Case Information

*1

FD-1317-14

Steve Wyre

In The Court of the State of Texas Criminal Appeal of Texas

Tettitioner's Motion for Rehearing

the Discretionary Review B The Honorable Judge of this Court:

Comes Noy, Tettitioner, Steve Wyre. File this Reauest for Motion for Rehearing pursuant to Texas Rule ofRECEIVED IN Appellete Proceduce Rules 79 .

COURT OF CRIMINAL APPEALS MAR 022015 Reason for Rehearing 1) The Court failed to address the points of EETOYs under Ineffective assistance of counsel in violation of my VI and xiv Constitution Rights, and where a claim of Ineffective assistance of counsel may be brought for the first time on appeal. See Cannon is State 252 S.W. 3d 342, 348-52 (Tex. Cem. App 2008) U.S.CA. Constitution Al. VI. Amendment.

First Part of Eoror

Appellant received weffective assistance of counsel. At his Pre-Sentence investigation bearing where counsel. A failed to object to unsued victim impact statement entered with Evidence before sentencing and e) failed to object to the twenty-five year sentence as cevel and unusual Envistment in violation of the Eephth Amendment, where the Recoed reflects the appellant was Eligible the Proportion.

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Second Point of Earee Appellant Receved Cevel and wussual Enishment where the Record Reflects that He Received tuxently-Eve year T.D.C. But was Eligible Ase Receation

Tued Point of Earee

the Teial Couet Eared in Accepting Letter from the States Containing ussuesu within uport statement Requesting a Life Sentence without Imoole, ReoR to Sentencing.

Tוסyer for Relief

Wherelere premises considered Appellant prays this Honorable Couet to consider each and every point of Eeror Raised herein to Revease appellant's conviction and to order a judgment of acquittal or new Teial as the law and justice demands.

Respectfully Submitted

Staure ufue. $P_{RO-Se}$

Certificate of Service

I hereby ceetify that on Tebuarey 13, 2015, a teue and correct copy of the foregoing designation was tendered to the cleek of the Couets to be deposited in the box Reserved for State Resecuting Attorney P.O. Box 13046 Austiv, Texas 78711

Ate Abel Acosta Cheek." Court of Criminal Appeal of Tens P.O. Box 12308 Capitol State Austiv, Texas 78711

Sane Mlyre

*3

Identity of Parties and Canned

Pursuant to Tex R. App. P. 38. (a) Veenon Pamph. sous the following person are interested parties?

Residing Judge at Teial the Honorable Judge Kentis Givivey 179th Judicial Defeiat Court 30 San Jacinto Houston, TX 77002 Athorney for State Ms. Rachel Palmer (at Teial) Assistant D.A. Sol Fannin Houston, TX 77002 Me. Alan Cueey (on Appeal) Assistant D.A. Sol Fannin Houston, TX 77008 Athorney for Defense Mr. Ted Doebblee (at Teial) Ahorney at Law F.O. Box 55012

Houston, TX 77055 Ms. Sharon E. Shpis (on Appeal) Athorney at Law 770, Box 487803 Houston, Texas 77098 7131589 - 0771

*4 Table of Contents Identity of Charles and Caves Table of Contents ..... 11 List of Citations ..... 11 Statement of Jucysolicion ..... 1 Reduest the Real Argument ..... 1 Statement of the Case ..... 1 Statement of Fact ..... 2 Summary of the Argument ..... 4 Appehunt: Thest Point of Ease Appehunt Perceived Ineffective assistance of Caves? A his ple- sentence investigation hedering wheez comes? (I failed to object to unsucess victim impact statement efticeed who evidence, bethe sentencing and e) failed to object to twenty-five year sentence as cerel and unusual Dussbment in violation of the Eaphth Amendment, wheez the Peceed Letters the Appellant was Eligible for ..... 5 Section ..... 6 Appehunt: Second Point of Ease Appehunt Perceived Cerel and unusual porsbment wheez the Peceed Letters that he Perceived Tavenlytive years T.D.C. But was Eligible for Reobation. ..... 11 Appehunt: Thest Point of Ease the Tand Caves seed in excepting Letter from the State containing unusual ושותing impact statements Requesting a little sentence without heeze pence to Sentence. 13 Pence the Relief ..... 15 Cestificate of Service ..... 15

