Case Information
*1 NO. D3-15-D0549-CR
IN THE COURT OF APPEALS FOR THE THIRD UUDICIAL DISTRICT OF TEXAS AT MUSTIN, TEXAS
RONNY GENE SMITH (PRO SE) Appellant V.
THE STATE OF TEXAS, Appellee
APPEALED FROM CAUSE NUMBER 67, 764 IN THE HOLTH DISTRICT COURT OF BELL COUNTY, TEXAS
APPELLANTS BRIEF
-DYal Argument Requested-
Mr. RONNY GENE SMITH TWO of 1792493 Wayne Scott Unit B-398 6999 Retrieve Rd., Kingleton, TX., TT515
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TABLE OF CONTENTS
Table of contents ..... 2 Identification of the parties ..... 3 statement of durisdiction ..... 4 List of Puthonities ..... 5 Summary of the argument ..... 6,7 statement of the case ..... 9 Appellants Points of Error ..... 9
- The trial judge erred in failing to grant Appellants mocton for denying independent test-conviction DNA testing(filed 9/93/15)., and Pro se Notice of Appal (filed 8/11/15).
- The trial count's failure to allow defendant to conduct pretrial discecg and inspection of certain documents, certain examination and test reports, and the content and basis of expert testimony upon which the government intended to roly, prior to trials as a Pro se Defendant. conclusion
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IDENTIFICATION OF THE PARTIES + COUNSET
Pursuant to Tex.R.AP, 38 (0)(1)(A), a complete list of the names of all Interested parties are provided below:
Appellant Appellants Trial Attorneys
RONNY GENE SMITH Michael White 100 Kasberg Dr. Suite A Temple, Texas 76509.
Anthony Smith 18 South Main street suite 814 Temple, Texas 76501 Apeellants Counsel on Appeal . . . . . . . . .E. Wayne Bachus 341 N. Main street Temple, Texas 76501
State's Trial Attomey
Sheila Strimpke Stephanie Hewhel Assit.D.A of Bell, co., 1801 Huey Road, suite 8100 Belton, Texas 76513
State's Attomey on Appeal
Bish. D. Adom Assit. Dist., Attomey No. Box 540, Belton, x., 7653
Horn. Farney H. Jezek
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STATEMENT OF JURISDICTION
The Eount of Repetits has appellate Jurisdiction in this Ease pursuant to Pritide 4.03 of the Texas Eode of Erimipal Apeadure.
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LIST OF AUTHORITIES
CASES
Afgersinger V. Hanlin, 407 U.S. 25 (1976) ..... 7 Brady V. Maryland (1963) 373 U.S. 83 2d 205, 83 3dt.1194 ..... 73,19 cates V. state, 72.5 w. 2d 68, 69 (Tev.Ap. 2004) ..... 16 Dubrinet V. state, 7175 w. 2d 80, 83 (Tev.Cr.Ap.1986) ..... 46 Hesselbstz V. state, 905 w. 2d 500 (Tev.Cr.Ap.1985) ..... 16 Hermande V. state, 7365 w. 2d 53,55 (Tev.Crim.Ap.1986) ..... 11 Jarecka, 9375 w. 2d at 468 ..... 16 Mallett V. state, 655 w. 2d 59,60 (Tev.Crim.Ap. 2004) ..... 8 Schoenfeld V. Washington, 466 U.S. 618,625 (1994) ..... 714 United States V. (tronic, 466 U.S. 618,629-640 (1994) ..... 16 STATUTES TEX. Penal Code 29.011 ..... 16 TEX. Code Crim. Prof. art. 29.03 ..... 16 TEX. Code Crim. Prof. art. 29.08 ..... 16 U.S. Const. Amend. VI ..... 16,19 TeXos Const. Int. I 910 ..... 3,11,16
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The united states supreme court has made it clear-law that, with limited exceptions, a person accused of a federal or state crime has the right under the sixth amendment to the united states constitution to have counsel appointed if retained counsel cannot be obtained. Amersinger V. Hamlin, 407 U.S. 25 (1978). And the sixth amendment's right to counsel is not satisfied by the mere physical presence of an attorney with the defendant during critical phases of the criminal proceeding. Gervistand V. Washington, 466 U.S. 688, 685 (1980). Rather, a person accused of a crime has the right to effective assistance of counsel.
