Case Information

*1 IN THE COURT OF AMEALS AUSTIN TEYAS EX PARTE ERIC MAYERPAY RECEIVED IN COURT OF CRIMINAL APPEALS

JAN 142015 TRAVER SE GRIEF, AGAENST STATES RESPONSE

Abel Acosta, Clerk

Now comes ERIC MABERRY, (APPLICANIT) IN THE ABOUE HUMBEREO AND STYLEO CASE, APPIICANT NON PRESENTES THIS TRAVERSE BRIEF IN RESPONSE TO APPLICATION. IN RESPONSE APPLICANT SNOWS LAID THES HONORABLE COURT THE FOLLOWING;

ATTORNEY FOR THE DEFENCE MICK GUZMAN, STATE OF TEYAS BAK NO. OBESH670 CONTENDS IN HIS AFFICDANT IN STATEMENT PAGE I, NUMBER 3, STATES THE FOLLOWING: "MA MAYDERPAY STATED THAT HE NEVER WAS INFORMED THAT THE SAID EADICTMENT WOULD BE ALTERED ON THAT THE COURTS WERE NOT ADDRESSED WITH ANY NOTICE OF THE ALTERED INDICTIMENT,"

TO THE CONTERY INDICTMENT AND INFORMATION MUST OBRALN PERIMISSIGN FROM THE COURTS FOR LEOUE TO ALTER OR AMEND AN INDICTMENT AND OR INFORMATION, SEE CODE OF CRIMINAL PROCEDURE, ART 21.19 - DEFECTS OF FORUM, APPLICANT WAS PREFUORICED BY THE FACT HE WAS NEVER ALLOUED AN OPPERITIVITY TO OBJECT, TO PROVE THIS POTAT, THROUGH COUNSELS OWN ADDRESSION WHEN HE STATED THE FACT THAT, "IN CORRESPONDENCE TO HIGH (APPLICANT) ON 09/21/ 3009, I INCLUDED A COPY OF THE 9/16/09 RE-INDICTMENT WITH THE HANDWARTEM CHANGES ON IT AS I RECIVED IT FROM THE DISTRICT CLERKS OFFICE," THOUS IS No MENTHAN OF LEOUE FROM THE COURT TO ALTER OR AMEND OR REINDICT APPLICANT, COUNSEL STATES THAT HE RECIVED 3AID DEFECTIVE CHANGING INSTAMMENT ALLEEDDY ALTERED FORON: THE DISTRICT CLEKY THERE IS No OSSNESSAL OF FIRST INDICTMENT, NO MOTION TO REINDICT, NO LEOUE TO ALTER OR AMEND. THIS IS THE ARCEER PROCEDURE THAT MUST TAKE PROOF TO ANY CHANGES CAN BE MADE, COUNSEL STATED THAT HE SENT ALLEGED RE-INDICTMENT WITH A WAVER THE APPLICANT SUGHED, THES VIOLATES, CODE OF CRIM, PROC. ART 28.10(b).

THES PROVES THAT APPLICANT NEVER HAD A CHANCE TO OBJECT FOR THE STAPLE FACT COUNSEL SENT THE ALTERED INDICTIMENT WITH THE ALLEGED WAVER THAD DOES NOT EYEST, ACCORDINO TO THE DISTRICT CLEKY. APPLICANT CHALLENGES THE STATE TO PRODUCE THIS NON-EXISTING WAVER TO THIS HONORANGEL COURT, SEE SODEPO. US, STATE, 8/5 S.W. 2d. 5/5,555-56. IN STUDER'VS. STATE, 799 S.W. 263 (FEY, CRIM, APA 1990), HOLDING AFTER ANALYZING THE AMENDRENTS' LANGUAGE AND LEGISLATIVE HISTORIES, WE RECOGNIZED THAT THE AMEND, CHANGED THE EFFECT OF A DEFECTOF SUBSTANLE, NON-A DEFECT OF SUBSTANCE IN A CHARGEING INSTRUMENT DOES NOT AUTOMATICALLY RENDER A JUDGMENT WOID. UNDER THE AMENDED DEFINITION OF THE TEYAS CONSTITUTION TO CONSTITUTE AN INDICTIMENT OR INFORMATION,

*2 AN INSTRUMENT MUST CHARGE A PERSON WITH THE COMMISSION OF AN OFFENSE', SEE TEX. CONSTUIION ART I, $12(B), CONSEQUENTLY, AN INDICTMENT OR INFORMATION FLAVED BY A DEFECT OF SUSSTANCE BUT WHICH PURPOSE IS NOT FUN DAMENTALLY DEFECTIVE AND, IN THE ASSENCE OF A PRETRIAL OBJECTION, WILL SUPPORT A CONVICTION, IN, AT 271-275, SEE EX PARTE GIBSON, BCO S. W. 2d 54B, 551 (TEX. CRIA, APA 1990).

