Willie Lee Ockletree v. State

Case Information

FILED

July 24, 2015

Third Court of Appeals Jeffrey D. Kyle Clerk

WILLISE LEE OCKLETRER, #1906981 ALL.IE, UNIT/TDOJ-CID 2101 F. M. 369 N. IOWA PARK, TEXAS 76367 JULY 13, 2015

HONORABLE JUSTI:ES PRECILING, In The COURT OF APPLAIS For The THIR, SUPREME JUDICIAL JISTRICI OF TEXAS At Austin attn: Jeffrey D. Kyle; Clerk P. O. BO: 12547

AUSTIN, TEXAS 78711

In Re: Appeal O.t. No. 03-14-00046-CR WILLI: LEE OCKLE:TRER -V- THE STATE OF TEXAS APP:ELLANT'S OURSINE, LETTER FORM PLEALING, TO WIT APP:ELLANT'S MOTION TO GUPPEN JULES; APP:ELLANT'S BRIEF ON APP:EAL; ANI MOTION FOR ANY AII ALL AVAILABLE HENEJY, RELlEF RELRESE ANI RE:MONSTRANJE AUTHORIES; BY THIS HONORABLE JOURT OF APP:EAL'S JURIGJICTION ANI AUTHORITY AS AUTHORIES IN ACOURSENCE WITH THE UNITEJ STATES CONDITTUTION ANI THE STATE OF TEXAS COND:T:TUTION ANI THEIR CONFORMING LAVE...

Dear Honorable Justices Presiding in the Court Of Appeals for the Third Supreme Judicial District Of Texas at Austin:

COMES NOW, WILLI: LEE OCKLETREE, #1906981, an O:Fender, who is confined in Texas Department of Criminal Justice- Correctional institutional Division (TDOJ-CD), who is the Appellant in the above styled and numbered cause, who does make and file this APP:EAL.1.1.1 CORREN:E LETTER FORM PLEALINGS, TO WIT APP:ELLANT'S MOTION TO GUPPEN, RULES; APP:ELLANT'S BRIEF ON APP:EAL; ANI MOTION FOR ANY AII ALL AVAILABLE RE:MEJY, REL:REF, REL:RESE, ANI RE:MONSTRAN E AUTHORIES; BY TH:S HONORABLE COURT OF APP:EAL'S JURIGJICTION ANI AUTHORITY AS AUTHORIES IN ACOURJANOE WITH THE UNITEJ STATES COND:T:TUTION ANI THE STATE OF TE:AS COND:T:TUTION ANI THEIR CONFORM NG LAWS and which is declared, stated, verified, acknowledged, confirmed, and pled under the penalty of perjury of the LAWS of the UNITEJ STATES and THE STATE OF TEXAS to be true and correct in accordance with and pursuant to the pro-

visions of 28 U.S. C. sec. 1746 and the Texas Civil Practice and Remedies Code, Sections 132.001-132.003 for which my signature and the date of its execution does confirm the foregoing and pled contents of this pleading to be true and correct as fallows:

JURIS JICTION

The Appellant maintains and avers this Honorable Court of Appeals has jurisdiction and authority in accordance with and pursuant to The Texas Constitution, Article V, Section 6 and the relevant applicable provisions of the Texas Government Code governing the Court of Appeals for the Third Supreme Judicial Jistrict of Texas at Austin. For the Appellant's timely and proper NOTICE OF APPEAL purports to give this Honorable Court of Appeals jurisdiction and authority in this matter.

However, the Appellant would ask that this Honorable Court Of Appeal to take judicial notice of the Reporter's Record Vol. 13, Page 41 at line 10, the Appellant in his "pro se" capacity did orally move the court for a new trial by and through entry on page 41 Lines 10 through 25 as continued on Page 42 Lines 1 through 16. For in the instant case this Honorable COURT OF APPEALS must determine if this cause is properly before the Honorable Court of Appeals where the trial court and appointed court apointed attorney did not confer with the dismissed trial attorney and/or the Appellant to make known if in fact sufficient error of a constitutional dimension and magnitude existed to hold hearing and preserve error for appeal. As the record is devoid of any ruling and determination made by the trial court on the Appellant's oral motion for new trial and no hearing was ever held and conducted.

