Case Information

*1

No. 729-15

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

JAMES A. BROWN $-VS-$ THE STATE OF TEXAS

ON PETITING FOR REVIEW FROM THE THIRD COURT OF APPEALS TEXAS, AUSTIN, TRAUIS CLOSE NO. 03-13-00760-CR

APPEALED FROM THE 3315t EXSTRET OF TRAUIS COURTY IN CLOSE# D-HDC-13-300630 BEFORE SUSTICES PURYEAR, PEMBERTON, ALD BOURLAND AFTERMED--OPLING BY SUSTICE PURYEAR COURT OF CRIMINAL APPEALS AUG 122015

Abe! Acosta, Clan FILED IN COURT OF CRIMINAL APPEALS 1312222

Abel Acosta, Clerk

NO ORAL ARGUMENT RESESTED

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IDENTITY OF PARTIES

APPELLANT: JAMES A. BROUCH TBCS-ID 1843446 1313 COWITY ROAD 19 LAMESA, TX 79331

APPELLEE: TRAUIS COWITY DISTRICT ATTURNEY'S OFFICE

APPELLE'S COWSEL: ROSEMARY LEHMBERG OFFICE OF THE TRAUIS COWITY DISTRICT ATTORNEY APPEAL DEVISION P.O. BOX 1748

AUSTIN, TEXAS 78701

*3 TABLE OF CONTENTS IbEJTTTY OF PARTIES (1) TABLE OF CONTENTS (1) TABLE OF AUTHORITIES (1V) STATEMENT OF JURISDICTION (1X) STATEMENT OF CASE (ix) STATEMENT OF ISSUES PRESENTED

I. DID THE APPELLATE COURT EAR WHEI IT DETERMINED LEGALLY SUFFICIENT EUIDEWKE TO CONVICT APPELLANT FOR THE OFFENSE OF RETALIATION) AIRSUANT TO TEXAS PENAL CODE &; 360,000 ?. STATEMENT OF FACTS 2 SUMMARY ARGUMENT ARGUMENT II. DID THE APPELLATE COURT EAR. WHEI IT RULED APPELLANT'S MOTION TO QUASH INDICTMENT WAS ONLY AN ORAL MOTION WHEN A PRO SE WRITER MOTION HAD ALSO BEEN FILED? STATEMENT OF FACTS 12 SUMMARY ARGUMENT ARGUMENT II. DID THE APPELLATE COURT EAR WHEI IT OVERLLD APPELLANT'S CLARM OF EJFFECTIVE ASSISTANCE OF COWSEL? STATEMENT OF FACTS SUMMARY ARGUMENT (1)

*4 AfeuME, ST PRAYER CERTIFICATE OF SERVICE $\because \because \because 27$

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INDEX OF AUTHORITIES

FEDERAL CASES

AUDER 50 N V. HARLESS 459 u.S. 4,6,103 S.Ct. 276,74 L.Ed. 3 (1992)

BRADY V. MARYLAND 373 u.S. 83, 87 (1963) . . . . . 17 BROOK V. TEXAS, 381 F. 2 d 619 (5th CIR.1967) . . . . 22 BROWN V. ALLEN, 344 u.S. 443,502,97 L.Ed. 469,73 S.Ct. 397 (1953) BULLCOMLNG V. NEW MEXECO, 564 u.S. (2011) . . . 23 CALDWELL V. MISSISSIPPI, 472 u.S. 320, 86 L.Ed. 231,105 S.Ct. 2633 (1995) . . . . . . . . . . 25 CARRIER V. HUTTO, 724 F. 2 d 396 (1995) . . . . . 23 CARuSO V. 2ELSWSKY 689 F. 2 d 439 (3rd CIR. 1992) . . . 20 CHAMBERS V. MISSISSIPPI, 410 u.S. 284,93 S.Ct. 1038 (1973) CRawford V. WASHINGTON, 541 u.S. 36 (2003) . . . . 24 ENRIQUEZ V. PROCWVER, 752 F. 2 d 111,114 (5th CIR.TEX. 1984); CERT. DEVIED, 471 u.S. 1126 (1995) . . . . . . . 16 EutTTS V. LUCEY, 469 u.S. 387, 396, 83 L.Ed 821,105 S.Ct. 830 (1995) . . . . . . . . . . . . . . . . . . . . . 26 GIDEON V. WASHWRIGHT 372 u.S. 335, 339, 344,9 L.Ed. 2d. 799, 802, 805, 83, S.Ct. 792,93 A.L.R. 2d 733 (1963) . . . 26 GLOWER V. WITED STATES, 534 u.S. 198, 203-204, 121 S.Ct. 696, 148 L.Ed. 2 d 604 . . . . . . . . . . . . . . . . 20 HICKS V. WASHWRIGHT, 633 F. 2 d 1146, 1148 (5th CIR. FRA. 1981) HILL V. LOCKHART, 474 u.S. 52 (1995) . . . . . . 21

