Case Information

*1

867.15

CAUSE NOF 14-13-00818-08

ORIGINAL Count of Criminal Appeals Austin Texas

Anthony Earl Washington RECEIVED IN COURT OF CRISINAL APPEALS APPELLENT JUL 142015 VS The State. of Texas Abel Acosta, Clerk APPELLEE FILLDIN COURT OF CRISINAL APPEALS 248* Judicial District HARRIS Counts, Texas Abel Acosta, Clerk

The Honorable, Katherine Cabaniss Judge Presiding

Petition for Discretionary Review PRO SE FORMA HUITERIS

Anthony Earl Washington TOES P 1882272 4304 Hwy 202 Bebuille, TEXA 78102

*2

Table of Contents

Index of Authorities ..... P32. Index of Judge, Parties and Camps! ..... P32-3. Statement of Reguancing Oral Argument ..... P3 3-4. Statement of the Case ..... P33-4. Statement of Mocbederal History ..... P3 4. Counish the Review ..... P3 5 Argument ..... P36-9. Ground of Haying: The corit Abased its Disceacrion and Authority By Allowing Repeater Actions of Haying. Second P2 22 Federal Misconduct: The Judge Residing and the District Affoaney Abased Me Washingtois constitutional Cights By Allowing Repeater acs of Haying And Bousious Evidence into Record of toial. Second P3 Rules of Evidence: The corit Allowed WUU valaclated Evidence (Rast of Cunearity) And Togped Homesay Testamony And Haying at toial.

*3

Gromud 24: Sentence, Mr. Washington Assects that due to his first Record of more than 10 yas of a conviction that was used to Inhance His charges) and was Given an Unconstitutionaly Sentence length of 35 years instead of a much lesser Sentence for what shald have been Simple Ascent at Best.

Prayer for Relief

APPendix

*4

Index of Authorities

Brady v Maryland: 373 U.S. 83, 83 S.C. 1194 Cleues v State: 922 S.w. 2d. 124,134 Costillo v State: 899 S.w. 2d. 784, 802, 803 Davito: (SuPP 1982) 631 S.w. 2d. 273 Psejuaq (Kerl) Hicks v State: (APP 14 Dist 1993) 864 S.w. 2d. 693 Criminal law (Key 29) Johnsou v State: 23 Sw. 39 1,9 WAdhington v Texas: 388 U.S. 14, 19, 87 S.C. 1920, 1923 (1967)

Texas Rules of Criminal Proceedur TRCP: Rule: 39.02 TRCP: Rule: 38.23 TRCP: Rule: 44.2

*5

Index of Judge, Martres and Counsel

The Honorable Judge Katherine CARIness sost Medical District Isol FrankIn, 6th Floor Houston, Texas 77002

District Attorney for the State Julie Fletcher Isol FrankIn, 4th Floor Houston, Texas 77002

Trial Attoandy for The. "Defence Kenneth MleCoy To. Box, 53347 Houston, Texas 77052

*6

APPELLANT ATOXNAGY - State ALAN CURrry 1201 FRANCIL, $6^{\text{th}}$ Flor HOUSTON, TEXAS 77002 APPELLANT ATOXNAGY Foe APPELLANT KUET'S WENTZ 5629 Cypress CREE FREKWAY suite 115 HOUSTON, TEXAS 77069 APPELLANT ANITIOUS EARI WASHINGTON CARETA EAST TOXJ $1888272$ 4324 HUY 202 BREWILLE, TEXAS 78102 (No DRAI Aregument Requested)

Statement of the CREE

On January the 8th 2003 Me WASHINGTON was convicted by the charge of Assault with a deadly WEBERM. And SENTENCED to 35 years in the texes Department of Cerminal Justice. The District Attorney

*7 Ms. Fletcher Enhanced Me Washingtons charge from a second Degree felony, to a 1st Degree Rellonoy And Sentenced to 83 years in Ffison. The Jwy fund Me Washingtors Guiltg And Sentenced to 30 yrs, in which this came about By Dring total the count allowing Flageant and Repeater Acts of Fiejuy By The states Wittuess's. This Being Act of Trial and the count using Me Washingtons Past Recoed of more then 10 yrs of a conviction, which lead to the Enhancement of his charge which Beought Both By previous Evidence and which Beaug the Ex3e4ve Sentencing at Trial and isolated Me Washingtons Constitational Rights Bstk us. And TEXAS Constitations.

