Y. Chu] in accordence with Section 3(c), forwarded limited records, filed in the Habeas Corpus proceeding.
IV The Texas Suprem~ Court of Criminal Appeals, On ['December 18, 2013] [DENIED WITHOUT WRITTEN ORDER] Applicant's initial Ap~lication for Writ of H~beas Corpus.
v
After the final disposition of Applicant's First Application for Writ of Habeas Corpus [December 18, 2013].
Applicant came in knowledge that the trial Court was not afforded *4 to consider Applicant's ~s~parate Memorandum' with attached certifi- ed records and affidavits, and Mot~ohs', in support of his claims.
Theref6re,. Applicant refiled the 'Motion Reformation Aggravated kidnapping Judgment.' T~~ records reflect that, the trial Court rece~ ived, the 'Motion' On April 14, 2014, and On [April 21, 2014], the trial Court [GRANTED], Applicant's 'Motion', and made Orders ·'NUNC PRO TUNC'~\~earing and further Orders the Correction of Applicant's 'JUDGMENT AND SENTENCE'. Conducting such hearing ALL in Applicant's [ABSENCE]. Actions taken in Violation of Statutory provision. See Tex.Code Crim. Proc. Ann. art. 42.03, §l(a)(Vernon Supp. 20l~)[Sen- tence sh~ll be pronounced in the Defendant's Presence].
VI The trial Court· actionsiri:n [GRANTING], Applicant's 'Motion' was to conform with the'Jury's Actual Verdict'to the 'Special Issue' pur- suant to T~X.PENAL CODE ANN. §20~04(b)(Vernon 1993); See also Williams V. State, 851 S.W. 2d 282 (Tex. Crim. App. 1993)(AS A MATTERQF LAW].
VII In the instant case, the records unequivocally reflect the trial Court's Order Correction of Applicant's 'JUDGMENT AND SENTENCE' from ) the egregious entry in the Original 'Judgment and Sentence' of [Pir~t
Degree Aggravated kidnapp;i·ng Judgment] the trial Court made the law- ful Correction to Applicant's 'JUDGMENT AD SENTENCE'--Reduced the Off- ense to [SECOND DEGREE AGGRAVATED KIDNAPPING]--The records NOW being Corrected by the trial Court reflect 'SECGND DEGREE AGGRAVATED KIDNAPP:::--· *5 lNG RELEASE VICTIM IN .A SAFE PLACE]: See TEX.PENAL CODE ANN. §20.04{b) (Vernon 1993); See also TEX.PENAL CODE ANN. §12.33 [Second Degree Pun-- ishment]. Compared to TEX.PENAL CODE ANN. §12.32 [First Degree Punish- ment].
The trial Court Ordered the Correction of Applicant 'JUDGMENT AND SENTENCE" the Orders Reduced the Offense to"Second Degree Aggravated Kidnapping'. However, Applicant remain under Sentence [LIFE].
VIII The trial'Court ERRED in signing--Adopted the State's Original Ans- ' wer and Proposed Finding of F~cts and Concl~sions of. Law and Order. T~
[DISMISS]--Applicant's Applicati6n for Writ of Habeas Corpus as none- compliance with Article 11.07, §4.
Whereas, the records.reflect and ~pplicant Application for Writ of Habeas Corpus, aTht~ough being a Second Application for Writ of Habeas Corpus, the trial Court [GRANTED] Applicant 'Motion• On [April 21, 2014] Corrected Applicant's 'JUDGMENT AND SENTENCE' Reduced the Offense from lst Degree Aggravated Kidnapping [TO] 2nd Degree Aggravated Kidnapping. The [GRANTING] of Applicant's 'Motion• and Correction of records in Reduced Applicant's 'JUDGMENT AND SENTENCE" occurred [AFTER]--the final [DISPOSITION] of the initial Application On [December 18, 2013]. There- fore, the ~urrent claim was not and could not have been presented in the initial Application for Writ of Habeas Corpus, because the fact- ual and legal basis for the claim was unavailable on the date dispos- ition of Applicant First Application [DENID]--December 18, 2013. The current claim became an issue for legal basis On April 21, 2014. In *6 addressing wh~ther the instant Application is barred as a 'Subse quent Application' Under Section 4, Or whether if it falls within an exception, 6f:.Section, 4(a)(l), provides;
(a) 'If a subsequent application for writ of habeas corpus, if fil- ed after final disposition of an initial application, challeng ~·
ing the same conviction; a court may not consider the merits of or grant relief based on the subsequent application; 'unless thE); apfi,.iib~tibri'' c6i.tiiifi's·~ sti£tit'i~rit ;_facts establishing that; (1) 'the current claim and issue have not and could not have
been presented previously in an original application or a pre viously considered application under this Article because the "factual or legal basis for the:.cliiim was unavailable on, the
date the applicant filed the previous application[.] (c)'for the purpose of subsection (a)(l), a factual basis of a Claim is unavailable on or about a date described by subsection (a)(l) the f~ttual basis was rtot asertainable through the exer~' cise of re~sonable diligence on or before the date.