Still further, where the Appellant is proceeding "Pro Se" after the court appointed attorney on appeal did make an file his brief in accordance and pursuant to the ruling and opinion of the United States Supreme Court in the case of Anders-v California, 386 U.S. 738,87 S. Ct. 1396 (1967) ausing the Appellant to invoke this Honorable Court of Appeals jurisdiction and authority pursuant and in accordance with the ruling and opinion of the United States Supreme Court in the case of Haines-v-Kerner, 404 U.S. 519

(1972). For the APPELLANT declares and pleads that he is proceeding without the advise and/or the assistance of one who has been formally trained in the "art" and "science" of the field of law.

II.

APPELLANT'S MOTION FOR THE SUSPENSION OF THE RULES

COMES NOW, the Appellant, who does move this Honorable Court of Appeals to Suspend he Rules in accordance with and pursuant to to Texas Rules of Appellate Procedure, Rule 2 which expressly and impli itedly authorize this Honorable Court of Appeals to suspend the rules as stated in Rule 2 that reads as follows:

"...On a party's motion or on its own initiative on appellate court may—to expelite a decision or for other good cause—suspend a rule's operation in a particular case and order a different procedure; but the court must not construe this rule to suspend any provis on in the Code of Criminal Procedure or to alter the time for perfecting an appeal in a civil case...."

For the appellant does move also seek to have the relevant and applicable rules over: of pleaings, form of briefs, and the form of motions; as relevant to the requirements for all when being made, filed and pled before this Honorable Court of Appellate as being here nafter PRAYED for.

WHEREFORE, PREMISES CONSILIERS, the Appellant PRAYS that this Honorable Court of Appeals does suspend any and all rules to allow this "Pro Se" Appellant to proceed in the instant cause by and through this APPELLANT'S COMBINEU LETY R FORM PLEADING.

ANU FURTHER, the Appellant Prays that this Honorable Court of Appeals be granted any and all other remedy, redress, relief, and reminstrance as authorized by law and equity.

III.

APPELLANT'S BRIEF ON APPEAL

A.

LIGHTITY OF THE PARTLES

APPELLANT:

WILLIE LEE OCKLITTREE

TDGJ GID $1906981

ALLRED UNIT

2101 F. M. 369 N.

IOWA PARK, TENAS 76367

TRIAL COUNSEL FOR APPELLANT:

MR. JEFFREY D. PARKER

312 E. CENTRAL AVE.

P. Q. BO: 660

BELTON, TEXAS 76513

APPELLATE COUNSEL FOR APPELLANT:

Gary E. Prust LAW OFFICE OF GARY PRUST 1607 Nueces St. &;ustin, TEXAS 76513 TRIAL COUNSEL FOR APPELLER: SHELLY D&WN STRIMPLE STEPHANIE NEWELL 1201 HUEY RD. P. O. BO: 540

BELTON, TEXAS 76513 APPELLATE COUNSEL FOR APPELLER: Bob Odom 1201 Huey Rd. P. O. Box 540

BELTON, TEXAS 76513

IV.

STATEMENT RELARING ORAL ARGUMENT

The Appellant, a "Pro Se" Litigant, who is currently confined in Texas Department of Criminal Justice- Correctional Institutional Division at the Allred Unit, 2101 P. M. 369 N., Iowa Park, Texas 76367. For all current and existing law does not mandate and/or require this Honorable Court of Appeals to issue any writ to bring the Appellant before the Court for argument.

V.

STATEMENT OF THE CASE

Appellant was indicted in two gount indictment alleging the offenses of injury to a disabled person and aggravated assault with a deadly weapon with an enhan ement paragraph invoking Texas Penal Code, Sention 12.42(d) allowing for punishment ramge of twenty-five years to minety-nine years or life imprisonment, if the allegations are found to be true upon a conviction of the primary offense... For the Appellant chose a trial by jury and made and entered his plea of "not guilty" to the allegation of aggravated assault after the State chose to abandon the injury to a disabled person. As the Appellant was found guilty of the primary offense and prior convictions having been found to be true by the jury who imposed punishment at seventy-five years confinement. A verbal Motion For New Trial was made and entered in open court (RR Pages 41, Line 10 through 25; 42, Lines 1 through 16, Volume 13). For the record is absent

of any ruling anc/or hearing on the Appellant's vercal Motion For New Trial. As the Notice of Appeal was maie an filea by the Appellant's court appointed attorney who took no action on the Appellant's verbal MOT ON FO: NE: TRIAL.