Appellants trial counsels did not provide to him the sort of effective assistance required by the sixth amendment or its Texas concilary, Texas Const. Art. 18-10 There was a direct denial of effective assistance prior to trial, where counsel addressed the trial judge directly that he would not participate in his defense. Plain error, where court fail to meet its obligations under the constitutional and fundamental laws of appellants rights, plain error because defendant suffered prejudice at trial, under the sixth amendment at a critical phase of the criminal proceeding, and suffered due process clause of the fifth and fourteenth Amendment to the United States Constitution, Tex. Const. Art. 18 9-10.
*7 Furthermore, the failure of counsel at trial to file a motion, a timely motion for production of independent testing of Toller and appellant's DNA was plain error, because it prejudiced appellant. Had the bureal swabs been independently tested, it would have been found that there was a mistake with the chain of custody which could have led to the Appellants freedom. It is plain error when the government fails to disclose its constitutional duties, of all biological material that is in possession of the estate... materiality is defined in terms of suppressed evidence considered collectively, not item by item. see, Brady V. Maryland (1965) 373 U.S. 83,10 LEd 3d 315,83 Sdt 1194.
Appellants, Motion is based on Due process violations on all of the biological material evidence that was withheld by the seade and that is in possession of the seade that his trial counsels fail to produce to the defense and to the jump. The denial of effective assistance of counsel, to not participate in his defense, and the untimely motion for discovery seeking the prosecutions disclosure of exculpatory evidence and misleaping evidence, the errors were so serious it deprived appellant of a fair trial, a trial the prosecution claim the results is reliable (diting stricturand, 466 U.S. at 687); Mallett V. seade, 65 S.w. 3d 59,62 (Text.cnm. App. 3000) explaining that a lawyer's deficient performance must undercut the "proper functioning of the adversarial process" such that the result of the trial cannot be reliable).
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STATEMENT OF THE CASE
This is an appeal from a trial in the 246 district court, Bell County, Texas, the Honorable Faney H. Jezek, presiding, cause Number 67,744. The sette instibuted proceedings against the Appellant, Rovly GENE SMITH, for the felony offense of sexual assault. Texas Penal code 229.01 . Smith was found guilty by the jury. Smith elected to have the jury assess purisument and was sentenced to 60 years in TDCJ. No fine was imposed.
On August 1474, 3015, a Pro se Motice of Appell was filed on Smiths behalf. states Reply to Defendant's Motion Denying subsequent Motion for Post-conviction DNA Testing(filed 7/33/15). Pro se Motice for Appointment of counsel (filed 4/35/15) No Repy.
APPELLANTA POINTS OF ERROR
Point of Error 1. The trial judge emed in failing to grant Appellants Motion for denying independent Postconviction DNA Testing(filed ). 3. The trial court's failure to allow defendant to conduct pretrial diseaivy and inspection of certain documents, certain examination and test reports, and the content and bases of expert testimony upon which the government intended to rely prior to trial as a Pro se Defendant
*9
PONT OF ERROR ONE (RESTATED)
The trial sludge erred in Failing to grant Appellants Motion for independent Post-Emiliction DNA testing.
AReUMENTS AND AUTHORITIES IN SUPPORT OF
APPALLANT'S POINT OF ERROR ONE
A. standard of Reqieo.
In the states Reply, in state Motion to Deny Defendant's (Pro se) subsequent motion for Post-Emiliction DNA testing, that upon it's review that it advances no new grounds for DNA testing. And the state: submits that the primary purpose of the defendant's second motion appears to be challenging the effectiveness of his trial bauvel, and the character of the evidence introduced at trial.