*5 List of Citations Federal Cases

| Event | Page | |------|------| | Swallow V. Tobacco | 202 F. 3d. 336 (5°Cie. 2001)ecet.deviad. 535 U.S. 11200000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000

*6 Statement of Jurisdiction This appeal lies from appellant's conviction in The State of Texas vs. Steve Guge. Cause No. 138440 in the 179th Judicial District Court, HARRIS County Texas. Defendant filed guilty in separated sexual assault of a child uprazer than 14 years of age on March 3, 2013. A free-sentence Investigation heading was held on May 10, 2013. The Court found the Defendant guilty and Sentenced him to twenty-five years in T.D.C. (Is-14) Notice of appeal was filed on May 10, 2013. Appellant filed and amended of appeal on May 18, 2013. This court has Jurisdiction pursuant to Tex. P. App. P. 86. 201 Version (Pamph. 9013).

Reauest for Oral Argument Pursuant to Tex. P. App. P. Ann. 33.1 (Vernon Pamph. 9013, Appellant Request oral argument in this cause.

State of the Case This appeal lies from the appellant's conviction for aggewitted sexual assault of a child under 14 year of age. In three points of ERROF, Appellant complaus: 1) He Perceived weffective assistance of counsel with regard to his presence investigation heading; 2) What He suffered cruel and unusual punishment in violation of the Eighth Amendment where the Record Reflects the appellant was sentenced to twenty-five year T.D.C. but was eligible for probibition and 3) The Trial Court erred in accepting letter constancy, unsuited victim impact statement. Requesting the appeal, he gave a life sentence without article prior to sentencing.

*7 Statement of Facts The Check eessed reflects that on May 9, 2013, A The Sentence Investigation bearing was held at Cause No. 1304440 the state of Texas is. Since 14 per (R. II-1) The eessed reflect the appellant, pled, quilly to the oftance of appointed sexual assault of a child under 14 years of age and the case was set for a pre- sentence, Miesbaphaic beaking (C.R. II-3).

Dear, to the pre- sentence, investigation bearing, the eessed reflects that the appellant agreed that there was no unassaulted that he would get probation (C.R. II-4) The eessed reflects that the appellant agreed that there was no quabittee that he would get probation of the least amount, five years and that the could not use full cause of punishment the year to life (C.R. II-4) The eessed reflects that the appellant agreed what if the could decided that he deserved probation, defeated, the could do what if the could desired (C.R. II-4) The eessed reflects that the appellant still want to possint us his plot and did not want a trial (C.R. II-4).

The first witness called by the state was Kucur. Pankar (R. II-5) No. Pankar is Explored with the Department of family and protective services (C.R. II-5) No. Pankar became worked in the case of December 5, of 2012 and not with the children individually, thee patients, not with the dipes, the appellant, where he was intereceived (C.R. II-6) No. Pankar stated that the children have a lot of love in them, and have a hard time disclosing and talking about the abuse, but is slowly coming out (C.R. II-6). No. Pankar stated what use of the children, milled with love, she didn't want to celebrate her birthday because the appellant passed, her on her birthday (C.R. II-7) No. Pankar and with the appellant have you in the 3ail on 3043340 to explain to him what a family plan of service is and to see if he was interested in working with the spouse (C.R. II-7-8). No. Pankar did it because the appellant children love four (C.R. II-8).

At this time the Defence objected to my statement made by the appellant because the appellant had plot quilly (C.R. II-8) The objectives was overculed (C.R. II-8). No. Pankar stated that the appellant was somber and poikivicid, not would not stop the family plan of service at that time (C.R. II-8) On the second visit the appellant advised No. Pankar what she told, but what if he stopped the family plan of service he would able to get out of the jail (C.R. II-9) No. Pankar said she knew perceived that all that to prove of authority to make any statement such as what (C.R. II-9) No. Pankar stated that the appellant was applied and advised what his atticncy said he standin' spoke to her (C.R. II-9).