*6 JAMES V. KENTUCKY, 466 u.s. 351,104 s.c.t. 1830,80 c.Ed. 2d 346 (1984) $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ 17 LAFLER V. COOPER, 132 s.Ct. 1376 (2012) $·$ $·$ 21 MELENDEZ-DIAZ V. MASSAEHUSETTS, 577 U.S. - 2009 $·$ $·$ 23 MISSOURI V. FRYE, 132 S.Ct. 1399 (2012) $·$ 21 MOORE V. CZERWIAK, No. 04 - 15713, U.S. (9th CIR. 2009) $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ 21 OSBOFWE V. OHIO, 495 u.s. 103, 122 - 125,110 s.Ct. 1691,109 L.Ed. 2d 96 (1990) $·$ $·$ $·$ $·$ $·$ $·$ $·$ 14 PEDRERO V. WAGWWRIGHT, 590 F. 2 d 1383,1390 (5th CIR. [FLAZ 1979) $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ 16 SCHLUP V. DELO 513 u.s. 298,327 (1995) $·$ 9 STRICKLAND V. WASHINGTON 466 U.S. 668,104 s.c.t 2052, 90 L.Ed. 674 (1984) $·$ $·$ $·$ $·$ $·$ $·$ 19,22,25 THOMAS V. BETO, 423 F. 2 d 642 (5th CIR.1970) $·$ 26 TOLLETT V. HENDEZSON 411 U.S. 298,327 (1973) $·$ 19 UWITED STATES V. BAGLEY 473 U.S. 667 (1985) $·$ 17 UWITED STATES V. DECOSTER, 159 U.S. APP. D.C. 326,487 F. 2 d 1197 (1973) $·$ 26 UWITED STATES V. OROZCO - SAUTILLAN, 903 F. 2 d 1262, 1265 (9th CIR.1990) $·$ 5 WEAVER V. MCKASKLE, 733 F. 2 d 1103,1104 (5th CIR. [TEXZ 1984) $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ $·$ 16 WOOD V. ALLEN 130 s.Ct. 841 (2010) $·$ 22

*7 STATE CASES ABDWOR V: STATE, 871 S.W. 2d 726,738 (TEX.CR.APP. 1944) . . . 17 ALMANZA V: STATE, 686 S.W. 2d 157, 174 (TEX.CR. APP. 1984) . . . 4 ARIZUE V: STATE, 721 S.W. 2d 348,351 (TEX.CR. APP 1986) . . . 5 Blue V: STATE, 41 S.W. 3d 129 (TEX.CR. APP. 2000) . . . 22 BODZER V: STATE 717 S.W. 2d 608 (TEX.CR. APP. 1989) . . . 11 BR00K V: STATE, 323 S.W. 3d 893, 895 (TEX.CRTA. APP. 2010) . . . 2,11 ButLER V: STATE 716 S.W. 2d 48, 54 (TEX.CR. APP. 1986) . . . 20 COOK V: STATE, 902 S.W. 2d 471, 475-76 (TEX.CR. APP. 1945) . . . 15 CORMIER V: STATE, 955 S.W. 2d 161, 163-164 (TEX. APP., ALSTIN 1997 . . . 19 DELGIADO V: STATE 235 S.W. 3d 244, 252-253 (TEX.CR. APP. 2007) . . . 16

