Reed, Jason Lee, PD-1389-14

Reed, Jason Lee

PD-1389-14

Tex. App.

Aug 13, 2015

Check Treatment

Case Information

*1 PD-1389-14 No. 01-15-20208 - CR In The Court of Criminal Appeals of Texas Jason Lee Reed, Petitioner U. The State of Texas, Respondent Petition in Cause No. 1246357 from the 338th Judicial District Court of Harris County, Texas and The Court of Appeals for the First District of Texas Petition for Discretionary Review

RECEIVED IN COURT OF CRIMINAL APPEALS AUG. 052315 Abe/Acosta, Clerk

Table of Contents

Index of Authorities ..... 䒠, 11 Statement Regarding Dial Argument ..... 1 Statement of The Case ..... 1 Statement of Procedural History ..... 2 Reason for Review ..... 3 Statement of Facts ..... 4 Grand for Review One ..... 5

The evidence presented at the bearing on the State's Notion to Poljudicate Guilt was legally in- sufficient to support a rejection of the Fetition- ers self-defense claim. The trial counts reu- cation of the Fetitioners community supor- vision was therefore on abuse of discretion. Grand for Review Two ..... 6 Since the conclusion of the bearing on the States Notion to Poljudicate Guilt, material evi- dence favorable to Mr. Reed has been disco- vered. But succinctly, the incident which led to the revocation of Mr. Reed's Community Supervision was ultimately dismissed and a new witness -

*3 Curts Whitfield - has been discovered who can confirm that Mr. Reed was acting in self-defense.

Summary 000 19

Power for Relief 000 14

Certificate of Service 000 15

| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |

*4 Index of Humanities

Cases

Alexander U. State, 95 Tex.Crin. 497 (Tex.Crin. App. 1923) = 3 Burks U. United States, 457 U.S. 1 (1978) = = = = = 4 Burks U. State, 342 S.W. 242 406 (Tex.Crin.App. 195) = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

*5 | N | | | :--: | :--: | | | [Mullinsu State, 30 Tex. 359,339-40 (1973) | | | Poindexteru State, 153 S.W. 342403 (Tex.Crim.Ap. 2005) | | | Reces U. State, 849 S.W. 288812,216 (Tex.Crim.Ap. 1988) | | | Salazar U. State, 5843 W. 328914 (Tex.Crim.Ap. 2009) | | | Barkan U. State, 8043 W. 28910 (Tex.Crim.Ap. 1991) | | | Simpson U. State, 8863 W. 342414 (Tex.Ap. - Huxeton [Lsr.Dist.] 1994, per ref. 8) | | | Smith U. State, 965 S.W. 282504 (Tex.Crim.Ap. 1988) | | | Stansullu. State, 870 S.W. 282324 (Tex. App.-Anetio 1994, per. dism. 8 | | | Qitari U. State, 853 S.W. 282548 (Tex. Crim. App. 1973) | | | Wallace U. State, 1063 W. 328103,108 (Tex. Crim. App. 2003) | | | Williams U. State, 2063 W. 328611 (Tex. App.-Huxeton [14th Dist.] 2007, no per.) | | | Zutani U. State, 973 W. 328589 (Tex. Crim. App. 2003) | | | Statutes | | | Texes Rhcholic Beverage Cade 105.03 (West 2013) | | | Texes Rhcholic Beverage Cade 105.04 (West 2013) | | | Texes Rhcholic Beverage Cade 105.05 (West 2013) | | | Texes Rhacholic Beverage Cade 105.06 (West 2013) | | | Texes Health &; Safety Cade 181.1031 (West 2013) | | | Texes Health &; Safety Cade 181.106 (West 2013) | | | Texes Penal Cade 107 (West 2013) | | | Texes Penal Cade 1.09 (West 2013) | | | Texes Penal Cade 9.01 (West 2013) | | | Texes Penal Cade 9.01 (West 2013) |

*7 In the event this petition is granted, the petitioner request oral argument. Argument would assist the court because resolution of the grounds for review depends upon a detailed exploration of the facts of the cases. Further, oral argument would provide this court with an opportunity to question the parties regarding their positions.