VI.

STATEMENT OF PROGRAMAL HISTORY

The Appellant maintains thathehe record shows that an indictment was returned by the Grand Jury of Bell County for the 426th Judicial District Court on or about May 22, 2013 alle3 ng two(2) counts, to wit; Injury To a Disabled Person an: Aggravated Assault w th a Deadly Weapon with ellegetions of prbr convictions being male to invoke punishment pursuant to Texas Penal Code, Section 12.42(d).

It is further shown within the recordo thet the Appellant was init ally represented by Attorney Randall Scott Magee, who appearel in open court on or about July 26th, 2013 to establish in the record that J strict Attorney Shelly Jawn Str mple had male and alvenced a ten (10) year plea bargain offer and which the Appellant had prior to his appearence in open court refused and further refused in the course of the Plea Offer Hearing. Which a subsequent heor ng and appearen e by Attorney Magee was mone on or about August 19, 2013 when he apseare and plei Motion For PR Bond that resultel in aóverse ruling. As Attorney Randall Scott Magee appeareu in open court one more time in the instant cause to advance a MOTION TO WITI JRAI AË GOUSEI that was coocketed and heari on September 24, 2013 when the Appellant did then proceed in the case as his own attorney (Pro Se) with standby appointed coucel, namely: Attorney Jefferey Javiá Parker.

The Appellent acting as his own attorney with stanaby counsel, namely; Attorney Jeffrey Jeviá Parker did participate in hearing held on October 15, 2013 for hearing of Pretrial Motions which the Appellant had filea. For the result of this he ring cause the Honorable Fancy H. Jezek, Juige Presiding in the 426th Judicial District Court to appoint stanaby attorney to proceed as the Appellant's trial attorney; who would proceed as cefense attorney in the trial on merits and all other Pretrial Proceedings helu subsequent to the thè October 15, 2013 proceedings. As the January 3, 2014 Pretrial Motion Proceedings Attorney Jeffrey Javiá Parker placed into record

that the Bell County Jistrict Attorney had advenced a pleabargain offer prev ously dur na July 22, 2013 heeing that the Appellant had then and would iur $n$ ; the pretrial hearing reject. And further, the heer ing would show and document the Appellant's dissatisfaction with his attorney's representation.

The Appellant's trial proceedings began on January 6, 2014 and Attorney Jeffrey Javiu Parker appeared as the Appellant's attorney of re:ord where he waived openin: statements an refused and failed to embrace the "voir dire examination" with active participation of zealous manner. For this is of relevance and import where the victim as alleged in the indictment was of the White lace an the acouceidp pellatt was of the Black Rece. As the lack of active participation compromised preservation of error relevant to the unauthorized, unlawill, and unconstitutu:onal use of the capacity of employment and its authority as an Assistant District Attorney, namely; Honorable SHRILYY S:TRIMPLE, who engage: in a systematic ustom an practice of ex luding eligible jurrors from the panel.

With the jusyhaving been seleated for the Appellant's tr al and hav ng been sworn n the Appellant's trial began an: Count One of the in:lictment was abandoned an proceeded to trial on Count Two that alleged aggravated assault with a deadly weapon where the state auvenced open ng arguement and Appellant's counsel reserve: the right to advan e arguement prior to the Defense presenting evidence after the rest ng of the state. For the state proceeding with presenting ts ase by and through witness test mony an exhib ts be nz offered and entered into evidence purporting to support the proof of the allegations set forth in the indictment. And after the state re:teu there was a hearing held on reoori in absence of the judge regarding the Appellant having been alv'se: not to test fy as the auv ce of his Attorney Jeffrey Jevii Parker was not to testify as he, Attorney Parker stated, "...Well, if there's -if there's any ioubt, I'll tell you right now, unequivocally, clearly without any question, I am telling you that it is my professional auvice you not testify in this case...." For Attorney Parker dii not make or $\%$ ve any statement or arguement and the Appellant on recori waived his right to testify believing the auvice of h.s attorney that the evidence was insufficient to find guilt beyond a reasonable doubt.