Me Washingtors is confident when the count of Criminal Effects Review And considers All Facts, And sees the numerous witness Fiejuy Albued at trial and inconclusive Evidence Beough Fourth, the count will grant Me Washingtors a New trial and be adjust the Sentence length guibs.

Statement of Procedural History Me Washingtors was convicted of gggeated Assault with a Deadly Weapon on January 8th 2003.

Before and During Trial his Motions were Ffioct May 12, 2015 the KfE Count of Arbeits Affirmed Judgement

*8 Ground St. John Ground 1, Huejuy: The Judge and District Attorney then the entire trial let the witness commit puegway By continually changing test-mony of the 4 witness test-fing at trial. On this issue gave a mistral should have prevailed.

Ground #2, Judicial Misconduct: Then the Entire trial the Judge the Honorable Katharine Crabines, and the District Attorney Ms. Julia Fletcher, let the 4 witness's change the test-mony and commit puegway.

Ground #3 Rules of Evidence, The Judge let the District Attorney Alou False Evidence of Property such as the Knife and Fits, current ship was that of Ms. Alfred, And Also Several counts By Alouing continuing Hrassary Evidence influence the jerky.

Ground 4 Dחדence, The Change against the Washington should have been on of a much less or watare, ie; Assault or a class c Musclemence, Becease the Washington was clearly By trial lecoed Protecting himself from the presow of Agcessio Ms. Alfred, who also shank have been changed with Assault with a clearly uasper. The Washington is conucent the count will see the tenth in the interest of Justice.

*9

Argument

Comer now Before the Coust of Criminals to state the Argumem of Authony Eerl Weshigton, In Fersite of A new teiel And or Sentence Ked wction is SAid Nunteded And Styled Case. To Dring Reath All erros werther it Be the U.S. Constitation or Teors State Constitation And Bill of Rights. The errods are as follows, During Ma Weshingtors teiel the 3 withess's, Ms. Priscilla Alfred, Ms. Berma- dette Jecsow And Ms. Jilisza Moreno All committed Reperted Herjury while giving testamay on the Stend while Being Enestined, By Both sides, this Deuge to light that true prejuicy, Robeased And falspification of testimony in court violates the reas rule of Cerminal Idocedue 37.02: Offense of Peryuey Becomes a Efewey when it is made during An official Recectings And is matreial, thick v State (RPP 14t Dist. 1993) 804 S.w. 2d. 693 Cerminal 14w(Fey 27) And Reyury is committed By mating a defberate And willfull false settlement undea oath. Matter of Dovile (upsp 1980) 631 Sw 2d 273 Reyury (Key 1). Sittement suown to must be one of recte in cader to Be nst of opinion As to the legal effect of cectain facts in cader to Constitate perjury, Savage v. Heveon Rewsfba + wherehare Co., 1949, 219 S.w. 2d. 101 Peryuey (Key 77). which in teial Reaiscint of all 4 states witness

*10 in pages 63-69. Ms. Jackson, Ms. Alfred 79, 27-31,36-42. and 58 and Ms. moleend. These are but a few of the pages of manuscript, not counting the is your old Boy, is got the full scope you need to record all 45 testamony that shows over and over Peajwood Acts. This Pangs to light the judicial Misconduct, not only did the judge and District Attorney allow these acts of Peajucy, 79, 105-1-14, 16, and 79, 125-13-24, also by not allowing into testimony the Violent Part of Ms. Priscilla. Alfred of numerous police calls of Beating out windows of houses and autas, and also her conviction of Assuatt with a Deadly Chayron, if this would have Been Brought to light, then the true cunseship of the Kite would be Known, that it did not Beking to Mr. Wioh- ington at all. which Pangs us to Evidence used at Trial, like the Kite and Mrs that Bebuged to Priscilla. Alfred, Ms. Jackson and Ms. Moleend, 180, 38,23: Evidence not to Be used (A) as Evidence obtained by an office or other Person in violation of any Pensions of the constitution or laws of the state of terms or of the constitutional laws of the United States, shall be admitted in Evidence against the revised on the trial of any criminal case. Mr. Wiohington's Post criminal Record Being used that Being more than 10 years old, and the history the District Attorney used where cases that had Been classed. Constitutional Cause). In

