Case Information

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77,210-03

Feb. 9, 2015

Abel Acosta, Clerk

Wayne Scott Unit
(1) 1418 Rietcleve Rd.
Ongle ton, Texas
17515

RECEIVED IN COURT OF CRIMINAL APPEALS FES 172015 Abel Acosta, Clerk

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GROUNE X ActualInnocences

FACTS SUPPORTING GROUNE

The applicant contends that after being taken before the 7th Judical District Court of Smith County, Texas on Feb. 14th 20ll where Judge Kerry Russell heard testimony concerning the revocation of applicants 10 year community supervision probation and the Jan 3 th 20ll charge of Tess of Marij more than 102 less than 51 ms (offense 35620010) Cause $007-1820-03$ where Judge Kerry Russell sentenced applicant to 12 years confinement in the Texas Department of Criminal Justice Institutional Division he cannot also beguilty of the charges

*3 and insist he is innocent of the charges leveled against him on March 1th 2011a hearing in the 7th Judicial District Court of Smith County. Texas where Judge Henry Russell again heard testimony accepted a plea for the San 15th 2011 charge of Poss of Marig more than 4025 less than 5188 (offense 25620010) Cause* CO70219-11 then sentenced applicant to 15 months State Tail. applicant will also show he is aetai actually innocent of the Poss of Marig. Charge by default at the Feb 14th, 2011 hearing.

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Cause No. 007-1820-03 "Evidentary Hearing Requested"

Expate

In the the Instit In the Instit Instit Stuart Tumbee) District Court of Instit County, Texas applicant, Pro Se ) Smith County, Texas

Memorandum of Law
In Support of
Writ of Habeas Corpus
Tex. Code Crim Froc 11:07

To The Judge of said Court: Comes Maw, Keith Stuart Tumbee, Applicant Pro Se in the above entitled and numbered cause and submits this his "Memorandum of Law" in support of. Around 10 a supplement filing to his application for Writ of Habeas Corpus present to the Tex. Code of Crim. Froc. art. 11:07 and will respectfully show the following:

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Actual Innocences

This applicant need only to go as far as the Fifth Amendment of the United States Constitution and the Fourteenth Amendment of the Texas Constitution where it clearly protects an accused against a second prosecution for the same offense for which he has been previously acquitted or previously convicted and from being punished twice for the same offense. See Brown V. Ohio 432 U.S. No. 164-65, 97 S. (t 2221, 2224-25, 53 L. Ed. Ad 187 (1977)

This applicant also contends that after being convicted of loss of Marij more than 4075 less than 5 18s (offense 35020010) in cause number 001-1820-03 in the 7th Judical Court of Smith County, Texas on Feb 14th, 2011 that the trial court, as a fact finder could not and should not have found applicant guilty of loss of Marij more than 4075 less than 5 18s (offense 35020010) in Cause number 007-0219-11 by the same Judee Hon. Kern Russell in the 7th Judical Court of Smith County, Texas on March 11, 2011.

*6 In Qekins y State 2013 Tex App kevis 12144. Because a ppe llant stood triad for all three offenses petore the same Judge, the trial court knew or should have known of the potential double ieopardy issucs, resulting in no legitimate State Intrees in enforcing the usual rules of procedal default. Gallcgos y State 340 S.W. 3d, 197 301 n. 2 (Tex App. San Antonio 2011) Honevcutt y State 32 S.W. 3d 545,541 Tex App. San Antonio 2002)

Applicant has shown that his conviction and sentencing of for the second offense of Fiss of Mariy more than 4025 less than SIBS (offense 35120010) under cause number 007-0219-11 Violates the Double Jeopardy Clouse of the Fifth Amendment and the Five Process Clause of the Fourteenth Amendment. Applicant has also accompanied his claim with a primatacie Shaving of actual innocence of the second Fiss of Mariy charge (offense 35120010) on March 1th 2011 and has hereby Satisfied his burden under Tex Code Cnm Proc. (nn ant 11.01 $4(a)(a) he pray.

*7 In closing this applicant will point out that by the States own hand they married two course numbers $007-1820-03$ from the 3rd day of January 9polo (Oppoyated (Issault) and 007-0319-11 from the 13th day of January 2011 (Loss of Marly) through a hearing in the 7th Judical Court District Court of Smith County, Texas, (See pages 80, 81, 82, of this Writ). Judge Kerry Russell appointed Austin Keefe Jackson on January 4, 2011 to counsel this applicant for accuse number 007-1820-03. No applicant applied will direct you to the March 2nd, 2011 Order Appointing Attorney, where Judge Kerry Russell appointed Austin Keefe Jackson to a pending loss of Marly, more than 4025 less than 3,585 (offense 25220010) that stemmed from a January 13th, 2011 arrest. So it is clear on the face of the States and documents that this applicant did not have counsel for the loss of Marly Charge at the February 4th, 2011, hearing and is actually innocent by default.

See Exhibit Five of Writ - Order Appointing Counsel

*8 Finally, the applicant has a 6th Amendment right to the assistance of counsel. Black, V. Romano 4 II C 190 I US, 601, 85 L. Ed, 6010 105 S. Ct. 2254 (1985). And for the State to neglect, to appoint counsel for the Fiss of Marij Charge is a violation of his constitutional rights under the Fifth and Sixth Amendments see Gideon V. Wainwright 312 US. 339, 9 L. Ed. 2d 199, 83 S.Ct. 192 (1963). Whatever else it may mean, the right to counsel granted by the constitution of the United States promises that a person is entitled to help from a lawyer at or after the time that Iudial Proceedings have been initiated against him. Bcewley V. Williams 430 U.S. 281, 289, 41 S.Ct. 1232, 1234, 51 L. Ed. 2d 424 (1971).

This applicant feels that he has met his burdens and request relief be granted to him.

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State bar number, if applicable:

Fax:

INMATE'S DECLARATION

being presently incarcerated in $\overline{I,D,C,J},D$ , declare under penalty of perjury that, according to my belief, the facts stated in the above application are true and correct.