The State and Defense both having reateu the jury was renaved

and in recess as the State and the Defense with the Court prepared the charge on "guilt or innocence.

The preparation of the charge was completed where the Court ordered he return of the jury and each jurrar was given a copy to follow along as the charge of the court was aiministere to the jury. For the Defense was allowed to present its closing argument of which Attorney Jeffrey Javid Parker avered that there was evidence that the Appellant had admitted possessing a knife and having thrown it away. Which the Appellant's attorney failed to nform the jury that the Appellant had remained in oustody from March 12, 2013 to the very point and time making any avertmert as having been purportedly made to support the elements of the indi ctment could not and should not be substantiated when his restraint would not allow for him to throw away a knife. As the state did make and give its losing argument of which upon completion the jury went to the jury room for deliberation. The deliberation of the jury resulted in the A mellant he'nt found guilty as charged in the indictment.

Because the A mnellant had chosen the jury to impose sentence, the jury was reai the enhancement as set forth in the State's Notice of EPhifentent setting forth allegations of the A mnellant having been previously convicted to impose punishment pursuant to the T###a Penal Code, Se tion 12.42(d). The Appellant made and entered his plea of "not true" and the State proceeded with presenting evidence to prove the prior convictions. For he Appellant took the stand and was questioned by the State and Defense, as to information relevant to the Apit. n't past. The charge on mish mats

• sea to the jury who retired on returns w th a finding of the Appellant hav ng been previously convicted and a punishment of seventyfive (75) year: was imposed, as a result of proceedings having been held in open Court on January 7 th and 8 th, 2014.

$$\text{VI.}\backslash \text{GROUII,}\mathrm{F}\mathrm{O}\text{REVIEW}\backslash \text{WTH A RGO SINIT'S}$$

I. GROUII, FOR REVI:E: NUEBER OU:E W. TH &; RQUERENT

APPELLANT CONTENJ'S AN: COEPIEINS THAT H:S R. GH: TO REASONABLY EFFECTIVE &;SS:STANGE OF COUNSEL ON THE FIRST EFFEEL HAS BEEN JEIE: IN VIOLATION OF RIGHT: UNIER U. S. CONSTITUTION, SIETH &;KENJMENT.

A RQUFIIENT AII AUIINORITIE:

The Appellant contends and complains that he was not afforded the minimum of reasonable effective assistance of counsel during a critical stage of the criminal process and procedure, to wit; on the first appeal. For it is a matter of the record that Attorney GARY E. Prust, as appointed by the court for purpose of making and filing of a written Motion For New Irial and seeing that the same was docketed for hearing pr or to having ma e and filea Notice Of Appeal whereas the Appellant had made an orel Motion For New T'rial which the trial court did not otherwise make any ruling thereon. As the rulings and decisions of the United States Supreme Court in the case of Strigklan: -v- WASHINGION, 466 U.S. 668 (1984) and those of its genre. As the mere fact that the court appointed attorney did make and f le an appeal brief purportelly in accordance with and pursuant to ANJER: -y- CAIi FORMiA, 386 U.S. 738 (1967).

Acqordingly, if the appointed counsel ha: adhered and conformed to the fundamentals of his a hooling and tra n ng he would have investigated and made, nonn to himself that the trial counsel was of opinion and belief that the eviden e as proffered and entered into the trial records failed to substaniete an. sujort a. Iining of "guilty as cherged in the in:ict...in: in.ich in spite of this beI ef and opion as set forth in the trial re ords at VOLUME 20 , PAGE 57 through 59 as relev at to Attorney Parker ma, ing this a part of the records. Yet, he Attorney Parker u: not make a formal motion to the Court for a directed verdict of acquital explaining his position and preserving error thereon.