TEX.CODE CRIM. PROC. ANN. art. 11.07, §4(a)(l), Thu$ the court's are barred from considering the merits of an applicant's application, 'Un less the facts:givill'llg rise to the claim, made in the instant Applica tion could not hawe been presented in the initial Application because they were "not asertainable through the exercise of reasonable dili- gence on or before the date of the initial Application.•
In the instant AppJication for Writ of Habeas Corpus, the records *7 unequivocally reflect, and' as Applicant has demoristrated above and the referred to Application for Writ of Habeas Corpus.shows that the current claim was not and could not have been presented in the initi al Application for Writ of H~beas Corpus. {DENIED][DECEMBER 18, 2013]~ The Claims being raised in the instant Application for Writ of Habeas Corpus--WR-25,679-22, Cause No.659154-B. was not available for any factual or legal basis to be raised for consideration until [APRIL 21, 2014].
..
make Orders to comply with Statutory provision. See Tex.Code Crim.
Proc. Ann. art. 42.03, §l(a)(Vernon 2014)[the Sentence shall be Pro nouced in the Defendant's Presence].
***IJ;iJ,this case [The Sentence has NOT been Pronouced i1111 ([Applicant's]) Presence].
Applicant is entitle to Due Process Rights and Due Course of Law, as well as a Constitutional Right to have the Sentence in which He is to serve Pronuonced in His Presence.
ORAL PRONOUNCEMENT OF SENTENCE The trial Court's Ordered 'NUNC PRO TUNC' 'CORRECTION' of Applicant's 'JUDGMENT AND SENTENCE'. In Applicant's [ABSENCE]. Applicant have a Due Process Right to have the Sentence Orally Pronounced in His Presence. See Marshall v. State, 860 s.w. 2d 142 (Tex. App.-Dallas 1993, no pet); Ex parte Madding, 70 s.w. 3d 131 (Tex. Cri~. App. 2002)~Taylor V. State, 131 s.w. 3d 500 (Tex. Crim. App. 2004)(citing Tex.Code Crim. Proc. Ann. art. 42.03, §I(a)(Vernoll1l 2006).
The trial Court's Orders 'NUNC PRO TUNC' hearing reflects that the trial Court presiding Judge Corrected Applicant's 'JUDGMENT AND SEN TENCE'. Pursuant to TEX.P.EJNIAL CODE ANNr.;_§20 .• 04.(bi)(Vernon Supp. 1993 § 2014). See also Hughes V. State, 493 S.w.· 2d 166, 170 (Tex. Crim. A:pp. 1973)("A judgment may be reformed so as to show the offense of which the accused was found guilty by the court or Jury) s:ee 9-lso Ex Parte Philip, 176 S.W._.3d 818 (Tex.- Crim. App. 2005)["The expectation of having the oral prouncement match the written judgment applies to sentencing issues, as the term of confinement assessed and whether *9 multiple sentence would be s~rved concurrently"). It is ERROR for the trial Court to enter Orders 'NUNC PRO TNC' hearing Correction of Applicant's 'JUDGMENT AND SENTENCE' without affording Applicant an opporunity to be at the hearing, sentencing, represented by Counsel in avvord to Applicant's Due Process of Law. See Shaw V. State, 539 s.w. 2d 887 (Tex. Cr. App. 1976).
In Mitchell v. State, 942 s.w. 2d 170 (Tex. App.-Amerillo, 1997) ("the appellant court, held that, when valid judgment of conviction for first degree felony offense was not nunc pro tunc judgment, but merely a correction made during th~ term time, was ho requirement for netic~, hearing and proof in defendant's presence"). Whereas, In Vallez V. S'tate, 21 s.w. 3d 778 (Tex. App-San Antonio 2000) (''entry of nunc pro tunc judgment indicated that defendant's three controll ed substance prosecuting has not been conso~idated for plea apd seh tencing, was ERROR, where .defendant was not given opportunty to be present ~t the hea~ing and be hea~d and represented by counsel, to accord him due process")~
ON FEDERAL REVIEW A defendnat is constitutional entitled .to due process, at a bare minimu~, due process requires that a defendant be give notice if the punishment to which he has been sentenced. See e.g.,Landford v. Idaho, 500 u.s. 110, 111 s.ct. 1723 (199l)("[A] notice of issue to be resol ved by the adverary process is a fundamental charactisic of fair pro cedure:);Baldwin V. Hale, 68 u.s. 68, 233. I. well (1863)([C]ommon justice requires that no man be condemned in his person or property *10 withb~i notice and an opproturiity to make his defense'') ;In re oliver,
333 u.s. 257, 68 s.ct. 499 (1945)(due process requires that a per son be given reasonable notice of a charge aganist him1 and an op portunity to examine the witnesses ~gainst him to offer testimony/ to be represented by counsel);e.g.,doweney v. United States, 67 App. 192, 91 F.3d 233, 239 (1937)(~changes in the records of judgment made without notice to defendant or oppo~tun~y to be heard would deprive person of liberty without due process of law; [P]roceeding in absence of appellant to correct the record would have been improper/ sence the ulimate question involved/ extent of a valid imprisonment which he might be subjected/ was one of vital interest. to him'');United States v.~Spiers, 82 F.3d 1274, 1282 (3d Cir. 1996)(bec~use had no tice and was prese~t in court-room rights were not effected by the failu~e to give effect to a complete defense to prosecution. See FED. R. CRIM. P. 43/ [Defendant shall be Present during the Pronouncement of Sentence]; See also United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003); FED.R. CRIM. P. 43{a) (3) ( ~reguiring the defendant ... be present at sentencing~)~ th[is] Constitutional Right ... is rooted to a large extent in the Confrontation Clause of the Sixth Amendmant1 but ... is [also] protected by the Due Process clause in some situa tions. Where the defendant is not. actually confronting witnesses or evidence against him''); See United States v. Gagnon, 470 u.s. 522, 526, 105 s.ct. 1482 (1985)(internal citation omitted).