*11 which the night of the investment when the Følles failed to investigate or take those of the season of the alteacertion took Place, which a 8 year old Boy did the next day, The Beech, Deelosea states, Intearmation or evidences that is Prubeable to a criminal defendents use and that persecution has a duty to discloze. The withholding of such Intearmation violates the defendents due Process Rights. Beedy v. Dineyland 373 U.S. 83, 83 S.C. 1194, costrilow State: 899 sw. 2 d . 184, 802. This eplp to when Mr. Alfred went to the Hospital and the Doctor's Reposes is itself shous perjins, no Head Peeuma and no Baskes Teeth, unable to walk the big Pecsids, But 2 chus latex when By these curs wacss wared on and affected The Washington again, just as such as on the 8th, when some of the Blood on Mr. Atheess clothes were that of the Washingtons, from were she cut his fingers with the Kirt that was in her possron wot the Washington. This would be where her little Geshba said what Sister and mother coossed and taught Texas Boots of Criminal Procedures. Rule 44.2: Reveasible scason in criminal cases (a) constitutional scason, or the private Record in a criminal case Rev eab constitutional Eason that is subject to Harmless scason Review, the court of Atheess must revese a judgement of conviction or punishment unless the court Determins

*12 Beyond a Reasonable Dught that the peace did not consterate to the conviction of Rewishment. When conducting a Arterial Sufficiency Rewibw, we do not view the evidence in the light most favoazable to the verdict, we view the evidence in a veritial light favoring worthant that, Clevers v. Stots 922 S.W. 2d. 124; Johnson v. Stots 23 S.W. 39 1, 7. Me. Weshington also states that his Attracter violated his due Fascoss by not calling witness on his Eethat. Weshington v. TEXAS 388 U.S. 14, 19, 873 C.T. 1920, 1923 (1927) This might to have withnesses Flesbirt. The expresserted Facts, the Light to offea testamony of witness and to compel those Attendance. The Bany a Ruda menfal element of Due Faccas.

Me Weshington Facts that when all areas and aspects of law are Bought to light forthweth. In this Augment, the Honowable Court of Cerminal RPEats will see Jisteb Deus and grant Me. Weshington a new trial, or in the very least a sentence fadention to Fit a a Best a 3ed Degree. Eling, if not a class a misdemece of simple Assnlt and Self-Delive.

*13

Prayer for Relief

Me. Washington comes new Before the Honourable Carer of Criminal Appoats in Prayer to seek Relief in the Abem of a new Trial. Are the Persons stated forthwith or at the very least to pray to the carers? Are what should have been a much lesser charge, and Reduce his sentence accordingly:

Sincerely Anthony Earl Washington

APPENDIX

$$(10)$$

*14

May 12, 2015

JUDGMENT

Che Fourteenth (Gourt of Appeals

ANTHONY EARL WASHINGTON, Appellant NO. 14-13-00818-CR V.

THE STATE OF TEXAS, Appellee

This cause was heard on the transcript of the record of the court below. Having considered the record, this Court holds that there was no error in the judgment. The Court orders the judgment AFFIRMED.

We further order this decision certified below for observance.

*15

Affirmed and Memorandum Opinion filed May 12, 2015.

In The Fourteenth (Gourt of Appeals

NO. 14-13-00818-CR

ANTHONY EARL WASHINGTON, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court Harris County, Texas
Trial Court Cause No. 1373285

MEMORANDUM OPINION

The question in this case is whether the trial court reversibly erred when it made a preliminary ruling that appellant could be impeached with evidence of his prior convictions. Because appellant did not testify during his trial, the impeachment evidence was never actually admitted. Accordingly, we conclude that nothing was preserved for appellate review. Without reaching the merits of appellant's complaint, we affirm the trial court's judgment.

*16

BACKGROUND

Appellant was charged with aggravated assault with a deadly weapon. After the State produced its evidence and closed its case-in-chief, appellant moved for a Theus hearing to determine whether he could testify free from impeachment. The trial court granted the motion, and the hearing was held outside the presence of the jury.

During the hearing, the trial court was advised that appellant had a lengthy criminal record, which consisted of the following convictions: (1) a 2008 felony for possession of a controlled substance, (2) a 2007 felony for attempted assault of a family member, (3) a 1999 felony for injury to a child, (4) a 1992 misdemeanor for criminal mischief, (5) a 1992 felony for possession of cocaine, (6) a 1987 misdemeanor for assault causing bodily injury, (7) a 1986 misdemeanor for theft, (8) a 1985 misdemeanor for possession of marijuana, (9) a 1985 misdemeanor for escape, (10) a 1984 misdemeanor for DWI, (11) a 1983 misdemeanor for possession of a controlled substance, and (12) a 1983 felony for arson.