Still further, where the re ord at Volume 13, Pa;e 41 and Page 42, the Appellant makes and enters into the record an Oral Motion For New Trial which unier the irsumstances where the Court allowed for the trial attorney to be allowed to withiraw. And because the Appellant for the Brief moment did not and does not have an attorney and his oral motion was even acknowledned y the Court the refusal ani failure of the appo nte: attorney to make and f le a Motion For New trial where substantaial error had aceured during the punishment part of the trial where the records and documents use: ior purpose of enhancement wouls not and does not show the Appellant to have

twice convicted in aczorianoe and pursuant to Texas Penal code, Sestion 12.42(d). For if the State's Attorney and/or the Appellants trial counsel had investigeted they would have found that the Appellant's 1991 purported onyi t on was in fact voideble and unavailable for use as an enhancement where is was void ab tifhtsiseth the state's proof of the Appellant's enhan ementr is both actually and fa tually insufficient. Yet, from the outset then the Appellant made an attempt to bring to the attent on of the Court by and through an inartfully pled Motion To Quash that neither the State's Attorney and/or the Court timely addrecreed the error where any corre tion of the faulty prior allegat one should hae been nade timely and properly before trial. For this wouls have remove, the element of surprise on part of the Appellant's trial ounseel who did not and uoes not know the prior convictions are in fa t all three are voidable and were allowed to be used w thout any objection on his part, the trial attomeys

In onclusion, the Appellant maints as and averc that he was not and has not been afforced the minimum of reasonably effective as sistance of counsel on appual when the appointed appeal attorney refused and fa led to make a reasonable and ailligent investigat on to see if there was either a verbal and/or written Motion For New Tr al that was made at entered into the record that had been timely and properly done within ten days of the entry of the judgment and sentence. $A_n$ this fa $t$ and the failure of the appo nte appeal attomey to brief the fa $t$ that no rul ng had been made deny ng the Motion For New Trial the Anders Br ef as now before the Honorable Court of Appeals sonstitutes ineffe $t$ ve asistan e of ounse1. As the Honorable Court Of Appeal does not have jurisdiction.

2.G OOUN J FOR REVIEN NUHB R TTO WITM ARGUELJET

APPZLLATT CONTENIS AT, COMPLAINS THAT THE EVLJENGE AS U.E. AN REL. ZJ UPON THE SUPPORT HE APPZLLANT'S CONVICT ON FOR AGCGSTETED AS AULT W TH A JEAJLY WEXPON IS ACTUALLY NEUFFGENT JENY NG THE APPZLLANT H S RICHT TO A FAIR AT, INPARTI AL TRIAL UNIER THE U. S. CONDITTUTION, AMENIMENT SIETH.

AROUERIEAS AGE AUYHOR:TES

The Appellant ma atains and contends that the United States Constitution, S xth Amenument manuatas that the evidence in the review of actual insufficiency unier the Unite: State: supreme Court's ruling and opinion in Jackson -v- Virginia, 443 U.S. 307 (1979) requiring "no rational trier of fa:tcould /find/ proof of guilt beyond reasonable doubt." For in the instant case if not for the direct and indirect bias for reason of race and gender, the evidence as hear: and considered merely showed and represented that on the early morning of March 12, 2013 a 911 telephone :all had been made by someone at the address of a resiuence 10 ated on Houston Street, in illeen, Texas. As well as, having shown that Debbie Sweet and the appellant both were at the house.

Still further, the trial on merit found in Volume 9 through 11 constituted an a cecumalation of fa:t: proffered by the state by and through witnesses that had been alled to purportedly show the commise on of Aggravated Assault with a bea:ly weapon as having been alleged in the :ndi:tment. For the dea:ly weapon, to wit; a knife as shown and exhibited; as well as, having been entered into evidence were not shown to have been ever used and/or exhibite by the appellant at any time on the morning of March 12, 2013. As the te:tinomy of the state's witness in hief, the victim, namely; Debbie :weet in. forms that two knives were found a: Police. :a: neither of the two does bebbie bweet icent :y sis appellent as having possessed and used them at the time of the alleged threat and purported deadly weapon possession en: use to subetent ate commission of the offense. As she bebbie Sweet repeatedly gave testimony if true that contradicted the required and needel chowing.