There~ore1 if the written judgment conflicts with the sentence pro riounced at sentencing/ the pronouncement cbntrols. See United States *11 v. Martinez, 254 F.3d 941, 942 (5th Cir. 2000). If, :however, the dif ference between the two is only an determine the sentence. See United States v. Warden, 291 F~3d 363, 365 (5th Cir.), cert. denied. 537 u.
s. 935, 123 s.ct. 35 {2000).
In this instant case, reaching this conclusion, on the States level. TEX.COJI)E CRIM. PROC. ANN. art. 42.03, §l(a)(Vernon 2014);Abon v. State, 997 s.w. 2d 281, 282 (Tex. App.-Dall.as 1998)(A Defendant has a Constitutional Right to be Pres~nt at Sentence):Aguilar V.
State, 202 s.w. 3d 840, 843 {Tex. App.-Waco [lOth Dist], 2006)(Art- icl~ 42.03, Sectibn l(a), of the Texas0Cod~~Crimina~-Procedure, pro vides~ that "Sentenc~ sha11 be pronounced in the D~fendant's Presence." TEX.CODE CRIM. PROC. ANN. art. 42.03, §l(a)(Vernon supp. 2005), [2] When th~ defendant is convicted of more than one offense in th~ same proceeding, the court must pronounce whether the sentence will run concurrently or consecutively. See id. art. 42.08 (Vernon Supp. 2005).
See also Blakely V. Washington, 542 U.S. 296, 124 S.Ct. 2531 {2005). Therefore, based on the records of the 'NUNC' PRO-'TUNC!, hearing pro ceeding, [A]LL in Applicant's [ABSENCE]. Corrected the 'JUDGMENT AND SENTENCE'. Is ERROR on a magnitude .that Violates Applicant's Due Pro cess of Law, to hold such a· hearing wit h'out Appl it ant being present, to afford the opportunity to be represented by Counsel, in accord to Applicant's Due caurse: of Law ... [this actual] 'Nunc Pro Tunc •, hear ing in open Court where the presiding Judge the Honorable [Maria T.
(Terri) Jackson of the 339th District Court can only be found on the r Court's actual minutes, because the Deputy Clerk [L. Guevara], DID
NOT filed the ~cfual Ord~ra,1by the trial Court. However, the Cor- rection of Applicant's 'JUDGMENT AND SENTENCE' can also be found in the official records o£ the Court of Criminal Appeals, Clerk'. The {CCA), Order On July 28, 2014 [Supplemental to the Court Clerk's of- fic.ial records]. See WR-25,679-15.
Thus, the Court should follow the well-settled law set-out in Vasquez, because it violates a defendant's Constitutional Rights to Due Process and due Caurse of Law, to Orally Pronuonce Sentence· to Him and then later without giving Applicant an opportunity to be hear- ed, enter a written judgment imposing a significant harsher Sentence. See Ex parte Vasquez, 712 s.w. 2d 754 (Tex. Crim. App. 1975).
CONCLUSION OF PRAYER WHEREFORE, PREMISES, CONSIDERED, Applicant prays this Honorable Ccutt of Criminal Appeals, ~ustice, ,Reconsider each and every point raised herein and take the appropriate legal actibns, as the la~ and justice requires, in protection of Applicant's Due Process Rights, and Due Course of Law, ThuS~~this ERROR being on Constitutional Rights, that the court should NOT just turn a blind eye. The Sentence should be Pronounce, in Applicant's Presence.
Respectfully Submitted f21tAwJ dome ARTHUR DAVID LOWE#669750 HUGHES UNIT.
RT. 2. BOX 4400 GATESVILLE, TEXAS 76597 CERTIFICATE OF SERVICE
I, Arthur David Lowe, being thec·Applicant herein, and hereby certify *13 that the foregoing•Motion for reconsideration' and 'Exhibits append- ed . with!1this 'Motion' herein, has been delivered by U.S. Postal service. To the Court oL Criminal Appeals, and I SWARE UNDER PENITLY OF PERJURY, that ALL the contents and statements made herein and Ex- hibits are T~DE and CORRECT. and that this Honorable Court can verify the same. I filed and submits this to this Court, for Reconsideration.
On this ___,b __ , day of ~~'~:.L.JA..r:::..-tC-~~-· _ , 2015 .
Respectfully Submitted Ctti!J11/J ~ ARTHUR DAVID LOWE#669750 HUGHES UNIT.
RT. 2. BOX 4400 GATESVILLE, TEXAS 76597
the above captured cause numer.
On this __ fa __ , day of _11_,_1\.....:.. I{L~C~H __ I 2 015 .
Respectfully Submitted /};tJ!Jw d~ ARTHUR DAVID LOWE#669750 HUGHES UNIT.