DOYLE V: STATE 661 S.W. 2d 726 (TEX.CR. APP. 1983) . . . 8 DRUMM V: STATE, 560 S.W. 2d 944 (TEX.CR. APP. 1977) . . . 13 DUE V: STATE, 634 S.W. 2d 304, 305 (TEX.CR. APP 1986) . . . 13 EX PARTE AXEL 757 S.W. 2d 369 (TEX.CR. APP. 1998) . . . 26 EX PARTE DUFFY, 607 S.W. 2d 507, 516 (TEX.CR. APP. 1990) . . . 22 EX PARTE LEMKE, 13 S.W. 3d 796 (TEX.CR. APP. 2000) . . . 21 EX PARTE WELBOAD 785 S.W. 2d 341 (TEX.CR. APP. 1990) . . . 20 EX PARTE WOODS, 176 S.W. 3d 224 (TEX.CR. APP. 2005) . . . 23 EX PARTE VARELAS, 45 S.W. 3d 627, 630 (TEX.CR. APP 2001) . . 20 FRANGIAS V: STATE, 342, S.W. 3d 642, 653 (TEX.CR. APP. 2013) . . 26 Grouan V: STATE, 671 S.W. 2d 660, 663 (TEX. APP. HOUSTON [IST DEST] 1984, PET. REF. 10 HUIZAR V: STATE, 12 S.W. 3d 479, 483 (TEX.CR. APP. 2000) . . . 19 JEFFEZS V: STATE, 646 S.W. 2d 185 (TEX.CR. APP. 1981) . . . 13 (Vi)

*8 MEVER U. STATE, 360 S.W. 3d 728 (TEX. APP. - TEXARKANA 2012). 9 MONTGOMERY V. STATE, 810 S.W. 2d 372, 388-389 TEX. CR. APP. 1991). 24

MOORE V. STATE, 531 S.W. 2d 140 (TEX. CR. APP. 1976). 8 MORENO V. STATE, 858 S.W. 2d 453, 403 TEX. CR. APP. 1993, CERT. DEMJED, 510 U.S. 960 (1993). 10 MEL SOW V. STATE 149 S.W. 3d 175 (TEX. CR. APP 1976). 20 PEKE V. STATE, 758 SW 2d 357, 362 (TEX. APP., WACO 1998 PET. REF. . 10

REYNOLDS V. STATE, 547 S.W. 2d 540, 541-542 (TEX. CR. APP. 1976). 4 RODGRERS V. STATE, 180 S.W. 3d 716, 724 TEX. APP. WACO 2005, MD. PET. H.) 19

RODRIQUEZ V. STATE, 340 S.W. 2d 61 (TEX. CR. APP. 1960). 20 STATE V. ROBENSON 334 S.W. 3d 776 (TEX. CR. APP. 2011). 23 SWADADO V. STATE, 547 S.W. 2d 361, 364 (TEX. CR. APP 1980). 14 TEMPLE V. STATE, 14 -08-00074 CR TEX. APP. - HONSTON (4th DIST) 2011 NO PET.) 11 THOMPSON V. STATE 9 S.W. 3d 808, 813 (TEX. CR. APP. 1994). 25 TEPPINS V. STATE, 530 S.W. 2d 110,111 (TEX. CR. APP. 1975). 10 WHITING V. STATE, S.W. 2d 45, 48 (TEX. CR. APP. 1990). 17 RULES, CONSTITUTION, ARTICLES GIOVt. C. 3 508.149 . 14,25 PEN. C. 8 1.03 (d) 4 PEN. C. 8 1.07 (d)(1). 4 PEN. C. 8 1.07 (d)(2). 4 (vil)