Even further, the utter inability of bäbbie Sweet to be able to identify whi $h$ one of the two 'nives she turned over to the Police was the actual weapon raise: question of doubt. For the inability of the Police to find either of the two knives found ay the victim lebbie Sweet raises a serious question of fact as to was there a nife or knives involved at all? As the shoddy Poli:e work in having failed to have the victim examined by medical personal to remove any doubt that the victim had in fact been subject to an as:ault that gave rise for the Appellent to be jailed on March 12, 2013. Which

further there is no one other than jebbie sweet asoeting that the Appellant had made a threst by stoning "Sitch I'm going to kill you!" As she, jebbie sweet, further during the course of her testimony stated contradiction as to the Appellant's lo ${}^{\text{ation and wherewouve}}$ wien the ututec threst wis made by the Appellant an of which jebbie sweet did not and could not give relevant factual account consistent with the initial stemest made and given to Police Officer who took the written statement ma=ing the same the basis of probable cause for the Appellant's arrest.

In total and conclusion the entire purported supportative testimony by all witnesses proffered by the state gives rise to no more than a small piece of eviden e that does not meet the requirements of Jackson -v- Virginia, 443 U.S. 307 (1979) thereby ieaying the Appellant his r ght to a fair and impartial trial as required by the U. S. Constitution, S. xth Amenament which requires that evidence be sufficient. For the Appellant is entitled to reversal and entry of acquital pursuant to the Burks -v- U.S., 437 U.S. 1 (1978). 3. GROUGE FOR REVIEW NUMBER THREE WITH ARGU.SEENT

APPELLANT CONTENIS AK, COMPLAINS THAT THE EVLIN E AS U.E. AI REL EJ UPON TU SUPPORT THE APPELLANT'S CONVIGTION FOR &;GGR&;VATE. ASCAult W TH A JEAJLY WEAPON IS FACTUALLY INSUFFI ENT DENYING THE APPELLANT TO HIS RIGHT TU A FA A AK, IMPA.ITIAL TR AL UN, R THE U. S. CONDITUTION, SIDTH &;KEN, MENT.

ARGU.E. S. T A. J. AUXHORIT. ES

The Appellant without reiterating of subject matter of the previous Ground For Review, the Appellant does now suvence and plead his fa tual suffiendy complaint relying on the ruling of the Texas Court of Criminal Appeals which the Court's rul in, and opinion in Clewis -v- tate, 922 SW2d 126 (1996 Tx. Ct. Cr. App.) is relevant and applicable in the instant ase where the factual suffienoy does not warrant and support a find ag as returned by the jury where the evidence does not connect the Appellant to the possession and use of a knife and/or un ves proffered an enterel into evidence by the tate as having been found and turned in to the Police by the victim and State's hief witness whose factual account does not fully and accurately support the elleget ons an, fináings made by the jury.

A o, orlingly, where jebb e sweet's testimonial account repeatedly

contralints and fe t to nport and substantiate the allegations made in the indictment. For the Texas Court of Criminal Appeals hes ruled and determined that factual insufficiency violates the U.S. Constitution, Amendment Six. Clewis -v- State, 922 Sw2d 126 (1996 Tx. Ct. Cr. App.)

Because the trial on merits as found in Volumes 9, 10, and 11 does not fa tually support a finding of "Guilty as Charged in the Indictment" the Appellant see ${}_t$ this Honorable ourt of Appeals to reverse and acquit.

4. GROUY FOR REV EW NUMBER FOUR WITH AROUSEENT APPELLANT CONTENJE AN COMPLAIN: THAT THE STATE COMMITTEE PREJUJEIAL AND HARMFUL ERROR WHEN THE NOTICE FOR ENHANCE MENT DI FAIL TO G VE THE APPELLANT NOTI E OF WHAT HE WAS TO JEENN JURING THE FUNISHMENT PHASE OF THE TRIAL.