RT. 2. BOX 4400 GATESVILLE, TEXAS 76597 MASTER INDEX 'EXHIBXTS'
No. Vol
2 Trial Court's Oder Corrected Judgment and Sentence 2 1 of 2 Judgment and Sentence 2 The1 339th Deputy Clerk [ L. Guevara], altered Orders & ·: 1 1 1 of 2 Judgmeht arid Seritence 2 The Jury's Actual Verdict On •·special Issue' Form 1 1 District Clerk's acknowledgment of [Disp~sition of 1 1 initial Applicanion for Writ of habeas Corpus.
Respectfully Submitted &thwJ dOL<tt. ARTHUR DAVID LOWE#669750 Pro Se.
*15 I
I
CHRIS DANIEL 1 I
HARRIS COUNTY DISTRICT CLERK Direct Dial Line: l ~ . ~ I :'fJ'~OFi~~ I l ARTH~R LOWE #669750 . I HUGHfSUNIT .1 RT. 2. BOX 4400 1 I GATESVILLE, TX 76597 .
J-······· Dear 1 • LOWE, ·
I:8J Y lur motion/request NUNC PRO TUNC was filed with the District Clerk and on
o4121114 the Court: I l D Took no aCtion D Denied your Motion/Request [g1 Granted your motion/request l D Advised attorney of record D Took action 0 Other l l
l i I:8J 0 her: PLEASE FIND ATTACHED A COPY OF THE CORRECTED JUDGMENT
AND SENTENCE. ALSO, OUR RECORDS HAVE BEEN CORRECTED TO l REFLECT 2N° DEGREE FELONY - AGGRAVATED KIDNAPPING RELEASE VICTIM IN A SAFE PLACE.
By:
P.O. BOX ;4651 • .HOUSTON, TEXAS 77210-4651 • (713) 755-5749 ·
l .......... .
*16 ...... a·~-~f HA..v;;,···· ... ,· ~ .4·~······ \5' "' •
·· /.~.J·'u.... ··· .... ~\ "....._. :,.v·: -~· . • .,. • a ,.--._ • . : ...,. : . ~- . i .. "*'-'" . . . . . . . . -..~. . ! ~! . : ~ ·: . ~ - ... . l '1. ::;.-.~.. ...... ~'~··············~ •. .: .• ·~ : 'tl s .. ·· 1 ·-I.~ (J ·············~··· I I, Chris Daniel District Clerk of Hams County, Texas certify that this is a true ~d correct c6py of the original record filed and or I
recordedt· my office. electronically or hard copy, as i appears on this date. l Witness official hand and seal of office this May 2. 2014 ·
I Certified E>ocwnent Nwnber:
~~
Chris DJeL DISTRICT CLERK
HARRIS CbUNTY, TEXAS )
In accordance with Texas Government Code 406.013 electronically 1ransmitted authenticated documents are valid. H there is a question regarding the validity of this document and or seal please e-mail ~upport@hcdistrictclerk.com ·
\ *17 \
(ii) itECiJHIJElrs MEMORANDUM: rl1i=-.. instrume!H is Of !)IIOf {jllillity and 1lflt ;u1t.i5fdt:tory ft•r ph(t¥Jgraphic GIJTt'( D~i?l). 4 \ll \zolt &Jfff0£Ct~ /!)·'f .UU NC. 1'Qo I{_;JJ(_ n;c!;rd;~thm; ;,n~fi;lr :~l:.~r;~tinrls we1e pn!'5enl r:t th~~ tir.1~ ~,! r;lnllnl{. 6 <,- t( I t: <-1 NO. ______________________ ___ }]1 ~ THE STATE OF TEXAS IN THE DISTRICT vs. COURT OF HARRIS COUNTY, TEXAS Change of Venue From: _____ ~-;'~,~~~j4-·-------- ~ ON JURY ~ICT OP GUILTY PUNISBMEHT FIXED BY COUR~ OR JURY Date of Judgment: tlc fob f.'r J.-3 ( 9 'i 3 Judge Presidi~g: LA£1"'~( {Jf fl;r Attorney Attorney ·f<../2'2-6 for State: for Defendant: ) Waived Counsel A 1 j I •1 ~( ·1 I v t-1 .f I~)'"' If' ( ~1 J Offense: \ ·; .. iJ Date Offense . IM "'··· f" .,, - {!1 L/ / '113 Degree: Committed: ------------------~~~--------------------------~~----------~--------en -... Charging (.n Instrument: Indictment/~Afe~atiap Affirmative Findings: (Cin:le appropriat.e odccUon:... N/A =Dill available or DDl.q,plicab Punishment and SCll.fYlt2./1:{ lt fe. Itu..-PYI /Fine Paragraph( e): Date Sentencef\ll J0(::J ( D Place of Confinement: Plea to Enhancement Imposed: DEADLY WEAPON: Yes :No . l ·y costs: 1/lfT) ::Jt> Assessed by: ,:::t.J L'\...f 6A.J0rd:: ~ ff [6] -f 1,-,r. FAMILY VIOLENCE: Yes :No :(H/A , /A) '"'0..., 0. fV1 1 Punishment CT\ ~ Findings on ~~~ Enhancement: <P HATE Commence: Date to e. {Jf · . .. f_t{) '/V7.( ?~./1. ",_;/'(. r 'f. r; Total Amount of Time Credited: ~.3 ~ cLQ.t.,.. Restitution/Reparation/Reward: concurrent Unless Otherwia·e Restitution/Reward o be Paid to: Name:.