The states reply is without standard, Appellants proposed amended petition to his "Motion Requesting Forense (DNA) testing and motion for Appointment of bauvel is on its face. The pretrial proceedings that took place prior to the sent of trial; affected" the trial as a whole. The state has acknowledged and made known to the trial court, and also resegriable that the appellants claim of ineffective assistance of bauvel, and the direct denial of bauvel, to be real and true, because the prosecutions team and the presuling sludge witnessed the performance of appellants defense team, during his pretrial Motion-May 33,2011. Appellant as the-Pro se Defendant in the case-at-hand has the burden of proving to this court, his claim of ineffective assistance of bauvel within his "Motion requesting independent "DNA" testing, and the decisions in expressing of reasonable judgment. Id. at 680, 104 s.ct. at 3066.
*10 As a PBO SE, Defendant, I must review my claim of ineffective assistance of counsel, because it produce an effort of not only personal concern, but matters of public interest within the court system. See
*11
Furthermore, the Motion for a new DNA test and his Motion to appoint counsel was, Due to concerns about fundamenta, fames he did not relieve in his trialleart. The reart fail to examine whether couns inefieftive assistance "depriefts the defendant of a substantive or procedural right to which the new entitles him. Rejudicial, because the signiffcant of a direct denial of assistance of counsel caused defective performane signiffent to render defendants trial fundamperatly unfair, the denial was before a juay trial. The trial judge ignored or chose to refrain from notieing or recognizing, the violation of the sixth Amendment guamante at pretrial. If the sixth amendment violation "pervaded the entire proceeding." hamles error analysis is inappleade and the violation is enolegh to exorturn a conviction regardless of the severity of the results. see Sattenwhite v. Texas, 486 U.S. 249,256 (1988). Hamles error analysis is also inappleade if appinted tennel violate a seatratery nige. See U.S. v. Tasle 110,165 F3d 319,244 (3d cir. 1992). (hamles error analysis inappleade because denial of defendants statutory right to the effective assistane of counsel, presumed prejudice to defendant).
B. Argument:
The issuer of the defendants trial counsels representations was relevant to the ( 700 se) defendants motion requesting the discovery seeking the prosecutions disclosure of exaupatory evidence and mitigating evidence trial counsels fail to examine
*12 prior to trial. Appellant's DNA was offered prior to his arrest or charge on seplember 3,2010; and had no idea why he was being detained are questioned. On September 7,2010, the court appointed, scott H.Williams as counsel. Counsel was informed that he had volunteeredly given a sample of his "DNA" to the rempe police prior to arrest and charge and was waiting for the results of forerone puni ctating. Appellant, never received these results of the DNA testing he volunteered. Appellant, was charged with robbery and indieted on December 1, 3010. The case-at-hand "cause No. 67,764" is the companion case, which the prosecution pursued, while the original case (cause No. 67,322) was sent pending.
These was no conformation made by defense counsel for the original case, that the "DNA" had been tested or the results confirmed. The defense was impiated when prosecution pursued the companion case of conviction. This prevented trial preperations for the original charge. Additionally, after the prosecution occurred counsel for the defense of the superseding charge (cause No. 67,742) Trial Councils failure to make timely motion of deeuving and inspection, and the courts denial of motion for continuance, cause appellant the ability to prepare a defense.(R.R. Vol. 3, 19-21). The "prefrial motions" proceeding deprived defendant of right to effective assistance of counsel prior to trial an created presumption of prejudice, by denying discovery, and counsel assistance, with "direct evidence."
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POINT OF ERROR NUMBER TWO
The trial courts follow to allow"PRoSE" Defendant to conduct petrial discovery and inspection of certain documents, certain examination and test reports, and the content and bases of expert testimony upon which the government intended to rely prior to trial.