IT IS ONLY WHERE AN INDICTMENT FAILS TO SATISFY THAT REGULREMENT THAT IT IS VOID AND INCAPABLE OF INVORING THE COURS JURISDICTION.

THE ASSENCE OF JURISDICTION READERS THE JUDGMENT A COMPLETE NULITY AND EXEMPTS THE DEFENDANT FROM THE RULES OF PROCEDURAL DEFAULT.

THIS, A DEFENDANT'S FAILURE TO OBJECT AS REQUIRED BY ARTICAL I, 14(B) DOES NOT WAIVE THE DEFECT BECAUSE THE JUDGMENT'S VITONESS IS COGNIZABLE AT ANYTIME.

ADAPLLEANT CONTENDS THE THE ONLY CHANGEIN ALTERED CHARGEING INSTRUMENT WAS THE SUSSTANCE WHICH INTENDED TO CHARGE APPLICANT WITH A GREATER BUT HEITH'S SAFETY CODE STILL CHARGE APPLICANT WITH CODE 481,115 WHICH IS STILL A STATE TALL FELONY, WHICH WAS UNLAWFULLY ENHANCED TO A FIRST DEGREE FELONY, WHICH IS ELEGAL WITH IN IPSPLF THIS RENDERED CHANGING INSTRUMENT VOID. TO WAT PROSECUTION USOLATED THE LAW BY FAUSTFING A GOVERNENTAL READED AGAINST PENAL CODE $37.10-TAWPEETING WITH GOVERNMENTAL RECORDS.

COUNSEL STATES IN HIS AFFIDANT IN STATEMENT 4, LINE 19, THAT, "I REVIEWED THE DA'S FILE, HOSILE AND BOOKING VIDEOS, AS WELL AS PHERE CAILS. MA. HASSEDY MADE FROM THE JAIL. THE DRUGS ON HIM FELL OUT OF HIS DANTS WHILE. HE WAS IN THE DACK SEAT OF THE PULZE PATROL CAR AND THEN HE STATED TO THE PULZE THAT THESE WERE CRACK ROCKS AND BREAD CRBMDS 50 ANY FUTTER INVESTIGATION WOULD HAVE BEEN OF LIMITED VALUE GIVEN THE CIRCUYSTANCES OF HIS CASE."

HERE COUNSEL ADDIITTS THAT HIS ASSISTENCE WAS PMEFFECTIVE, IN REGGMEDS TO "STATE BAR OF TEXAS PERFORMANCE GUIDELINES"

1. GUIDELINE 3.2-EXAMINING TRIAL.

A, BEFORE CONDUCTING AN EXAMINING TRIAL, COUNSEL SHOULD MAKE REASONABLE EFFORIS TO SECURE AND REVIEW INFORMATION IN THE PROSECUTORS OR LAW ENFORCEMENT AUTHORIES' POSSESSION, WHEN NECESSARY, COUNSEL SHOULD PURSUE SUCH EFFORIS THROUGH FORMAI AND INFORMAI DISCOVERY UNLESS THEKE IS A SOUND TACIICAL REASON FOR NOT DOSE, SO.

C. IN PREPARING FOR THE EXAMINING TRIAL, COUNSEL SHOULD BECOME FAMILIAR WITH:

1. THE ELEMITS OF EACH OF THE OFFENSES ALLEGED;
2. THE LAW OF THE JURISDICTION FOR ESTABLISHING PROBABLE CAUSE;
3. FACIIAL INFORMATION THAT IS AVAILABLE CONCERNING PROBABLE CAUSE;

*3

1. THE SUBPOENA PROCESS FOR OBTAINING COMPULSORY ATTEMPANCE OF WITNESSES AT AN EXAMIN, TRIAL AND THE NECESSARY STEAS TO BE TAKEN IN ORDER TO OBTAIN A PROPER RECORD OF THE PROCEDINES;

S. THE POTENTIAL IMANCY ON THE ADVISSEMBILITY OF ANY WITNESS'S TESTIMONIY IF THE WITNESS IS LATER UNAVAILABLE AT TRIAL;

COUNSEL WAS INEFFECTIVE IN REGUMBDS TO, GUIDELINE H.I - INVESTIGATION. SEE ORIGINAL MEMBRANDUM OF LAW IN SUBDERT OF WRIT CONNABES COURBDS; INEFFECTIVE ASSISTANCE OF COUNSEL.