~------~--~~----------~ Address: __________ ~--------------- 4 Statement of Amount of Payment{&) required/Terms of Amount=----------------,L------------~~ I • TbUo cauoe being c:allcd for trial. lhe StaLe appeared bylbe above named aaomcy, ODd lhe defcadallt ap~ iJI penon in open court, lbc abovJ named c.,......l for Ocfcndaal abo being pn:K111, or wbcr:: • ckfcnd.an! ia ""' repr: .. nted l,y c~'Unsel, lhe Dcfcnd.alllla!owingly. intcmeenlly, and voluntarily waived lhe right to ~q>n:acntation by counsel u indicated above, ODd lbe aaid Defendant bovina beeo duly arnigncd ODd it appearing to the Court lbat Dcfcndalll waa mentally competent and baving pleaded u lhowu abOve to lhe cba!Jing instrumclll, bolb partia annoua&:ed """'for trial and lbcn:upoa a jury, ~wit, lhe above named f<mmaJ> and elcvcu olben·woa duly seleetcd, impaoelcd, ODd awom, the jury bovine beardlbe oba<Jing instrument read ODd lbe Defendant" a plea lbercto and baving bean! the evidcuce aubmincd ODd baviug beeo duly obarJCd by the Court, Rliled iJ1 clwge of lbe proper offiCer to consider lbe verdict, and. aft.erward were brought into Court by the proper oftker,the Dcfendaat ODd ckfendaat"a counsel, if auy, beirlg prcacut, ODd I'CIUI1ICd into open court lbe verdict oct forth above, which waa received by lbe Court and ia here aow cnt.ercd upon lbc minuLea of lbe Court u ahowllobove. . \ ) ) ; t a .Joey .. C:F6 ,19 Q ~ the o.rcndan1bavu.nn:viously ele<:Led to 0n bave punilhmcnt aueaacd by the above ahowo aaaenor of plllliahmcnt, ODd when lbowo above lbat the oba'IPna imlnlmcut cOIIIainl cultaa&:emctit pangnoph(a), whieb were not waived ODd allegct Dcfcndanl to bave beeo convicted __ ·_J __ w __ :' __ <-.L ________ _,rcvioully of any felony or offeaaeo for lbc purpoae of enbanl:emelll of punilhmcnt. the Court aaked Dcfeadanl if web aUegationa were true or faloc ODd Dcfcadant aJDWercd u abowa above. And when Defendant ia shOWD above to bave elecLed to have lbe jiny ....,.. puailhment, aueb.jury wu called baek into the box ODd bean! evidcoc:e relative to lhe question of punilhmcnt and bavingbeen duly ebarged by lbe Court; they retired to coDJider aueb question and after bavia& dclibentcd lbey rclumed. into Court the verdictlhowa under punishiiiCDl above; and wbcn Defcndonl ia shOWD above to bave elected to bave puniahmcnllixal by the Court. iJI due form of taw fUrther evidence waa heard by lhe Court relative to the question of punishmcnl ODd the Court r.X..S puniJhmcnl of lhe Dcfcadallt u showa above. . IT· IS. THEREFORE, CONSIDERED AND ORDERED by the Court. iJithe presence oflhe Dcfendont.lbat the aaid judgmcut be and lhe aame is hereby iJI aU things approved ODd confirmed. ODd lbat lbe Defcndonl ia adjudaed guilty of lbe offenx aet forth above u found by lbc verdict of the jury, and said Defcndonl be punished iJI acco~·tb the Jill}' verdkt or lhe Court"o finding, u shown above and lbat lbe Defendonl ia aent.em:ed to a Lenn of impriaoruncnt
~ • '\''- or line or bolb. as aet forth abov • · lbat lhe aaid ~fcndanl be cklivercd by the Sheriff to lbe Director of lhe Texaa Departmenl of Criminal Juati<e, Institution Diviaioa, or other penon legally authorized 10 receive web ~nvicta for lhe puniahmenl aaaeued herein, ODd lbe aaid Defe~m shall be confined f<?r the obove named term iJI accordaa&:e with the provisiona of law governing web punishmcnlll ODd execution may iuue as neceuary. Further, lhe court linda the Presentence lnveatigation, if [10] ordered, was done according to lhe applicable jnoviaioaa'of Art. 41.12. Sec. 9, Code of Crimiaal Procedure. AND lbe aaid DefcO.Illnl waa n:manded to jail until aaid Sheriff can obey lbe directiona of lbia jud,.;.c.n. Plea Before Jury - Court/Jury Assessing Punisturient CRM-"4 Rl0-07-93 Page *18 ** TO BE COMPLETED ONLY WHEN IMPOSITION OF SENTENCE _SUSPENDED AND DEFENDANT GRANTED . PROBATION • I Ou lhia·lhe - - - - - - day of - - - - - - - ' - - - ' - - - - - ' 19_.. ---.....:... impolilion of lhia ICIIICDCe ilmipCIIded and