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*10 STATEMENT OF CASE THIS IS AN APPEAL FROM THE 3315t SubtCIAL DISTRICT WHERE TRIAL COMMERJCED WITH NO PRETRIAL MOTIONS BEING CONSIDERED BY TRIAL COURT, UPON ORAL AND WRITTEN REAWEST BY BROWN PRO SE. BROWN ELECTED TO EO TO TRIAL BY BEACH. FOR GUULT/INNOCEIVE AND PHILISHMENT, HE WAS CONJUSTED ON THREE COWITS OF RETALIATION OCTOBER 23, 2013 WITH PHILISHMENT ASSESSED AT IS YEARS IN PRISON ON EACH COWNT, SERTENCES TO RUW CONCURENTLY. BROWN FILED A PRO SE MOTION FOR NEW TRIAL NOVEMBER 1, 2013; HIS ATTORNEY FILED MOTION FOR NEW TRIAL OCTOBER 31, 2013 AND THESE MOTIONS WERE BEATED BY OPERATION OF LAW. BROWN FILED A PRO SE MOTION FOR FREE APPELLATE RECORD, NOTICE OF APPEAL, MOTION FOR APPIRITMENT OF APPELLATE COWSEL NOVEMBER 9, 2013. APPELLATE COWSEL WAS APPROVEDD JANUARY 10, 2014. APPELLATE COWSEL FILED A MOTION TO ABATE APPEAL DECEMBER 24, 2014 AND A SUBSEQUENT APPELLANT'S BRIEF DECEMBER 28, 2014. THIRD COURT OF APPEALS ISSUED SUBGMENT ON MAY 12, 2015 UIA MEMORANDUM OPIMION BEFORE SUSTICES RURYEAR, PEMBERTON AND BOURLAND AFPIRMIUS, THE TRIAL COURTS SUBGMENT AND BEWYING MOTION TO ABATE. OPIMION WAS NOT PUBLISHED.

STATEMENT OF JURISDETION JURISDETION OF THIS COURT IS INVORED WEBER RULES 4.03, 4.04 OF TEXAS CODE OF CRIMINAL PROCEDURE; TEX. P. APP. PROC. 69; AND THE 14th U.S. CONST. AMEND.

*11 NO. $$ IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS

SAMES A. BROWN $US$ . THE STATE OF TEXAS

AMENDED PETITION FOR DISCRETIONARY REVIEW TO THE HOWORABLE SUDGIES OF THE COURT OF CRIMINAL APPEALS:

COMES NOV JANES BROWN, PRO SE, AND FILES THIS AMENDED (PDR) IN APPEAL OF THE APPELANDG OF HIS CONVITIOUS BY THE THIRD COURT OF APPEALS, AND SUPPORT OFFERS, THE FOLLOWING: STATEMENT OF ISSUES PRESENTED FOR REVIEW I. DID THE APPELLATE COURT EAR. WHEN IT DETERMINED THERE WAS LEGALLY SUFFICIENT EUIDEUKE TO CONVITT APPELLANT FOR THE OFFERSE OF RETALIATION PURSUANT TO TEXAS PENAL CODE 336.06 ?

ID. DID THE APPELLATE COURT EAR WHEN IT RULED APPELLANT'S MOTIG TO GUASH INDIETMENT WAS ONLY AN ORAL MOTION WHEN A PRO SE WRITED MOTION HAD ALSO BEEN FELED?

IIR. DID THE APPELLATE COURT EAR WHEN IT OVERRULED APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COWSEL?

*12 I. DID THE APPELLATE COURT EER WHEN IT DETERMINED THERE WAS LEGAL SUFFICIENT EVIDENCE TO CONVIC APPELLAUT FOR THE OFFENSE OF RETALIATION PURSUNUT TO TEXAS PENAL CODE 8 360.000? STATEMENT OF FACT THE APPELLATE COURT, COURT OF APPEALS (C.O.A) REST IT'S OPIJION ON THE INDICTMENT IN THIS CASE, THAT BROWN DID THEW AND THESE INTENTIENALLY OF KNOWIGGly THEATES) EOSERM LAVEY, AND DYAR "BY AN WILANFUL ACT, TO-WIT? ASSAULT AND AUGRAVATED ASSAULT... IT FURTHER STATES THE THREATENED HARM DOESWY HAVE TO BE "IMMINENT" MOREOVER,(GAA) CITES BROOK U. STATE, 323 S.W. 3d 843, 945 (TEX. CR.AFF. 2010) EXPLAXING THAT "IT DO NOT REVIEW FATHAL SUFFICIENCY OF THE EUIDENCE TO SUPPORT A JURY'S FUDSING ON ELEMENTS OF A CRIMINAL OFFENSE THAT THE STATE IS REAWERED TO PRWE BEYOND A REASONABLE DOWBST."