FURTHER COUNSEL CONTENDS THAT A PENDING FELONY WARMANT ON HIM FOR ANGRAVATED ASSAULT.

APPLICANT HAS SHOWN THIS HONDARSE COURT DOCUMENTED EUIDENCE THAT THERE WAS NO COMBLANT FILED THEREFORE THERE COULD NOT HAVE BEEN A LEGAL AUREST WARMANT, SEE (EXHIBITS) (ALL EXHIBITS WERE SENT WITH MEMBRANDUM) OF LAW IN ORIGINAL WRIT ANALYCATION.

APPLICANT CONTENDS THAT POLICE OBTAINED AN UNLAWFUL ARREST WARMAN- FOR AN OFFENCE THAT NEVER HAPPENED, APPLICANT FUTHER CONTENDS THAT THERE WAS NO PROBABLE CAUSE TO OBTAIN SAID UNLAWFUL WARMANT, SEE STATES EXHIBIT (IO) ROCK DAE POLICE DEPARTMENT AFFICACITY OF PROBABLE CAUSE, ON THIS DOCUMENT THAT THE STATE USED AT TRIAL, STATES THAT THERE IS NO MENTION OF ANY AGGRAVATED ASSAULT ONLY AN AFFICACIOT FROM A POLICE OFFICER WAS DID NOT WITNESS ANY CRIME THAT RUVESTATED NO WITNESS. TO ILLEASTATE THIS POINT THIS MEANS THAT A PERSON CAN FULL A GUN IN PRODE DAYLIGHT SCAR ANOTHER REASON PUT THE GUN IN HELF FACE IN FACENT OF A CONDENCIENT STATE AND NOONE SEES THIS HAMMEN, THIS IS PRESTEERS WITHIN IT SELF. THERE IS NO MENTEHTION OF ANY ALLEGED ANGRAVATED ASSAULT IN THE AFFICACIOT IT MERELY STATES; AFFICACIOT OF PROBABLE CAUSE WAS DOTAIN BASED ON, AFFICACIT IS CERTIFIED AND LICENSED AS A PEACE OFFICER IN THE STATE OF TEXAS AND THE PROPER DOCUMENTATION IS ON FIVE WITH THE PROPER AGENCYES, SEE EXHIBIT (2) THIS IS A DECEPTIVE STATEMENT BECAUSE APPLICANT HAS SHOWN THIS HONDARSE COURT THAT THERE ARE NO DOCUMENTATION FILED WITH ANY AGENCY, SEE EXHIBIT(6). ON PAGE 2 OF COUNSELS AFFICACIT LINE 2 H SEE, 9 COUNSEL ADDIIITIES THAT THE CASE WAS NEVER FILED, COUNSEL NEVER ASKED WHY NEVER SOLDNT ANY OTHER REASONS OTHER THEN IN TIS MEAD APPLICANT WAS GLIELLY AND DID NOT EVEN TIFY TO HELP APPLICANT, REHORING HIS ASSISTANCE IN EFFECTIVE AND ACCOUDINGTTHIE LAW AND THE STATE BAB OF TEXAS PERFORMANCE GUIDELINES, THE UNITED STATES CONSTITUTION AMERICA AND STUCKLAND VS. WAK HINGTON, HED (18.668,BO)

*4 ADPLICANT HAS SHOUL THIS HONDABLE COURT THAT HE HAS BEEN CONSISTED LLEGALY AGAINST THE CRITED STATES CONSISTEDEN THROUGH ILLEGAL MEANS, THIS HAS BEEN SHOUL THROUGH CLEAR AND CONVANCING DOCUMENTED EVIDENCE THAT CANNET BE ANGUED.

ADPLICANTS COURT APPRENTEED COUNSEL WEREED WETH THE PROSECUTION TO OBTAIN THIS ILLEGAL COH VECTICN AGAINST THE CHE AMENDMENT OF THE UNITED STATES CONSITUTION.

PRAVED

ADPLICANT PRAVERS THAT THIS HONDABLE SEES THROUGH THE SHOKE SCREEN THAT THE PRO SECUTION IS BLOUING TO AFFAM THIS ILLEAL CONSISTED, AND GAINTS ADPLICANT THE RELIGEf THAT HE IS INTETLED TO BY LAW AND THE UNITED STATES CONSITTUTYEN.

Certificate of Service

I Eric Mayberry, Do Hereby Certify that A True and Correct copy of the Foregoing has. been sent by U.S. Regular Mail to the Cenct of Criminal Appeals to:

Court of Criminal Appeals P.O. BOX 12308, Capitol Station

Austin, Texas 78711

Executed on the 27th Day of December 2014