Statement of the Case The Harris County District Attorney's Office charged Down Lee Reed (Petitioner) by indictment on August 31, 2010, with one count of possession of a controlled verbistance. Specifically, the petitioner was alleged to have possessed cocaine weighing more than four grams and less than two-hunded grams, with intent to deliver it. No enhancements were alleged in the indictment. Pursuant to a plea bargain, The petitioner pled guilty to the charged offense on June 10,2010, and received four years of community supervision. On August 2, 2012, the State filed a Motion to Adju-

*8 a dicate Quilt, alleging that the Retitianer had violared the terms of his community supervision. By committing a new law violation and failing to pay fees and court costs. A hearing on the State's Notion to Hdjudicate Quilt was held on March 4, 2013. At the conclusion of the hearing, the trial court adjudicated the Retitioner's quilt and found the Retitianer had committed the offense of aggravated assault while on community supervision, but found the allegations the Retitianer failed to pay fees and court costs to be "not true." The trial court assessed punishment at twelve years confinement in the institution division of the Texas Department of Criminal Justice. A Notion for New Trial was filed on April 3, 2013. No hearing was held on the motion and was denied.

Statement of Procedural History The judgment of Retitioners conviction was enraced on March 4, 2013. Retitioners notice of appeal was timely filed. A Notion for New Trial was filed on April 3, 2013 introducing new evidence. On August 29, 2014, The First District Court of Appeals issued an unpublished opinion by acrrices Jennings Hojley, and Sharp affirming Retitioners conviction.

*9 The first court of Appeals affirmed the conviction in this case despite the over- whe acted to self-defense (exas tenal Codes 4.31, 4.32) as stated in Gilbert v. State, II (ex.Crim. 529,533 (tex.Crim. App. 1930), (exas tenal codes 30.02,30.05), the Due Process Clause as stated in Cashrons Pionderetor v. State, 153 3W. 32403,405 (tex.Crim. App. 205) (citing Cockson v. Virginia, 443 U.S. 307 (1974), Sabagur v. State, 284 3W. 32874,877 (tex.Crim.App. 2027), No duty to re- treat in Moales v. State, 357 3W. 321,5 (tex. Crim. App204), Hajkovic v. State, 393 3W. 32282,384 (tex. Crim.App. 205), the reasonable appearance of danger in Gilbert v. State, 14 (ex. Crim. 532,533 (tex. Crim. App. 1930), there was no pioocation from the Petitioner to Matthews as stated in McCandless v. State, 42 (ex. Crim. 58, 63-64 (tex.Crim.App. 190), as well as defenses supported by Alexander v. State, 95 (ex.Crim. 497,499 (tex. Crim. App. 1950), Mosby v. State, 482 3W. 22 256,358 (tex. Crim. App. 1972), (citing 1 Wharton's Criminal Evidence 3218 at UBS-449 (1971 ed. 1955)) (the size, strength, and physical characte- istics difference), and finally on the fact that was made in Hacker v. State, 589 3W. 32 860,874 (texas Crim. App. 2013) stating that to reuoke the Petitioners community supervision with all allogations being "not true" on a new law violation the Petitioner should be acquitted and reinstated to community supervision

*10

and an order dismissing the State's Motion to Adjudicate Guilt should be the necessary remedy. (Burks U. United States, 450 U.S. 1, 17-18(1978); Greene U. Massey, 450 U.S. 19, 24(1978)).

Abstract

Statement of Facts

Charles Matthews the complaint in the present case has been a regular customer at Reed's Lounge for about six to seven years. In the years that he has been patronizing Reed's Lounge, Matthews has developed a reputation with the bars owner as some one who would continually cause problems by "messing with folks." In the words of Sidney Reed - the namesake of Reed's Lounge, as well as its owner and the Appellants/Retitioners fatherMatthews was always talking about hitting somebody, whipping on somebody, and I go and I talk to him and he'll leave or something like that. But I ain't never really put him out for good, you know, He's been asked to leave quite ateli times." This sentiment of Matthews posing a continual nuisance at Reed's Lounge was echoed by the Retitioners wife and co-worker at the bar Madeline Wright Reed, who stated that most of Matthews visits to the bar resulted in him "bothering other customers, the guys that work for us," and that he had been asked to leave

*11

*12 into the bar so late. Although Matthews respon- ded to the Fettioner that he was simply there to use the restroon, this differed from the motive that he assigned to the trip in his testimony. Specifically, Matheus testified that his true purpose in going to Keels cause that night was to meet up with his brother, who goes by the nickname of "J" but who was not actually present at the bar once Matthews arrived. In Matthews's rendition of events, the Fettioner did not take kindly to his need to use the facilities and responded with profanity. After using the restroon, Matthews went outside the bar to smoke a cigarette, while his wife and sister went inside. A short time later, Matthews returned inside and was allegedly greeted with a flurry of prota- nity from the Fettioner. After telling the Fettioner that he needed to calm down, Matthews claimed that the Fettioner began to engage in a fight with "Big O"-one of the other female patrons at the bar - that ended when the Fettioner was skanned on the ground by the female. Matthews re- counted that it was at this point the Fettioner approached him, pointed his finger at Matthews, and continued to her ber bed.