ARGUMENTS AND AUTHORITIES IN SUPPORT OF
PAPPELLANTS POINT OF ERROR NUNBER TWO
Upon filling the Subsequent motion for Post-considertion DNH testing, the "PRo 8E" defendant was not challenging the effectiveness of his trial counsel, but, was showing the court, that there were mictipating circumstances which lead appellant to file his PRoSE mentions. to raise defense counsels ineffectivates of assistance of counsel prior to trial and during trial is appropriate reporting because in fact finding it praxis improper performance of nondisclosure of known material evidence, record show it affirmed the denial of the discovery. Regardless of appellants request through his motion, favorable evidence is material, and conscitutional error results from its suppression by the government. Brady V. Maryland (No3) 373 U.S. 83, 10 J.Ed 2d 815,83 &; 86 c. 1994. the United State supreme court has held that the prosecution has a due process obligation under Federal Constitution to disclese material evidence favorable to a criminal defendant, the disclence was denied prior to trial, which was critical stage for the prosecution. The appellant explained to the court that the documents provided to "counsel for the defense were DNH report summaries that did not disclise the chain of custody
*14 for the buccal swabs provided to the wab his for DHA testing, they did not disclose the chain of custody for the buccal swabs collected by the Temple police Department, they did not show any reports for Monkey Hearing who is listed as the officer who delwees buccal swabs in question to the who his for DHA testing, they did not show an explanation for the submission of buccal swabs for Johnny Ross (Taybo) in mid-Moember 10010 to the who DHA his, although the collection of buccal swabs from both individuals were collected on September 18 1010, and they did not provide an explanation for why the sample from (Taybo), a suspect at one point in this case was not tested (R.R. Vol.3, 7-1). Finally, appoilant in formed the court that his investigation and preparation for trial was not complete and that he was not ready for trial(R.R.Vol.3). 7 H The Court heard this motion prior to trial. Apoilant filed a second motion for continuance on the same day, May 19, 2011(R.R. Vol.3, 5). Due to the short amount of time Mr. Anthony Smith was able to spend on the case, approximately seven to eight hours, he informed the court that he did not have enough information, research and investigation to render effective assistance of counsel(R.R. Vol.3,6,7 and 11). The trial court judge denied the motions for continuance, Mr. Anthony Smith mated to withdraw from the case because he believed he would not be able to render effective repretential. Id. The trial court judge further denied Mr. Anthony Smith's request to withdraw(R.R. Vol.3, 8).
*15 Tex. 20de erim. Prce. art. 39.03 provides that a criminal trial may be continued on the defendant's written motion upon demonstration of sufficient cause which must appear in the motion. see, cases v. seate, 78 8w. 3d 881, 891 (Tex.APp. Tyler 3001). The written motion must be sworn to by a person with personal knowledge of the facts. Tex. 8de erim. Prce. art. 39.08. The denial of a motion for continuance is generally reviewed for an "abuse of discretion" (lanecta V. state, 937 s.w. 3d 456, 468 (Tex.CF. App1996). Heiselbetz V. state, 90 s.w. 3d 500 (Tex. Cr. App. 1995), 2005 V. state, 844 s.w. 3d 697, 795 (Tex. Cr. App. 1995). It is the [PRO SE Defendant]s burden to demonstrate prejudice from the denial of a motion for continuance. Janecta, 937 s.w. 3d at 418. See, Duhamel V. state, 717 s.w. 3d 85, 83 (Tex. Cr. App. 1996). Howcuer, the denial of an adequate opportunity to prepare for trial has constitutional ramiations under the sixth and fourteenth rmentments to the unidad states conciatation. Unied States V. Gpnie, 4th U.S. 618 (1996). The Court stated: "circumstances... may be present... when although counsel is available to assist the assused during trial, the likelihood that any lawyer, even a fully competent ores could provide effective assistance is so small that a presenption of prejudice is appropriate without inquing into the actual conduct of the trial. Ctrnie, 466 uS. at 659-660. PRo SE Defendant file his motion for first-Covidation DHA testing in good faith and to prove his actual innocente through expert testimony, in his arguments before the trial judge prior to trial appellant demonstrated that his attorneys were not yet prepared for trial.