Appellant argued that many of these convictions were inadmissible as evidence. Starting with the 1999 felony for injury to a child, appellant argued that this conviction was similar to the charged offense, and that it should be excluded because of the risk of unfair prejudice. Appellant also emphasized that this conviction predated the charged offense by more than ten years. His argument invoked Rule 609(b) of the Texas Rules of Evidence, which provides that evidence of a remote conviction is inadmissible unless its probative value "substantially outweighs" its prejudicial effect.

Appellant made a similar argument with respect to his 1992 felony for possession of cocaine. He said that this conviction was remote and that it had no probative value. Appellant likewise argued that evidence of the 1983 felony for

*17

arson was inadmissible because it was too remote. Without addressing the felonies from 2008 or 2007, appellant argued that the remaining offenses should be excluded because they are misdemeanors and do not involve crimes of moral turpitude.

The State responded that it would not elicit testimony of any misdemeanors in the event that appellant decided to testify. As to the felonies, however, the State argued that evidence of these convictions was admissible. The State acknowledged that the felonies from 1999 and 1992 were remote, but the State explained that they could be "tacked" onto the recent felonies from 2008 and 2007. By referencing this tacking doctrine, the State believed that admission of the evidence was governed by Rule 609(a), which provides that evidence of a conviction is admissible if its probative value simply "outweighs" its prejudicial effect. The State indicated that this standard was met. The State did not specifically address the 1983 felony for arson.

The trial court agreed with the State and held that the tacking doctrine applied. The court then used the standard under Rule 609(a) and found that evidence of each of appellant's felonies was admissible because its "probative value does outweigh the potential for prejudice." The court also determined that the 1986 misdemeanor for theft was admissible because it was a crime of moral turpitude. With these rulings, appellant elected not to testify. He made no proffer as to what his testimony would have been had the trial court allowed him to testify free from impeachment.

ANALYSIS

Appellant correctly argues that the trial court applied the wrong standard. In Leyba v. State, this court held that Rule 609(b) supplanted the tacking doctrine, meaning that tacking is no longer permitted. See 416 S.W.3d 563, 569 (Tex.

*18 App.-Houston [14th Dist.] 2013, pet. ref'd). We clarified that if the State intends to impeach a witness with evidence of a conviction that is at least ten years old, then the State must show that the probative value of that evidence "substantially outweighs" its prejudicial effect. Id. In Meadows v. State, the Court of Criminal Appeals embraced this analysis and held that Rule 609(b) provides the exclusive standard for admitting evidence of a remote conviction. See 455 S.W.3d 166, 171 (Tex. Crim. App. 2015).

But even though the trial court applied the wrong standard during the Theus hearing, its ruling was just in limine. See Luce v. United States, 469 U.S. 38, 40 n. 2 (1984) (describing an in limine motion as "any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered"). The court did not admit any evidence of appellant's prior convictions during the trial itself.

A trial court's ruling in limine is preliminary only and it preserves nothing for appellate review. See Geuder v. State, 115 S.W.3d 11, 14-15 (Tex. Crim. App. 2003). Courts have consistently held that the defendant must testify to preserve any complaint that the trial court erroneously admitted evidence of a prior conviction. See Luce, 469 U.S. at 43; Jackson v. State, 992 S.W.2d 469, 479-80 (Tex. Crim. App. 1999). Without the defendant's testimony, a reviewing court would be forced to speculate about (1) the precise nature of the defendant's testimony, (2) whether the trial court's ruling would have remained the same or would have changed as the case unfolded, (3) whether the State would have sought to impeach the defendant with the prior conviction, (4) whether the defendant would have testified in any event, and (5) whether any resulting error in permitting the impeachment evidence would have been harmless. See Jackson, 992 S.W.2d at 479.

*19

Appellant acknowledges in his brief that his failure to testify waives error, but he asks that we "reexamine this blanket rule" because we can be reasonably sure of how he would have testified and what evidence the State would have used to impeach him. We decline appellant's invitation. We are in no position to "reexamine" binding authority from a higher court. We conclude that appellant failed to preserve error.

CONCLUSION

The trial court's judgment is affirmed.