SUMMARY ARGUMENT EVERYTHING SHOULD BE STATED IN AN INDICTMENT WHICH IS NECESSARY TO BE PROVID. THE ACT, BY LAW, WHICH IS DECLARED A CRIMINAL OFFENSE, MUST BE SET FORTH IN PLAN AND INTELLIGIBLE WORDS. AND WHERE A DEPENDANT'S CONDUCT IS PROHIBETED WIDER A GENERAL STATURE AND A SPECIFIC STATURE AND BOTH STATUTES HAVE THE SAME GENERAL RURPOSE, THE DEPENDANT MUST BE CHARGED WIDER THE SPECIFIC STATURE. THE GREATER THE INVASION OF PIGHTS BY THE GOVERNMENT, THE GREATER THE AMOUNT OF EUIDENCE REAWERED TO SHOUL GOOD REASON FOR DEVYING THOSE PIGHTS. THE RURPOSE IS TO MINIMIZE THE PASSIBILITY OF EERER,

*13 Especially as the stakes for the individual increase. Furthermore, Pen. C. $36.06$ IS unconstitutionally applied to Brown Because he is actually involved and Because there is no proof beyond a reasonable doubt that he thereates to Blarin anyone with "absant" or "aGG. Absant" and in the interest of justice to prevent the miscarriage justice, Brown purposes the fundamental process entitled to the accused absent from hypothetical theories and discriminating generalities on figurative speech that show no unravel act. Criminal cases are tried when the Beyond A reassured Doubt Asian, not the clear and convincing Asian.

ARGUMENT Brown guides this court's consideration pursuant texts rule of APPELATE procedure (T.R.A.P) 66.3; T.R.A.P 56.1(a) and 61.1(a)(b) In deciding whether to garant disorder theory REVIEL with ANb 14th u.s. const. AMEND. utolation's rise from fundamental defects in the indirect work, DID THEY ANb there INTENTIONally or knowingly thereates" JOSEPH, LAMEY, DYAR BY AN' UNLAWELL ACT, TO-WIT'S ASSAULT ANb AGGRAVATED ASSAULT, AND IN RETALIATION FOR OR ON ACCOUNT OF THE SERVICE OF STATUS OF SOSEPH, LAMEY, DYAR AS A Public servant. THE indirectment when read, As a whole, clearly DID NOT LIMIT THE APPLICATION OF THE REAWERd MEistal states to the result's of the coubuct. THE CHARGE IS misleading when omits the statutory element "HARM", a element which IS weCessary to move gHULT ANb authorize a conviction. THE STATuTORY WORD "HARM" HAS A TECHNICAL MEANSNG UNDER

*14 PEN. C. 31.07 (2)(25) AND MUST NOT BE OMITTED, NOR HAVE EOUIVALENT, OF SUBSTITUTE WORDS, SEE PEN. C. 31.03 (2) EFFECT OF CODE. EACH AND EVERY ELEMENT MUST BE PROPERTY PLEAD FOR INDECTMENT TO ALLEGE OFFENSE. REYNOLDS V. STATE, 547 S.W. 2 d 590, 591-592 (TEX.CR.AP.1976). THE INDECTMENT FURTHER READS "BY AN WILAWFUL ACT, TO-WIT'S ASSAULT AND AGGRAVATED ASSAULT"T TECHNICAL MEANING FOR "WILAWFUL" PEN. C. 31.07 (2)(49) AND THE MEANING OF "ACT" ID. 31.07 (2)(1).