••( ----· defendant ia plaeed oo Adult Plobatioo for --'------.:.>·yean pendU..bia abidUJa by_ and - v~ lho tcrma and oonditiooa of probation, ~-.~ approved by lhia court aad &lladied u a part of lhia jud,_..s baewith. BILL 0.-P C 0 S T. S (NOTE: If. •I•. or •o• see attac~ed order) Payment· Type: __ (S, ';:--o,":-M-ar L:) 1 I Jail Time: _ B/D/M/Y ~-/H~ ~aYes N=N_o _(jail/fine/eclat concurrent) Time Assessed Texas Department cf Crimina1-.r~ce,Institutional Div.: _ D/M/YI 1 Jail credit: _ B/D/M/Y Sentence~egin Date: Jail as a Term of Probation: ___ _ B/D/M/Y Additional~il Credit: _8/D/M/YI Payable on or Before: · PLO: Reward _SPR:·...., OOC: I Hours -of sentence to be Served by Performing""~tnlnunity Service : l Defendant to Serve sentence by Electronic Monitoring? (Y or R): · ·. [1] Judicial Fund Fee • ._.................... ·Arrest W/0 Warrant/Capias •••••• ·••••••• NOTE TO SHERIFF: ~........................ Clerk's Fee •• District Attorney Fee ••••••••••• ·•••••• serving Capiaaz ___ /Summonaz ___ •• Sheriff's Fees (Total)................ ~ ••••• ~........ Jury Fee ................ " • ·• • • • .. • .. • .. Special Expense ••••••••• Sununoning ___ Witneaa/Mileage •••• Trial Fee .••••••••••••• ~.... ~- ~............. ~............... Release • ••••••••• ·• • • • • • • • • • • • • • • • • • • • • ~ •••.••• ~ •.• [1] Reward Repayment. • • • • • • • • Fine Amount •••••••••••• C.;mmi.tme~ Takirig: -------------- RECAPITULATION --------- - - - - - - - - Miscellaneous coats ••••••••• ;. •........ ••• ·••••••••••• Transcript at: MAP Traffic coats..................... Misdemeanor Costa..................... ~ Attachment· .•••• •••• ·• • • • • . . • • •••••• Bonds •••• -~·-............... Pages........ T~ating ••• 1 40 001 Breath Alcohol Rehabilitation Fund •••••• ~~()I CJPF· •••••••• , ... ~....... s-k.X> I . I I I I I I I I I TOTAL AMOuNT OWED •••••••• I Attorney Fee •• • •••••••••• I PTR Pee •••••••••••••••.•• I Financial Responsibility. Security Pee ••••••• I Record11 Preservation Fee. --,16-f-66-l • I Amount Probated/Waived ••• I ~..... --5-j~OI- I ACCA ••••••••••••• ~....... ·I OJO Jury Fee •••••••• ~........ I 001 I 2 ~ • DCLCF ••••• _. • • • • • • • • • • • • • • ~ JCTF •• I cVCF: LEOSEF .••••••••••••••• • •• • Crime Stoppers Fee ••••••• lOCi I aS>: ••••••••• Fee •••••••••••••• ·•• Video • • • • • • -~ ••••••••••••••• •... ~-- 00 DWI .Evaluation Pee....... /01.~~-~ I 1 I . I 1 20 I I SO I 00 00 I I I I . I J I· ( I - I I l I I ( I I I I c ( •
signed and entered this the
Notice of Appeal:-
Probation Expires:
Mandate Received:
After Mandate Received, Sentence to Begin Date is: (Otoclt ONLY iC Applicable) . I DcCcodanlto be plaeed in lhc ~S.A.I.P. • (Boot Camp) program in lhc Tcxaa.Dcpartmeat of Criminal Jullk:c, 'lnllituu.;,.l Diviaion pcnualllto Art. 62.03 (c)-9 Rcviaod Statu!co/.Micle 42.11, Scdioo 8, C.C.P. Received on _____ day of-----------------' A.D., 19 ____ at ------- o'clock ____ M. Sheriff, Barris County, Texas c c
Verified. ________ _
-I ~--~--------------
Defendant's Right Thumbprint -2- ~~-4 Rl0-07-93 *19 Cause No. 0659.15601010
The State of Texas
v. LOWE, ARTHUR DAVID a/k/a
In the 339TH District Court or County Criminal Court at Law No. __ Harris County, Texas
ENTRY OF JUDGMENT NUNC PRO TUNC Today, the Court held a hearing on
0 . the State's written motion for judgment nunc pro tunc.
~ the Defendant's written motion for judgment nunc pro tunc. 0 its own motion.
Satisfied from its own recollection and I or from the evidence presented the Court grants the motion and ORDERS entry of the following judgment in the minutes of the cburt in the above styled and numbered case to make the following correction: 1-IOFFENSE FOR WHICH DEFENDANTCONVICTEDSHOULDREAD: AbGRA VA TED KJDNAPPING RELEASE VICTIM IN A SAFE PLACE Cl 00714) 2-IDEGREE OF OFFENSE SHOULD READ: 2N° DEGREE FELONY.
f8l If applicable, the judgment nunc pro tunc supersedes the erroneous judgment previously entered and attached.