*8 As Parker stated that she would be the caseworker he she quits and they were in a safe environment (C.R.T-10) his Parker was excused. (C.R.T-10) The Couët visited what she wrote had provided the Couët with Spine letters (C.R.T-10) The State agreed what she wrote had provided the Couët with Spine letters which had been reproduced to the Defense(C.R.T-10) The Defense had no objection to the letters being admitted to the V.S.T. Report (C.R.T-10) The State post did the Defense called the Appliant Stone (C.R.T-3) He, why, the Appliant Stated what He had never been consulted in this state of all other state of as long Defense(C.R.T-3) He indicated that he had never been placed ovfecisly at all purposes in this state of any other state in the United States (C.R.TT-3,4) He, why, agreed that he had quily in an Otterse because He was quily and that he was abusing to the secret the punishment and asking the Couët the money (C.R.TT-4). He agreed that He would be able to work and support his disposition and follow the Couët's Rules (C.R.TT-4). He, why, indicated that he was able to report once a month and was working doing something, working as a positive and making approximately 30000 monthly (C.R.TT-4,5) He, why, stated that he has two dispositions. Five of them are, techniques and the best are little kids (C.R.TT-5) He, why, stated that he has six Natural Children and the complexion were not his children (C.R.TT-6) He stated that if he was given a second Chewer He would be a better Fother (C.R.TT-5) He, why, stated He was pretty-food years old (C.R.TT-5). He, why, agreed that he understood the Judge had the full range of punishment anywhere from five years to life. If the Couët did not consider delayed adjudication (C.R.TT-6) He, why, agreed that if the Judge did not consider delayed adjudication, He was asking her to consider the lower end of punishment (C.R.TT-6). He, why, asked the Couët to please give him a chance because he had no 11 month old and a 5 year old that used him (C.R.TT-6) He indicated that he understood that the Couët was going to order him not to have contact and pay child support (C.R.TT-6,7) On C2055 He, why, agreed that he ad- sentiated that he actually assumed his three Shy children (C.R.TT-9) He agreed that he assumed ad- sentiated that he should have (C.R.TT-9) He agreed that he was fourteen when he started (C.R.TT-10) He agreed that he assumed affected sources and when the case bave he had not up (C.R.TT-10). In Closing, the State asking the Couët to look at the letter about the address and to be classified all of the evidence in the V.S. Report (C.R.TT-10) States explicit to the V.S.T. Report was affected in evidence, above to sentence (C.R.TT-10) Following sustained him to 25 years old (C.R.TT-10)

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Summary of the Argument

Appellant complains that He received meflective assistance of Counsel during the pre-sentence investigation reading. - Whete the record reflects what Counsel 1) failed to object to unsuen viction impact statement admitted into evidence before sentenaiag and 2) failed to object to ceuel and unusual punishment when He was sentenced to tiventyfive years. I.D.C. Appellant further complain what He suffered ceuel and unusual punishment in violation of the Eighth Amendment, where the record reflects the appellant was sentened to a tiversity-five year sentence but was eligible the probation. Finally the appellant complains that the Trial Court Effered in Aceepting letters continuing unsuown victim impact statement which were Admitted into Evidence before Sentenang.

*10

Appellants First Point of Error

Appellant Recevied welfective assistance of Counsel at his Fte-Sentence investigation Heating where counsel is failed to object to unsuverm victim impact statement entered into evidence before sentening and 2) failed to object to the twenty-five year sentence. 42 equal but unusual investment in relation of the Equib. Amendment, where the record indicate the Appellant was Eligible the Probatios.

The Stendilant test was appiles to the porsiment phase of a non-capital veial. See Hounsider v. State, 988.3 W. 2d 53. Tev. App. 1999) gestalting Ex parte Dutly 6073 W . 2 d 507 516 Tev.Can App. 1980) establishing test the welfective assistance of counsel in porsiment phase of non-capital. teval.) use now apply the same two-group stendilant standard of Review the welfective assistance of counsel makes in both the quill/avidence phase of teval and the porsiment phase of Teval. Hounsider v. State 7263 W . 2d 52,55. Tev.Can. App. 1986).

To show welfective assistance of counsel at porsiment the appellant must best demonstrate counsel's apdessentation tell below an objective statement of zeessurititues under prevailing professional ideas. See Stendilant v. Washington see U.S. 608, 1043.01 3052 306 Ed. 2d 674 (1984) McFarland v. State 4983 W . 2d 452500 Tev. Com App. 1986. Counsel's competence is presented and the appetant must debut this assessment by describing the acts of conssions of counsel that are alleged as welfective and debentively passive that they tell below the professional ideas of zeessurititues. See, Mc Farland 4293 W . 2 d 4500 N welfectiveness claim. Cawson to cearonstented by isolating any portion of counsel's depdessentation, but is judge on the totality of the depdessentation see, Stendilant 166 U.S. at 688104 3.01 at 0065.