ARGUENENT AN AUYHORITIES

The Appellant does contend and complain that the State's NOTICE OF INTENT TO SEEK ENHANCEMENT FUNISHMENT does fail to give the Appellant proper and t mely notice. For the entire Notice as having been read by State's Attorney Strimple was read into the record and to the jury and Court. (See: Volume 12, Pages 6, Lines 21-25; Page 7, Lines 1-25; Page 8, I nes 1-11) For the subject matter and ontent will tend to show the complaint as having been made by the Appellant in his NOTION TO QUASH THE INDICTMENT was honored by purportedly making needed correction to substance of the Enhancement Paragraphs that had alleged wrong information regarding purported prior convictions. As the Noti e as read and given into record to the Jury and Cour alleges that the Appellant on trial for the Offense of theft when in fact the Appellant had been tried and convicted of Aggravated Assault with a deadly Weapon, to wit; a knife.

Because this allegation and reading by the State creates a fatal variance that subjects the Appellent to prejudice and harm then the Court's Jury Charge On Punishment as having been read and given to the jury shown in Volume 13, PAGE 5, LI NES 22-25; Page 6, L'NES 1-25; Pages 7-13, LI NES 1-25; Page 14, Lines 1-5 set forth the Charge which does not track the reading of the State's Notice.

Accordingly, the Appellant is of bel ef that the State's Attorney has violated the Appellant's rights as defined by the U. S. Conat tution, Amendment Five expressly mendating that the Appellat, a person, should not be held to answer fof a apitol, or otherwise infamous crime, unless upon presentment or indictment of a Grand Juy. For the State's Attorney having abandoned the allegation stated in the indictment and proceeded on the Notice that now fails to track the jury charge which the Appellant contends and maintains that the rul ng and op n on of the United States Supreme Jourt in the case of WOLFF -v-McDONNELL, 418 U.S. 539 (1974) gives forth relevant and applicable diction to support the Appellant's contention and complaint of violation of his rights by the acts, a tions, omissions, and otherwise condu t of the State's Attorney.

The Appellant seeks that this Comt grant and order the Appellant's enhan emen to be mull and void w thout any effect with remandment for imposit on of new punishment within the range of whet the offense mandates. 5. GROUN: FOR REVIEV NUMBER FIVE W:TH ARGUEMENY

APPELLANT CONTENUS AN: COMELAINS THAT THE STATE'S ATTORNEY FA LE: TO PROFERLY PROVE THE #PPELLANT'S PRIOR CONVICTIONS FOR PURFOSF OF ENHANCENENT.

ANGUEMENT AN: AUTHORITIES

The Appellant contends and complains that the State's Attorney in the course of purporting to profér evidence and proof of the Appellant's pr or convict ons for purpose of enhancement the records and documents as proffered and used does fail to affirmatively show proper certification as required by Langston -v- state, 776 Sw2d 586, 587 (Tx. Gr. App. 1989) and Banks -v- State, 158 Sw3d 649, 652 (Tx. App-Houston /14thWist./ 2005).

For this reason the Appellant seeks the enhancement to be ruled mull and void andorier a reversall and remand for purpose of sentening. 6. GROU:D FOR REVI EW NUMBER SIX W TH ARGUEMENT

APPELLANT CONTENUS AN: COMELALNS THAT THE EVLJENGE ON PROOF OF ENHANCENENT IS INGUFFICENT AS WILRE THE JULG EMESTS AN: SENTENCES ARE VOID.

ARGUEMEST AN AUTHORITIES

The Appellant contends and complains that the eviden e used and relied upon by the state's Attorney is legally insuffi ent to support imposition of enhancement as allend in the Notice. For the State's Attorney's use of multiple means to otherwise show and support the commission and conviction of prior convictions where the jdgements and senten es upon their face show and support the judgements, sentences, and convictions to be null and void. As the rul ng of the $T_s$ ras Court of Grim nal Appeals in the case of FLOWERS -Y- STATE, 220 Sw3d 919, 921 (Tx. Gr. Bpp. 2007) identifies numerous ways to prove a prior conviction of which in this sase a combination of them all was used.

However, the Appellant is of the position where the priors are void upon theeir face the proof must not be sustained. For not even the Appellant's own testimony will support any enhancement when the prior convictions are : ontrary and in violation of the United States Constitution, S xth Amendment.

And for this reason the Appellent request reversal and remand for resenten ing in as oráance with the law.