l
! *20 CASE No. 065915601010 INCIDENT NO./TRN: 9000184029-AOOI ,,§ IN THE 339TH DISTRICT § v. § COURT
§ LOWE,.~T 1URDAVID § HARRIS COUNTY, TExAs
I § § STATE ID No.: TX02465170 I JUDGMENT OF CONVICTION BY JURY 1\ Judge Presiding: I · HON. CAPRICE COSPER Date Judgment 10/22/1993 Entered: I Attorney for JIM RUST Attorney for Statej DAN RIZZO Defendant: Offense for which Defendant Convicted: AGGRA VA!fED KIDNAPPING RELEASE VICTIM IN A SAFE PLACE (100714) II ' l Charging Instrument: Statute for Offense: INDICTMENT NIA D~te ofOffen§e: I
3/4/1993 l DeK!ee of OffenseJ Plea to Offense: 2ND DEGREE; FELONY NOT GUILTY l Verdict of Jurv: I Findine-s on Deadlv Weapon: i l ! l GUILTY N/A Paragraph: Enhanc4ment Plea to Findings on Enhancement 1•• Paragraph: Punished As§gssed 1 [51] bv: Punishment and Place I JURY of Confinement: . I I I ' I LIFE INSTITUTIONAL DIVISION, TDCJ TRUE NOT TRUE THIS SENTENCE SHALL RUN CONCURRENTLY. Date Sentence Imposed: 10/2811993 2"d Plea Enhancement/Habitual Paragraph: to EnhancementiHabitual Paragraph: Findings on 2nd ~ Dat;g Sentence to Commence: 10/28/1993 NOT TRUE TRUE [1] 1 l ! l j ll J I
0 SENTEN~E OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR N/A 1.1 I ! I Fine: Court Costs: Restitution: Restitution Pavable to: 0 VICTIM (see below) 0 AGENCY/AGENT (see !;>~low) $ N/A $ 134.50 $ NIA Sex Offender Re!Pstration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC. chapter_62. J ..... &:!Time ~Credited: 0\ 0\ rtn [0] N/A . The age of the victJn at the time ofthe offense was If Defendant is to serve sentence in county jail or is given credit toward fine and costo:;. enter days credited below. I From I 3/12/1993 to to to 10/28/1993 From From From . to to to J ~~--~~-2~3~!~D_A~Y~S--~N~O~TE~S~:~T~O~W~A~R~D~IN~CAR~-C~E•R•A•T-IO~N~,-F~I~N-E~,AND_.~C~O~S-T_S~~~~~-- ~ All pertinen~"nformation. names and assessments indieated above are incorporated iDto the language of the judgment below b)· referen'cb. ~ This ca was called for trial in Harris County, Texas. The State appeared by her District Attorney. ) j ~ Counsel/Waiver of Counsel (select one) E 181 Defendant ap~ared in person with Counsel. l ~ 0 Defendant k.n?wingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open cour~ g It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging J 0 ~nstrument. Both I parties announced ready for trial. A jury was selected, i_mpaneled, and sworn. Th_e I!\!TIICTMEI\TT was re~ · to the 13 JUry, and Defendaht entered a plea to the charged offense.· The Court received the plea and entered It of record. j l ~ I l U Pnr,:e I ofS • F-Convictiou by Jury wilb TDC checklist_OG5915401010_3.dacm
__ ....... d
.,
--· ._ ;.~"' ' ~-~- T~e-j heard the evidence submitted and argument of counseL The Court charged the jury as to its duty to dete i~e ihe guilt or innocenc of Defendant, and the jucy retired to consider the evidence. Upon returning to open court, the jucy deliver.! d its j ve.'dict in the pnlsence of Defendant and defense counsel, if any. ' ~u~ assess punishment. After hearing evidence relative to the question of punish~ have the [1] dant elected 0 ~ Court. Defer tion, and it retired to consider the question of punishment. After due delib~~a jury pJnishment. The Court charged the of nt, the the question a to wntten election heard eYldenu . .otive J1ll'Y assess pu•1lsh-ent. T.be have the ~ JIJlry. Defendant entered a plea and filed to the ju1-y was broJght into Court, and, in open court, it· returned its verdict as indicated above.. JUr')' .. . Punish~ent Assessed I o~e) Court_ hy ' No eleo~ion (select Jury I The CoJ.-t received the verdict and ORDERED it entered upon the minutes of the Court. . . . I . i j j Court assessed D fendant's purushment as mdicated above. - 0 No Election. Defendant did not file a written election as to whether the judge or jury should assess punishment. After hea~· g I evidence relative to the question of punishment, the Court assessed Defendant's punishment as indicated above. The Cou ·t FINDS Defendant committed the above offense and ORDERS. ADJUDGES Al\T]) DECREES that Defeo ant is GUlL TY of the jbove offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to the app~ able j provisions ofTE:d CODE CRIM. PRoc. art. 42.12 § 9. The Co~ ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all fines, court cos , and l~ restitution as indicated above. . j PunishJnent Options (select one) · l8J Confineme~t in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Texas, r the Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The C~urt t sentence. The Court ORDERS that upon this custody of the Sheriff of this county until the Sheriff can obey the directions of from confinemenf. Defendant proceed immediately to the Harris County District Clerk's office. Once there, the Court lease o: DERS be confined for the period and in the mamier indicated above. The Court ORDERS Defendant remande ORDERS Defendart to [1] to the Defendant to paYI 1 0 County Jnii above. I Confinement in Lieu of Payment. The Court ORDERS Defendant immediately commi,tfed to Confinernent [1] 1 to or make an·angements , C.· rurt pay, any remaining unpaid fines, court costs, and restitution as ordered by the l the custody ofthe Sheriff of Harris County, Texas on the date the sentence is to commence. Defendant shall be confined · the Harris County ~ail for the period indicated above. The Court ORDERS that upon release from confinement, Defendant sha proceed immediately to the Harris County District Clerk's office. Once there, the Court ORDERS Defendant to pay, or rei ke I an·angements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. 0 Fine Only Pryment. The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant tb proceed immediately to t~e Office of the Harris County . Once there, the Court ORDERS Defendant to pay or make arrangemenfl o pay j all fines and cou'f costs as ordered by the Court in this cause. . Execution I Suspension of Sentence (select one) . ·1 181 The Court O~DERS Defendant's sentence EXECUTED. · · 0 The Court O~DERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on communit supervision for tlie adjudged period (above) so long as Defendant abides by and dties not violate the terms and conditions of l judgment by reference. community The order setting forth the terms and conditions of community supervision is incorporated into thisj supe~sion. The Cour [1] ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated.