*13 insults, to which Matthews responded by grabbing the Retitiner by his shirt and throwing him to the floor. In Matthews version of events, the Petitioner responded to being grabbed and thrown by retrieving the pistol behind the bar and used it to shoot Matthews. After being shot, Matthews exited the bar and ran across the street where he met up with his sister and wife. Responding officers confirmed that Matthews was shot by the Petitioner one time in the stomach area. Beyond the bullet wound in Matthews out, no evidence was detected at the scene indicating more than one round was fired. The Petitioner's recollection of the events on that night differed in some significant ways from that of Matthews. After the Peach Lunge, the Petitioner instructed Matthews to leave. The Petitioner confirmed that Matthews had grabbed him by the collar of his shirt and pushed him across the back chance floor. However, rather than going behind the bar to grab a pistol immediately after this, the Petitioner went behind the bar to make a telephone call to as well as to protect himself from any further aggression by Matthews. The Petitioner's decision to call the police was motivated in part by his knowledge of Matthews's penchant for

*14

*15 the Peritiner from fighting, adding that Pothavs held a stanlcant size and strength advantage over the Peritiner. According to the Peritiner's wite, his hand injury prevented the Peritiner from forming a fist. The gun which was used by the Peritiner belonged to either the Dars over or his wite-the Peritiner's father and mother, respectively-and was kept at the bar purely for purposes of protection. Not every chamber of the revolver held a bullet. Rather, the pistol contrained only four to five bullets, including two or three spent raunds which had been shot by the bars over during a previous robbery attempt and never remated nor replaced with live raunds. This left only one or two live raunds in the pistol at the time it was used against Matthavs.

When police officers arrived at the scene, they identified the pistol used by the Peritiner as a .58 revolver containing five spent cartridges. Officer Timothy Hicks - who had appok intently a 1 year's experience as an officer at the time of the events in question - secured the weapon and inspected the cartridges in an attempt to discern how many shots had beanticed by the Peritiner by smelling the spent cartridges looted in the pistol's chambers. Though his inspection, Officer Hicks surmised that three shots had been liced. Officer Hicks attributed his ability to dis-

*16

*17 I didn't run - talking about the defendant, Mr. Reed. He didn't run. [Dficer Hioks]: Yes, sir. The Defensio: Well, do you think he had some duty to run? [Dficer Hioks]: Yes, sir. The Defensio: Yes? You thaght he had the duty to run? [Dficer Hioks]: Did I believe he had a duty? The Defensio: Oh-huh. [Dficer Hioks]: You might want to rephrose. I don't understand that question. [The Defensio]: Well, what you told the Court was that one of the reasons - you actually listed two reasons why you didn't believe him, and one was because he didn't run. He was still there at the scene when you got there, right? You remember saying that? [Dficer Hioks]: Yes, sir. The Defensio: You think the fact that he didn't run affand he stayed at the scene and waited for the police to come makes him believable or not believable? [Dficer Hioks]: Not believable. The Defensio: [For believable? So, if he had run away and hid from the police, you would be more likely to believe that he was in fear of his life when he shot the gun? [Dficer Hioks]: Sir, either may, yes, sir. The appellantifertiazer was subsequently detained at the scene on the theory that he had committed aggravated assault.

*18 The evidence presented at the hearing on the States Motion to Heljudicate Guilt was legal- ly insufficient to support a rejection of the Retitioners self-deterse claim. The trial courts revocation of the Retitioners commu- nity supervision was therefore an above of discretion.

Grand for Review Two

Since the conclusion of the hearing on the States Motion to Heljudicate Guilt, material evidence favorable to Mr. Reed has been discov- ed. But succinctly, the incident which led to the revocation of Mr. Reed's community supervision was ultimately dismissed and a new witness - Curtis Whitfield - has been dis- covered who can confirm that Mr. Reed was acting in self-deterse.