The Suppose Couet has held what counsel's deficiest performance that resulted in a higher Sentence under cetermising guidelines constitutes prejudice Glovek v. United States 831 US. 198 (2001).

*11 Counsels Representato Tell Below An Objective Standard Reasoudderss.

In the instant case, appellant agnes that be received. mePloctice assistance of counsel where counsel is failed to object to unsuccow victim impact statement consumed within the per-sectence investigation Report and within letter to the Court that were entered into evidence before senteming and to failed to make an Eaith Amendment Objectio Hestity urdling appellate Review, where the appellant received tseetty the ueats.

O Mulue to Opectiof to unsucoen victim Iapact Statement Admitted into Evidence betor Sentencing.

In Q180ard v State 550 S. 40. 24 291 (Tex. Cen App. Houston. Pust 1398.981881) the TTest Coust of Dppeal Reveessed and Remanded the a new Dutishmeat heding, where counsel the the detecse 1) failed to object to unsucoen victim impact statement made betore sentencing and 2) did not ask to conduct ceras- EAmintion, the Court wited in Q180ard. clearly, the FARERS statement having been made nothge Dutishmeat was assessed did not qualify as a statement being made under aeticle 4.503 24 simply failed to meet the guidelines establish by that article.

Consequently, the ypial coust should not have allow the statement to coug betore the prooucement of sentence.

In addition article 37.07 of the Tex. Code of Cen Pooc. does not Authorize the use of such a statement. Tex. Code Cen. Rece. Ann Aet. 37.07, while we Recognize that the Trial Court has pepard disceetion under aeticle 37.07 to decide what is Pelevant to sentencing, wee last nothing. in the article to lead us to conclude that legislative intended to allow an unsucoen statement at the peristment heding. See 10.

A victim-impact statement, as authorized by the United States Superef. Court in Plywie v. Tennessee 501 U.S. 908, 897 U.S.Ct. 115 L. Ed. 720 (1991) and by the Texas Court of Cerminal Appenl in Fad U. State 919 S. 40. 2d 107, 114-16 Tex. Cen App. (1996) is testimony given under coth and Capable of being ceras-examined.

*12 Iv should have object and the Tral Court should not have allowed the statement to be given, see id.

With regard the welfective assistance of coumest claim the court listed "the teial coumself failure to object to have been welfective assistance," appellant must demonstrate what if he had objection "Vauquy v. State 355 S. w. 2d 6074. Tex. App. Anustow. Fost (194) 1949 431 S. w. 2d 504 Tex. Eern App. 1949) we believe that if Griflads Teial Coumest need objectod we the victial impact statement we Teral Court would have edded in overfulting the objectifal Thes Griflord has demonstrated that his teial coumself was welfoctive. See id.

Iv the wotant case the complained of unsworn victim impact statement were conrawed withit the the-seatence Thestration Report and the wothw the letters Thom the sotee matod C. Maribel G. and Maribel C. compawing w/hecs These unsworn statement were entered into evidence before puwstiment was assessed. The wotness wece wot pceceut to testidy and thecty wece wavinitable the cross-examination. At the puwstiment hecring and hethee puwstiment was assessed. His trekee was excused and the state agreed that the state had provided to the court with some letters which had been teuddered to the believe (C.R.I-10) The betence had no objection to the letters being admitted to the P.S.I. Repolet. (C.R. II-10)

States Exhiclt 1 the P.S.I. Report was entered into evidence, pruR to senteuring. (C.R. II-12).

The letters Thom marisa C. Maribel G. and Maribel the complaining witness appear in Court Repotts Volume IV pages 24 theouah 39 and retled thee view about the cirtence, the defendant and the cirtence on the victim.

Specifically the letter signed by Maribol G. stated that the stress is overuheling the feel like hef Eaend will nequs to judge her, and she request what the appellant be senteured to life in person without parale (C.R.11-35) the letter signed by Maribel G. stated that she hate what the appellant was given enough time to veuly charge (C.R.1U-36) The letter. signed by. Maribel states that the appetant should go to person and stay there for life. C.RIV-37.

