*1 judg- рoint, reverse the precluded entering from Green’s home to trial Payton, warrant. 445 ment and remand for new trial. execute аrrest 1388; Miller, at 100 S.Ct. at A.2d 364. its argument the alternative to possessed
that Officer Carter reasonable apartment,
belief Green was exigent
State contends that circumstances ran Yarborough through
created when RODGERS, Appellant, justified entry. apartment In this however, case, exigency from arising Yarborough’s solely by retreat created improper pre Officer Carter’s action of Texas, Appellee. The STATE
venting closing. the door from See Stаte No. 10-02-080-CR. Morse, 403, 408, N.H. A.2d (N.H.1984); State, Green v. 666 S.W.2d Texas, Appeals Court 291, 294 (Tex.App.-Houston [14th Dist.] Waco. that, pet.) (holding entry no where justified, it a bаsis must be on other than May 2002. emergency), disapproved contrived grounds, other Messer v. 729 S.W.2d (Tex.Crim.App.1986); Spears (Tex.App.-Fort rеf'd) (noting emergency
reasonableness of an officer’s
entry premises judged onto of another is
by the circumstances as existed at enter).
time the decision was made to agree
We therefore cannot with the State’s pos Officer Carter
contention even
sessed no reasonable belief Green was
home, justified he nonetheless was in en
tering apartment based on cir exigent
cumstances. above,
For that the abused discre-
hold trial court its denying
tion Green’s
press. point. We Green’s second sustain
IV. Conclusion. light disposition Green’s point, not reach his first
second we do
point concerning legal the factual suf- con-
ficiency supporting evidence second Having
viction. sustained Green’s
617
GRAY, Justice, dissenting.
Rodgers, Edinburg, pro se.
If
throw the rule
going
we are
book
Segrest,
County
W.
McLennan
John
as
acting
away because a defendant
is
Waco,
Appellee.
for
lawyer,
еxpressly
their
then we should
own
understand what we
state
so
DAVIS,
Chief
Before
Justice
Justice
dealing with individuals
doing.
VANCE, and Justice GRAY.
lawyer
their
it is
own
may
frustrating
because
sometimes
We know
not follow the rules.
what the
ABATEMENT ORDER
to do.
trying
individual is
We know how
PER CURIAM.
quicker
it.
do
It would
and easier
ignore
for us to either
the rule or simply
Boyd Rodgers filed a
se motion for
pro
take on the role of the advocate and do
DNA tеsting
forensic
and
of
needs
whatever it is that
to be done.
under the
provisions
chapter
counsel
64
rules, or
ignore
if we
become the advo-
Code of
Criminal Procedure. See
cate,
is
given
we have
individual that
Tex.Code CRIM. Proc. Ann. arts. 64.01-.05
represеnted by
more rights
(Vernon Supp.2002).
court
denied the
represented
than the individual that is
motion,
appealed.
65
Baughman
Baughman,
сounsel.
2001,
309,
(Tex.App
S.W.3d
has filed a motion
. —Waco
denied);
California,
Faretta v.
pet.
accord
that we abate
this
2541,
806,
46,
2525,
422 U.S.
835 n.
95 S.Ct.
exрressed
of counsel. For the
in
(1975);
DNA be all that is re- dissenting. quired. GRAY art. Justice Ann. Tex.Code CRIM. PROC. docu- 64.01 If the сate of service on the other tendered ments, only it proper submitted certifies on, to, court, form the it is been conviсting served mailed convicting duty Court. apparently *3 attorney representing treating response the to the a motion as motion for the the PROC.Ann. arts. of appellate State. counsel because TexCode CRiM. abating The 64.01-.02 are this matter a determi- for DNA was But indigency purpose. denied. nation of by the the “motion” has never been filed a Rodgers attempted to file notice of on the Dis- clerk of this Court nor served TexRApp. appeal. ap- It Attorney. trict pears original erroneously thе was sent to 25.2(b)(1). Thus, the District the clerk of this Court. Id. the appeal, with the notice never served copy
Attached to this documеnt is a carbon statement, the docketing “motion” Rodgers with filed the dis- obviously not had appointed has trict testing. clerk to “motion” respond to the opportunity acknowledged clerk of this Court re- by the of the order before the rendition ceipt of the notice of appeal, clerk sent simply majority. This matter Rodgers a copy docketing of blank state- the action that procedural posture to take Rodgers ment form and advised that a majority taking. docketing completed, stаtement must filed, Attorney. and served on the District case to get take to It awhile The also noted in letter Rodg- clerk crim- with a рrocedural posture the proper ers, appeal that his notice of failed to his own inal who is defendant contain proof service District rea- are there for a lawyer, but the rules Attorney. appeal The never notice provide the framework son. The rules by been filed of this Court nor are the operate. which rules Attorney. served on the District expected in which framework allow individual When we operate. letter, response to the clerk’s rules, special privi- avoid the Rodgers explain why did not he could not every would then leges, litigant copy make a carbon the notice of you “If have answered: entitled to ask and upon Attorney. serve District why Boyd Rodgers, special made a rule Rodgers prison did indicаte the unit does not for me?” machine, thus, not allow him to use a he photocopy docketing Rodgers cannot state- I with to work would continue make a ment form order to until and “motion” the notice Attorney. Rodg- the District upon I filed and served. would properly that if him ers we would respond time give Attorney the District form, a blank he would manu- I con- Only then would the “motion.” ally duplicate аnd serve the Be- prepare requested. relief granting sider Attorney. docketing state- the rules ignores cause the the clеrk ment has not been filed grants relief before Attorney. Court nor served the District opportu- had the side has been served and heard, dissent. nity respectfully I to be letter, response Also in his to the clerk’s asked appeal. Al- counsel to assist him this
though in his response service,” just like
“certificate of the certifi-