Summary of The Argument

There is no factual dispute as to whether the Retitioner shot Matthews. The only issue contested at the hearing on the States Motion to Heljudicate Guilt was whether the Retitioner was justified in employing directly force. Based on the evidence

*19 presented, the trial courts rejection of the Retitioners self-defense claim was not supported by legally sufficient evidence. The subsequent revocation of the Retitioners community supervision by the trial court was therefore an abuse of discretion.

By entering Reell's Lounge after he knew that it had closed and after he had been asked to leave, Matthews was trespassing and admitting a criminal act. His assault on the Retitioner upon entry into the closed bar transformed Matthews actions from a simple trespass into a burglary because the Retitioner had away right to be at Reell's Lounge - as it was both his place of employment and his habitation - the statutory presumption that the Retitioners belief deadly force was immediately necessary is raised. This presumption was not rebutted by the States evidence.

There can be little doubt that had the Retitioner used less-than-lethal force against Matthews in response to Matthews grabbing at the Retitioner in contemplation of a follow-up attack, the Retitioners actions would have been justified under section 9.21 of the Penal Code. A more difficult question arises because the Retitioner employed deadly force, however.

Because Matthews threw the Retitioner

*20

14 Against a micar and threatened to "slide" him by whipping him against the floor-both the micar and the floor are potential already weepers the Fettioner was justified in using deatly force to protect himself against a further attack by Mathews. Based on the threats and actions of Mathews, it was reasonable for the Fettioner to believe any further attacks would likewise consist of Mathews using a deadly weapon against him. Further, the Fettioner was physically incapable of engaging in a fight with Mathews because of a broken hand. Based on his subjective knowledge of Mathews criminal history, his own physical limitations, and the immediately preceding acts of violence committed by Mathews, the Fettioners fear of imminent bodily injury or death at the hands of Mathews was reasonable.

Prayer

Soon Lee Read asths this Honorable Court to reverse the trials carnts adjudication of guilty and order the dismissal of the States Motion to Heljudicate Guilt.

Respectfully submitted, Sean Le Read

*21

Certificate of Service

I carify that a true and correctopy of the creeping Petition for Deceretionary Review has been saywed, via United States mail to Zamie Felicia, Harris County Resistant District Attorney, 1901 Franklin Street, Suite 600, Huxston, Texas 77003 - 1930 and on the Srote Prosecuting Attorney, P.O.Box 19405, Austin, Texas 78711 on this the ler day of December, 2014.

Opers of Cend Sason lee Read

*22 No. 01-13-00208 - C8 Saxon Lee Read*1843497 8 Petition in Cavellb. U.

State of Texas $\underset{S88th Judicial District}{2}$ Court of Harris Center, Texes and The 3 Court of Appetts for the 3st District of Texes

Motion To Suspend Texes Rules, Of Appellate Procedure Rule, 42 Number of Capies and Recognize Re 3 States and Limited Access to Legal Knowledge and Information

To The Court Of Criminal Appetts: Caves no2, Saxon Lee Read, Petitioner/Reitor, prove in the above stuled and numbered cause of action, on the 30th day of July 2015, and files this original Motion To Suspend Texes Rules of Appellate Procedure Rule, 4.3 Number of Capies and Recognize Re 3e Status and Limited Access to Legal Knowledge and Information, and would show the court the following: I.

No Access to copy machine.

*23

Limited Press to Legal Material and Limited Knackebye to Legal Procedure III. P.D.R. was sent to Jamie Felicia, Harris-Canny Resistant District Attorney, 801 Flashin Street, Sre. 600, Hauston, Texas 71008-1450 and the State Preseerting Attorney, P.D. Box 12405, Pustin, Texas 78711 instead of sending the P.D.R. to Abel Acceta, Cleft-Court of Criminal Appeals of Texas, P.D. Box 12308, Capital Station, Pustin, Texas, 98711 on December 1st, 3014 by mistake.

Payer for Relief

Whersfore, premises considered, Retitiner, Socon Lee Reed, pio se, respectfully requeers that the Court of Criminal Appeals receives this motion in good faith. Retitianer prays that the Court of Criminal Appeals, hereby, grants this forthcoming Retition for Discretionary Relief.

Respectfully submitted, by:COROND-REED, SACHU. REeED (petitioner) ocfile/SLK