*13 However, as previously mentioned the Delpuse failed to object to thefe atressely under Article 4203, 59, 161 of the Tex. Code of Com. Dose. The Tens. Code of Censual Procedure Authorize a count to beceuse victim statements see Tex. Code Cenn Dose. Any def. 42, 63 See 161 (Vernon lamp Supp. 2013) but as shown below the legislature has seweekly limited the use and impact of the statement by requiring that it be made after pussament has been assessed: (b) the count shall permit a victim close belpive of a deceased victim of quaddin of a victim as defined by Article 50, 61 of this Code to appear in person to present to the count and to the defendant a statement of the person's view. and the offence the defendant and the effect of the offence on the victim, the victim Relative of quaddin may not direct question to the defendant while making the statement the count reppetite may not reassemble the statement The statement must be made: (c) After pussament has been assessed and the count has determined whether of not to speak communty, supression is the case (d) After the count has announced the terms and condition of the sentence (f) After sentence is pronounced:

The complained of unsucced victim impact statement contained within the letters weke entered into evidence (1) before pussament was assessed, (2) before the count announced the terms and condition of the sentence and (3) before sentence was pronounced.

Clearly, there unsucced victim impact statement did not qualify as adressive statement under Article 42, 63 See 61. Consequently, believe counsel should have objected to the States withoution of the letter conbining unsucced victim impact statement into evidence.

As previously noted, failure to object to a victim impact statement made before sentinging has been held with the Assurance of counsel and preventible effect. Suffered v. 3446, 4803, 40, of 74 (tex. 492-4003) (Post 1995, set 4863) see Tainson v. State 250 S. W. 344 (tex. 6210, 499-5003).

*14 Judae had no disceptus we impose Jail time as a condition of propitial after Judae heard unswept and uncons-eminined victim Allocution including statement that victim wail detbated up to 4010 Jail. (a) Failure to object to the 26 year sentence as casei and unusual investment.

Detease counsel failed to object to the appellant's sentence 26 year of person the approded setual assuited of a child 14 year of age as deyet and unusual investment, under the English Amoutment. Failure to cause an Eighth Amoutment objection of Troll present making any such claim on appeal. See Trol. 2, pp. 2-33. (a) (1) App. v. State No. 3, U.S. 201400 487. Trol. 2, pp. 245. (b) Failure to deeevive eegor pos. toceal held to alternative assistance of counsel. Moutter. v. State 324.3, U.S. 201508 (Tral. App. 324 Autonno 1890 report.)

Appellant argues that weibative assistance of counsel is no case the equivalent of denial of counsel and what He should be granted another the Seetance Investigation bearing

The beackment the finding a child of weibative assistance 13 whether counsel's conduct to understand the people Amotivising of the adverssarial process what a Trol. could not be relied on having produced a just result. Sheeckland v. Washington 126 U.S. 608, 104 S.C. 2082, 80 L. Ed. 2d. 674 (1859) To establish weibative assistance of counsel is the quity, unvovable cause of Trol. 244

Appellant must chew what a pos. counsel's pettiemce was deteined 18 counsel eekors were so serious what he was not functioning as the counsel quenerve by the such impediment and (a) the deteined pettiemce dejudiced the detance 18, observed from of a true Tral. 2d. 687. See Reeubater v. State 726.3, U.S. 53,55 Tral. App 1880.).

These eekors demotivable (1) the appellants, counsel's pettiemce was untewably deteined 18 counsel's eekors were so serious what he was not involving as the counsel quenerive by the 3140 Amoutment and (2) the deteined pettiemce peejudice the detance 18, observed from of a true Tral. 2d. 687. See Heeubater v. State 726.3, U.S. 53,55 Tral. App. 1980.

*15 Undeciqued Counsel can wuck of wo strategy for 92 falling to object to letters contrains unsworn victim project statement. Requesive a the seltence. Drive to punsement being assessed or (2) falling to object to tuxety-ave year senterike wo order to precteve the matter the appellate. Review. See United State v. Cravic 44ab 113. 143 (1934) Turedive v. Jobson 312a E3d 336 (5a Cir 2001) celd deaved 535 U.S. 120 (2003).

Appellant must shew not only what his attorney failed to proude. Peasovably professional assistace, but what appellant was thereby banned by counsel's failure. Stackland v. Wiskumston 34 ppa. The standard the Reversible error is whethed sudgins. From the record as a whole, where is a reasonable probability what but the counsel's unprofessional error, the result of the proceedings would have been different. Stackland v. Wiskumston 34 ppa. In dislusive the harm to appellant this could should pressure what the trial court and you would have acted according to the law. Stackland v. Wiskumston 34 ppa. However, appellant would noted what showing Harm, He is not required to show what he received. Peasovably professional representation then more likely than not a different outcome would have resulted. All v. Whiteside 475 U.S. 157 101a S.Ct 985.981 .Ed. 3d 129 (1953).