· Furthermore, the following special findings or orders apply: 1 Signed and 1ntered on 10/28/13
X
.,., ....... [0] JliDGEPRES
"<t Notice of Appeal Filed: 10/28/1993 r · l . Mandate Received: 6/28/1995_ Type of.Mandate: AFFIRMANCE- iST COURT OF APPEALS ·:g
- 232 D YS CREDIT Jail Credit: \0 [00] ~ After Mandate Received. Sentence to Begin Date is: 10/28/1993
\0 kj ,rJ s z '
c Def. Receivedon_i-__________ at ___ 0 AM 0 PM Right Thumbprint ~ By: ------7~-----------. Deputy Sheriff of Harris County ;GUEVl ENIKR04: _ __ LCBT: _ _ _ LCBU: _ _ _ ENIKR18: _ _ _ . F--Con\oiction by Jul')" ,.;o.h TDC checldist_OG5915401010_3.clocm Pa,.ro 2 of3 *22 I J .'-'
'~ CADSE NO. 6591.56 i I Dl 'fJIE 339ft DZSBl:C!f OOIIR!l' vs. or JWUUS CXJm1'.l'Y, t".DAS ADGUS'f 'fBBit, A. D., 1993
ARi'BDB DAVID LOWE
SPECIAL ISSUE Now, if you have ifound tbe Defendant -guilty of aggravated I
kidnapping, as _defineq in this ~ge.- L'Dtl only in that event,
y~u aust deteaaine vf'etber or ·aot tbe .defendant voluntarily
released tbe victUa alive and -in a safe place9
!
Do you the .Jury f+Dd tbe defe~t vol.unt:arUy re1eased tbe
victia al.ive ·aDd· in Ia safe place, in the COP"'iss.ioo of the
offense for vhicb be baa been convicted?
VERDI~
We, tbe jury, ret .. rn in opeo eourt ~ ~ aaawer as 011r
answer tC? the special, +sane sublaitted to us, an4 tbe saae· iS our
verdict in this case.
,....
piLBDi
. 1CA1'BIIltJNB 1'DA -· ···--t~ .... 0Cl2}
CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK December 22, 2014
ARTHUR DAVID LOWE, JR.
#669750 HUGHES UNIT
ROUTE 2 BOX 4400
GATESVILLE, TEXAS 76597
RE: CAUSE #659154-B
339th District Court
Dear Applicant:
Your post conviction application for Writ of Habeas Corpus was received and filed on 12-22-14.
Article 11.07 of the Texas code of Criminal Procedure affords the State 15 days in which to answer the application after having been served with said application. After the 15 days allowed the State to answer the application, the Court has 20 days in which it may order the designation of issues to be resolved, if any. If the Court has not entered an order designating issues to be resolved within 35 days after the State having been served with the application, the application will be forwarded to the Court of Criminal Appeals for their consideration pursuant to Article 11.07, Sec. 3 (c) ofthe Texas Code of Criminal Procedure.
The records of the office reflect the following:
CAUSE NO. PETITION FOR WRIT OF HABEAS CORPUS DISPOSITION 659154-A 12-18-13 DENIED All future correspondence should indicate the above listed cause number.
Leslie emandez, Dep
Criminal Post Trial
CC: District Attorney
Judge, Presiding Court
120 I FRANKLIN • P.O. BOX 4651 • HOUSTON, TEXAS 77210-4651 PAGE I OF REV. 01-02-04
i >.
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
WR-25,679-22; CAUSE No.659154-B EX PARTE ARTHUR DAVID LOWE § IN THE 339TH DISTRICT COURT
Applicant,
v. § OF
THE ST~TE OF TEXAS, § HARRIS COUNTY, TEXAS
REPRESENTATIVE(s), ASSISTANT
DISTRICT ATTORNEY(s).
Respondant(s).· §
ORDER MOTION FOR R~CONSIDERATION BE IT REMEMBER, that on this day came to be considered that Appli- cant's 'Motion For Reconsideration'. After considering the pleading herein and the evidence presented, the Court is of the Opinion that the following Order should issue:
It is hereby ORDERED that the Applicant's 'Motion' is GRANTED
DENIED
r
THE PRESIDING· JUSTICE (CCA). ,.