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The failure to allow "do se defendant to conduct discovery and inspection of certain abeunents, examination of certain test reports deprived him of further discovery and present evidence relevant to his chain of custody issues with the DVA evidence, which was the central focus of the prosecution's case. This, the denial of apptimes motion for contemnane did and there violate his sixth mamentment right to the effective assistance of counsel, and his fourteenth, Amendment right to Dve process of discovery which resulted in malidass prosecution, prejudice because the action instituted with intention of injuring the defense, and without postbale cause, which resulted in an invalid trial, cause by fundamental error.
CONCLUSION
WHEREEDKE, PREMISES CONSIDERED, Appellant respectfully respect that this Honorable court revies the transcript of the trial in this case, and after such revies, sustain point of error number one and reverse the denial of his motion and sustine point of error number two and reverse for oral review. In the alternative, Appellant respectfully respect that the court recond to the trial court for a new trial by Jurg. PIO se-Defendant respectfully Rays; that his motion for first conviction DVA testing be sustin for oral argument.
Respectfully submitted, (Pio se Defendant RongachSsinect Ranny Bene Smith "Pioyns
*17 RONNY GENE SMITH CAUSE NO. 67,764 IN THE DISTRICT LEAVY V.
426 JUDICIAL DISTRICT
STATE OF TEXAS
BELL COUNTY, TEXAS
MOTION FOR APPOINTMENT OF COUNSEL
AUSWANT to 28 U.S.C. § 1915 (c) (c) Appliant Moves for an Order to appointment in this case. In support of this MOTION, Appliant States:
I.
Appliant's imprisonment will greatly limit his ability to litigate. The issues involved in this case are very complex and will require significant research and investigation. Appliant has limited access to the Law Library and limited knowledge of the Law.
II.
Appliant is unable to afford counsel. He has requested leave to proceed in forma pauperis.
III.
A trial in this case will likely involve conflicting testimony and counsel would better enable applicant to present evidence and cross examine witnesses.
WHEREFORE, Appliant request and act the Court to EANIT his motion in afinting an Attorney in this case.
Respectfully submitted, Rony Gene Smith 17,17943
*18 RONNY GENE SMITH CAUSE NUMBER 07704 IN THE DETRET COURT V $ $ $ $ $ $ $
436 JUDICIAL DISTRICT $ Bell County, Texas
AFFIDAVIT IN SUPPORT OF APPLICANTS MOTION REQUESTINE APPOINTMENT OF COUNSEL
I RONNY GENE SMITH am the Appliant in the above entitled case. In support of his motion Requesting appointment of counsel. I declare that the statements which I have made below are true and correct under penalty of perjury ( 58 U.S.C. ). I.
On this particular case, applicant put in a MOTION requesting this District court to appoint counsel to assist him in the above and numbered cause. There are exceptional circumstance warranting the appointment of counsel. Applicant has no experience in case law, this includes cross examining witnesses and no investigation skills. II.
Applicant has no skill in the science of law, and unfamiliar with the rules of evidence, and left without the aide of counsel, if put on trial without having no skill on incompetent evidence, or evidence irrelevant to the issue of the above cause or other wise inadmissible, applicant lack both the skill and knowledge adequately to prepare his defense, he requires the guiding hand of counsel at every hand and step in the proceedings, this "DNA" case.
*19 III. OF all the rights that a person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have, and keep in mind, apptiant is going against an "attomay at law'.
Thus, the core purpose of the counsel guarantee was to assure "Assistance" at trial, when the accused was confronted with both the intentiancies of the law and the adweacy of the public prosecutor. Their presence is essential because they are the means through which the other rights of the person on trial are secured. without counsel the right to a trial itself would be "of little avail," as this court has recognized repeatedly.
WHEEFFRE, FROBent request that this Honorable court, doesn't his station-for APRINTMENT OF CUNISEL, so, that apptiant may sound equally betore the law.
Respectfully submitted, Rony EENE SAINT * 1220198 ADEMINT
*20