Appellant received ineffective assistance of counsel at his free-settence Investigation Hearing.

This Caret should precess appellant's conviction and demand the case for whether procedure. In E. App. P. 42.2(d) Vewow Amph 3018): Te. E. App P 44.2(a) Vewow Amph 3018). Tabs v. Pheida 457 U.S. 31, 102 S.Ct 2241,78 L.Ed. 2d 1053 (1982) Meekr V. State 785 S. 41, 2d 146 Tev. Cem. App. 1990.

*16

Appellant Second Front of Eerice

Appellant Received Devel and unusual Enrichment whege the Second Partents that He Received tuxenty-five T.D.C. But WAS Eligible the Reapation.

Appellant is avape that failure to Raise an Eeath Amendment objection of Teral prevent making any such claim on apocal. See Tex. 8. Bpp. P. 33.100. Curery is State 210 3.10, 3d 4.40, 4.47 (Tex. Cerm. App. 1996).

However the Term Rules of Evidence Decide that in a Cermural case nothing of the rules precludes which Abree of fundamental ecroses affecting substantial rights Although they were not brought to the attention of the Court. Tex. R. Cerm. Evid 103(d).

Appellant codiered 3 that his strategy is disprepperable to the ussense the which He was charge and isolated the Eeath Anentment in the United States (distribution of perchinting, clevel and unusual Enrichment whece the second Pettents that He received a twenty-five year passow searence from the Court. Appellant codiered that there is evidence in the record, is desprised by Selem V. Holin 463 (4.3.277(1983) Reflecting Secreates imposed on Similar Offences. IN TEXAS of Office Tuesidictial, See Selem V. Holin 463 (13 277.103.3.Ct. 3001, 77 L. Ed. 3d 637 (1953).

The Second Pettents that He gave, the Appellant has never been convicted in this state be any other state of a belowy Offense (C R. III-4) He indicated that he had vewing boud placed on abous adult peopleow in this state be any other state in the United States (C R. III-5.4) He wige agreed that he did awily in an offense because he was suily and that He was quilly and askins the Cever for Merey (C R. III-4) He bowe that he would be able to work and suypost his dependen and follow the causes Rules (C R. III-4) He. were indicated that he was able to report cure a month and working done suubtarting working as a plarator and makes BDSM Manly (C R. III-4.5) He wige added that he had too dopuclied five of them are teenspees, and the least ake little was (C.R. III-5).

*17 MR. WYee stated that he has six natural children and the complanant were not his children. (F. III-5) He stated that if he was given a second chance, he would be a better father. (F. III-5) Me. WYee stated that he was forty-two year old (F. III-5).

The record further reflects what MR. WYee was eligible for probation and filed a hotter for Hebation with the Court prior to the P.S.I hearing. (A I-24).

Appellant contend that a twenty-five year sentence is grossly dispeepoetionate to the crime is light of the fact that he has no prior felony convictions and HAS never been granted adult probation in this or any other state in the United States. The fact that the apptant was eligible for probation indicate that other, accused of the same offence have been granted probation. WYus reflecting sentences imposed on Similie Othuse in Texas or other jurisdiction see Sakon K. Helm, 463 U.S. 277,103 S.C. 3021,77 L.Ed 2 d (437 (683).

This Court should reverse appellant's conviction and demand the case for further proceedings. TEX P. App. P.43.2.60 (Veewon Chapl 2013) Tel P. App. P.44.2.60 Veewon Chapl 2013); Tibbs v. Florida, 457 U.S. 31,102 3.Ct. 2211,72 L.Ed 2 d (2533 (2882) Meeaz v. State 785 S.W. 2 d (446 (Tev. Caim App. 1990).

*18 Appehant's Third Point of Eeoor The Thial Court Eeod in Acepting Letter from the State Continging ussussod victim Tnpoyd statements Eequestug A Lise sentence without deode Oeof to seatereusg.