Panel consists of Justices Christopher, Donovan, and Wise. Do Not Publish - Tex. R. App. P. 47.2(b).

*20

Ciba&;

Cevict of Criminal Afterbeb

*21

ED Provider Notes signed by Brian D Vu, Resident at 01/09/13 0024

Author: Brian D Vu, Resident Service: (none) Author Type: Resident Filed: 01/09/13 0024 Note: $01/08/13.2353$ Time: Related Original Note by: Katherine M Slimp, PA filed at 01/09/13 0005 Notes: Procedure Orders:

1. Laceration Repair [134533372] ordered by Brian D Vu, Resident at 01/09/13 0022

History

Chief Complaint Patient pressure with Lacerations upper lip. Bleeding controlled. AOX3. Denies LOC

HPI Comments: 23yo with no known medical history presents to the ED complaining of laceration to her upper lip. Pt states someone through a brick at her face cutting her lip. Pt states this accident happened 1 hour ago. She denies: LOC, head trauma, n/v/d/c, dizziness, tooth injury, bleeding, cp, sob. She had her tetanus shot 2 years ago. Patient is a 23 y.o. female presenting with skin laceration. The history is provided by the patient. Lacerations The incident occurred less than 1 hour ago. The laceration is located on the face. The laceration is 2 cm in size. Injury mechanism: brick. The pain has been constant since onset. She reports no foreign bodies present. Her tetanus status is UTD.

No past medical history on file. No family history on file. Review of Systems Constitutional: Negative for fever, chills, diaphoresis, appetite change and fatigue. HENT: Positive for facial swelling Negative for congestion, rhinorrhea, trouble swallowing, neck pain, dental problem and voice change Respiratory: Negative for cough and shortness of breath. Cardiovascular: Negative for chest pain. Gastrointestinal: Negative for nausea, vomiting, abdominal pain and diarrhea. Musculoskeletal: Negative for back pain. Skin: Positive for wound. Negative for color change, pallor and rash. Neurological: Positive for headaches. Negative for dizziness, weakness and light-headedness.

Physical Exam

BP 137/94 | Pulse 69 | Temp 98.2 °F ( ${36.8}^{\circ }C$ ) | Resp 18 | SpO2 99\% | LMP 12/27/2012 Physical Exam Nursing note and vitals reviewed. Constitutional: She appears well-developed and well-nourished. HENT: Head: Normocephalic and atraumatic. Mouth/Throat: Lacerations present. No oropharyngeal exudate, posterior oropharyngeal edema or posterior oropharyngeal erythema.

*22

Brian D Vu, Resident

Resident 01/09/13 0024 ED Notes signed by Patrice Nicola Miller, RN at 01/09/13 0008 Author: Patrice Nicola Miller, Service: (none) Author Type: Registered Nurse RN Filed: $01/09/130008$ Note: $01/09/130000$ Time: QMP at bedside to suture laceration

Patrice Miller BSN, RN
ID # 125180

ED Provider Notes signed by Katherine M Slimp, PA at 01/09/13 0005 Author: Katherine M Slimp, Service: (none) Author Type: Physician's Assistant PA Filed: $01/09/130005$ Note: $01/08/132353$ Time: Related Addendum by: Brian D Vu, Resident filed at 01/09/13 0024 Notes: Procedure Orders:

1. Laceration Repair [134533372] ordered by Brian D Vu, Resident at 01/09/13 0022

History

Chief Complaint

Exercises

• Lacerations
• upper lip. Bleeding controlled. AOX3. Denies LOC

HPI Comments: 23yo with no known medical history presents to the ED complaining of laceration to her upper lip. Pt states someone through a brick at her face cutting her lip. Pt states this accident happened 1 hour ago. She denies: LOC, head trauma, $n/v/d/c$ , dizziness, tooth injury, bleeding, cp, sob. She had her tetanus shot 2 years ago. Patient is a 23 y.o. female presenting with skin laceration (The history is provided by the patient Lacerations The incident occurred less than 1 hour ago. The laceration is located on the face. The laceration is 2 cm in size. Injury mechanism: brick. The pain has been constant since onset. She reports no foreign bodies present. Her tetanus status is UTD.

No past medical history on file. No family history on file. Review of Systems. Constitutional: Negative for fever, chills, diaphoresis, appetite change and fatigue. HENT: Positive for facial swelling Negative for congestion, rhinorrhea, trouble swallowing, neck pain