IN APPLYING "ASSAULT" as a [FACT] OF AN WILAWFUL ACT WE MUST EXPAND THE SCOPE OF TEX.PEN.C. 322.01 TO ITS MANY SUBSECTIONS. IN THIS HYPOTHETICAL STHATING BELOW WILL ASSUME THE COURT'S BELOW BASED ITS DECISION ON 22.01 (2)(2) INTEUTIAGALLY OR KNOWINGLY THREATEN'S ANOTHER WITH "IMMINEENT" BODILY INJURY...; THE TERM IMMINENT MEANS ABOUT TO HAPPEN AND THE TERM BODILY INJURY MEANS ID. 31.07 (2)(8). IT WOULD BE IMPROPER TO APPLY STATUTORY ELEMENTS OF RETALIATION 336.06 TO STATUTORY ELEMENTS OF 22.01 AND READER A GUILTY VERbICT.

IN VIEWING PEN.C. 322.02 AGGRAVATED ASSAULT IN ITS HYPOTHETICAL 22.02 (2)(1)(2) SCOPE, IT WOULD IMPROPERY APPLY STATUTORY ELEMENTS OF 36.06 TO STATUTORY ELEMENTS OF 22.02 TO SUPPORT A CONVICTION.

IN VIEWING THE ENTIRE RECORD AS PESWERED BY ALMANZA V. STATE 696 S.W. 2d 157, 174 (TEX.CR.AP.1989). THE ACTUAL DEGREE OF HARM MUST BE ASSAYED IN LIGHT OF THE ENTIRE JURY CHANGE, THE STATE OF THE EVERENCE, INCLUDING CONTESTED

*15 ISSUES AND WEIGHT OF PROBATIVE EVIDENCE, THE AEGUMENT OF CONVSEL AND ANY OTHER RELEVANT INFORMATION REVEALED BY THE RECORD AS A WHOLE. ARLISE V. STATE, 721.5 . W, 2d 348, 351 (TEX.CR.APP. 1986). WHETHER A PARTICULAR STATEMENT MAY PROPERLY BE CONSIDERED TO BE A THREAT IS GOVERIED BY AN OBJECTIVE STANDARD - WHETHER A REASONABLE PERSON WOULD FORESSEE THAT THE STATEMENT WOULD BE INTERPRETED BY THOSE TO WHEN THE MAKER COMMUNICATES THE STATEMENT AS A SERIOUS EXPRESSION OF INTEUT TO HARM OR ASSAULT. SEE UNITED STATES V. OROZCO-SANTILLAN, 903 F. 2d 1262,1265 (9th CIR. 1990). WHAT WAS ALLEGEDLY SAID IS VITAL. THE THREE COMPLAINANT TESTIFIED TO INCONSISTANT ACCUSATIONS.

DYAR - HE STARTED SCEEAMING AT US, THAT HE WOULD GLET THE ELECTRIC CHAR FOR WHAT HE DO, THAT HE KNEW WHERE THEY LIVED, THAT HIS LIFE WAS OVER, AND THE STATE WOULD NOT GET HIS OTHER DAGGHTER. (RR.P.IT, LINES 4-6; RR.P.21,LINE 24);(RR.P.22, LINES 1-5). SHE ALSO SAID BRANN DID NOT THREATEN THEM SPECIFICALLY BY SAVING THEIR NAME. (RR.P.22, LINES 24-25; RR.P. 24, LINES 1-2), AND THAT HE NEVER SAID I'm COmING -- AND HE WAS EXPRESSING HIS GRIEF (RR.P.30, LINES 24-25; RR.P.31, LINES 1-2);(RR.P.31, LINES 14-15 & 23-25).