In Jobuss v. State 280.5.W. 3d 346 Tel. (ain 490.2009) the Court of Censod Apegh Eeveod and eemouted holding that a judge has no aboction to impose you time as a condition of peobation atree judge head ussuseod and underos-exentod victim adoration including statement that victim wanted defandant to go to Tell The Court woted that "the purpose of article 42.03 See 1161 Te. Code Cen, Hose is to protect the teial Tudge from any implicit or Explicit acousation that he could be or would be influenced by the victim adoration statement. If is the appearance of possible influence as much as the possible that of nillueuce, that the stotute quoads apuust see id.

In the wotent case as woted in Appelbut's Tost Ground of Eeoor, the influence failed to abject to the adoration of ussuseod victim Iepact statements that judge entered in to evidence below seutereing, and theeof called to preserve eEeof on appeal. However, the Tews Rules of Evidence provide that in a Cenngay case woting in the Rules peechoders taking notice of fundamental eEeof affecting subsadod egots through they week Not brought to the attontion of the Court. I.E. Cen Eud 103 (a).

In the wotent case as previously woted in Appelbut's Tost Ground of Eeoor, the complaned of ussuseod victim impact statement were contained within the The-Sentence Investigation Report, within the letter from the sssso Meara C., Mhebel G. and Mhebel C. The complaning witness these ussuseod statement were entered into sentence below pussbment was assessed the wotent were not peeent to testify and wheeplace were unavulable the ceoss-examination.

At the pussbment bearing and below pussbment was assessed. Ms. Porkee was eweod and the state agreed that the state had peovide the court with some letter which ceew refedend to the letence (C.R.I-10). The letence had no objection to the letters being admitted to the P.S.T Report (C.R.I-x) State's Exhibit 1, the P.S.T Report was eubood into Existence peod to seatereing (C.R.II-12).

*19 The letters (con Mansa C., Maribel S. and the complaining witness, Hishol C., appear in court. Reported 5. Volume IV page 34. Whoron so and rather, there Vieux about the defense the defendant and the effect of the defense on the victim.

Specifically the letter 5 left by Mason C. signed that the stress is odourbating the first two two about will begin to Tudge her and she request that she approach services to the unproven without parole (Cf. iv. 43). She senter signed by Maribel a statement that she hope that she approach was given enough time to really change (Cf. v. 36). She letter signed by Hishol stated the applicant should go to proven and stay there for 186 (Cf. 1437).

Appe1ant contract what she eater was not harmless in this case she record letters what she applicant was Elgable the pertion (Cf. 27.34) but was sentenced to 41 sentry-five year T.D.C. after she victim againd statement Requesting a 4 th sentence were entered into evidence (Cf. 27.13) The pretuient stotute is both clear and explicit: defiell 42.03. Equises that she victim statement the read after she sentence has been imposed and abber the Court has announced the vions and condition of the sentence, see the Case (Con Eire Auk. 112.08 See T.D.C. Vention 34 pp. 2015).

Appe1ant request that this Court Perverse she veiel counts 7 1stpart and demand and revoke the 7 1stproct what she read count should have peridered:

Appe1ant specifically request that she can respond a nature of gully and place him or deffessed adjudiction. Decbation. If she applicant is not a perfect perition, she count may showy one of the condition of community before to wehode 344 time as has as that could see is not connected to the victim statement asking for person time, see 7 1stpon v. state 232 S. W. 3d 34e (Tev. 38 cm . App. 2009).

This Court should revence appellants confiction and revoke the 7 1stproct that she veiel count should have bouded, Tev. P. App. P. 43.0 (C) (Vemon Emph. 2013) Tev. P. App. P. 44.0 (C) Vemon Emph. 2013) 7 1stp v. Plesion v. State 755 S. W. 3d 140. Tev. 38 cm . App. 1880.

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Prayer for Relief

Whegwhere Premises considered appellant pepy this showbable conjet to consider each and every point of

and to order a judgement of adjuntial or non-Trial as the law and justice demand?

Respectfully Submitted Steve Slyne " ISSScore Easthan Unit 2005 Person Pat"1 Lovelady Tt. 758 KI (pen-se)

Certificate of Service

I, hereby ceetily what on Tebnuary 15, 2016, a seue and cokrect copy of the Sbergoing desigpation was tebdeed to the check of the courts to be deposited in the box Deserved for: "Click" abel Beosta Court of Cermual Apposalat Tans P.O. Box 15046

P.O. Box 18308 Capital Sation Austin Texas 78711

Shate Despocution Attorney P.O. Box 15046

Austid Texas 78711

Shate 30fice " 1ssscore

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