7. GROUND FOR REVIEW NUMBER SEVEN WITH ARGUEMENT APPELLANT CONTENDS AN: COMPLAIN: THAT HIS TRIAL ATTORNEY WAS INEFPECTIVE IN A GRITICAL PORTION OF THE APPELLANT'S GRIMINAL TRIAL, TO WIT; VOIR JIRE.

ARGUEMENT AN: AUTHORITIES

The Appellant maintains and avers that he was not afforded the minimum og reasonable effective assistang of counsel by his trial counsel who refused and falled to partiçipate in an active zealous manner during voir dire. For the Appellant, a Black Defendant, whose victim was a White $F_{\text{omale}}$ and this fact alone should have alerted h m that his participation would be required and needed to comply with the mander of he U.S. Supreme Court in the case of Strickland -Y- Washington, 466 U.S. 668 (1984).

Because the Appellant's trial counsel did refuse and fail to partic pate in the voir di re exam nat on the Appellant wad prejudied when memers of he juzy whose prejudices and bias for reason of race and gender were not dis overed and effectively denied the Appellant

a fair and impartial trial. Accordingly, the Appellant seeks to have his case reversed and remanded for a ne trial where the trial counsel's refusal to render the m nimum of reasonable effective ass stange of counsel inflicted prejudice and harm in his trial attributing and contributing to the Appellant's judgement and conviction.

PRAYER

WHEREFORE, PREMISES OF THIS LETTER FORH BRIER HAVING COUR RESULAR before this HONORABLE COURT OF APPEALS, the Appellant does PRAY that this COURT GRANT the Relief as sought and request for each Ground For Review as the Appellant may be entitled.

Ad further, the Appellant does PRAY that this Honorable Court Of Appeals does grant and OR.ER any and all otherrelief that the Court is authorized under both LAW and EQUITY, as the Appellant does hereinafter affix his s gnature here nafter on this date of July 13, 2015 declaring, confirming, verify ing, and pleading under the penalty of perjury this Brief is true and correct.

MOTION FOR ANY AN: ALL AVAILABLE HOTELIH, HELIEF, AND REMOMPHAN IN AUTHORIESO BY TH. O HONORABLE COURT OF APPEALS JUNIQUOT ON AN: AUDOR TY AC AUTHORIESO IN SU. URUANOE WITH THE UNITED STATES CONSTITUTION AN: THE EXAC CONSTITUT ON AN: THEIR CONFORMING LAWO Appealts to otherwis Appellants which are mosed the Hogoralle remedy, relief, redress an remonstrance to whi h this Appellant may be entitled to under law and equity that may e found in the records of this cause.

HERELLO, PREMISES CONSIGNER, Appellant preys for any and all remedy, redress, relief, an cremonstren e that may be authorized by law and equity.

CERT FICATE OF SERVICE

I, WILLIE LEE OCKLETRER, #1906981, the Appellant in the foregoing LETT &; YORM PLEADLIG, who ioes deolare, state, verify, certify, confirm and plead thet 1 have served a true and correct copy of this LETTER FORM PLEA. 10 by placing the same in a postae prepaid envelope and deposit in the same in allred Unit Mail Box to be subsequently picked up by Allred Unit Mail Room Personel for logging in the outgo ng legal mail and to be subsequently deposited in the U. S. Postal service for subsequent delivery as hereinafter set forth, to wit:

MR. GARY E. PRIDT LAW OFF E OF GARY E. PRUST 1607 NUBCES STREET AUST N, TEXAC 78701 MR. BOB D. OJOM, A. SISTANT JSTRICT ETHORNEY P. O. BO. 540 BELTON, TEXAS 76513

This be ng a true and correct service which I deolere, sonfirm, state, verify, sertify, and plead under the penalty of perjury of the laws of the United States and the state of Texas pursuant to the provis ons of 28 U.S. G. sec. 1746 and Tx. C'v. Prac. &; Rem. Code, Sect on 132.001-132.003 by here nafter affix ag my s gnature on this date of July 13, 2015 confirming th s to be a true and correct act of service.

Case Details

Case Name: Willie Lee Ockletree v. State

Court Name: Court of Appeals of Texas

Date Published: Jul 24, 2015

Docket Number: 03-14-00046-CR

Court Abbreviation: Tex. App.