LAVEY - BRANN BEGAW MAKING THREATS THAT "APPEARED" TO BE DIRECTED AT THE THREE OF THEM BECAUSE HE WAS LOOKING DIRECTLY AT US (RR.P.39, LINES 24-25; RR.P.39, LINES 1-3) WHEN HE REPEATEDLY SAID "I DANT CARE IF I GET THE ELECTRIC CHAR," I KNOW WHERE YOU LIVE, "LET THEM ARREST ME."(RR.P.39, LINES 13-14).

*16 Joseph - Brown began mattering I know where you live... I Got D and E so aktanMy [Brown's other daughter] is Gene... My wife is over, I'm going to get the effectrict char (RR.P. 57, Lines 16-8);(RR.P. 60, Lines 19-23);(RR.P. 61, Lines 20-23 & P. 62, Lines 1-6. She says that he looked right at her as he uttered those words. three bePutes and Brown testified to different accounts. DePutY sGene - Brown speech became more elevated at the labies appearance outside the counterroom and said 'I can't Live without my kids" And I know where you work" (RR.P. 80, Lines 2-6 & Lines 9-11). But Believed He was talking to His mother as that is who he was looking at, but "he was talking, and enough to where everybody could hear" (RR.P. 82, Lines 7-9, Lines 20-22, Lines 4-6).

DePutY Afsold - the comPlatmanto told her Brown said I know where you live," But that she herself had not heard him sAY that (RR.P. 98, Lines 16-22). She sAYs that Brown was looking at everyone in the Hallway not just BReun's accusers (RR. 98, Lines 3-4; RR.P. 90, Lines 1-5).

DePutY bucal - overheard Brown sAY "I'm not afraid of being," But did not hear BRaun sAY "I know where you live." (RR.P. 92, Lines 6-14). He heard no threats and felt Brown shouldn't have been affected. (RR.P. 92, Lines 15-21). He also heard BRaun sAY "he wasn't afraid of the effectrict char" (RR.P. 93, Lines 7-9 & Lines 19-21).

*17 BROWN - THAT HE WAS TALKING TO HIS MOTHER ABOUT FELING A LAW SNTT, SAVING "WHEN I FILE THEY'RE GOING TO GIVE ME THE ELECTRIC CHAIR WHEN I'm DOME"; (RR.P. 95, LINES 15-21) NEVER SPACE OF HARMING ANYONE. NEVER SAID "I KNOW WHERE YOU LIVE" (RR.P. 96, LINES 11-14); 3. NEVER SAID "I AM NOT AFRAND OF DYING, "I'm COMING FOR YOU" OR WHEN I COME TO YOUR HOUSE THEY'LL ARREST ME." (RR.P.96, LINES 20-25; RR.P.97, LINES 1-4). But DID SAY MY LIFE IS OVER IF MY KIDS ARE GOVER, THEY TOOK MY BABIES (RR.P. 96, LINES 17-19). THE COMMENT REGARDING THE ELECTRIC CHAIR, HE ADMITTED TO SPEAKING FIGURATIVELY (RR.P.98, LINES 6-10). AS HE STOKE, HE NEVER LOOKED AT HIS ACCESSERS (RR.P.103, LINES 6-10).

BRaw will ABandon the theory that the state rested it's verdict on any alleged statements other than the many versions of the electric chair comment because (1) the EvibEyCE IS so conflicting AND AMBIGUEDUS THAT HE WOULDNT KNOW WHICH ONE THE STATE RELIED ON FOR PROSECUTION; 2) the subjectment fails to alleGE the nature; MANNER, OR MEAN'S OF RETALIATION, ASSAULT, AND ARG. ASSAULT; 3) THERE IS REASONABLE DOUBT THAT BRaw WAS TALKING "ABOUT" OR "TO" EACH OF HIS ACCESSERS; 4) BROWN TESTIFIED TO MAKING THE ELECTRIC CHAIR COMMENT, REGARDING IT TO A LAW SNTT; 5) THE STATE OFTSEED DIRECT VERDICT ASSEXING THE EVIDEYCE SNOW BRaw THREATEN ASSAULT AND ARG. ASSAULT WHEN HE SAID HE WOULD GET THE ELECTRIC CHAIR (RR.P. 70, LINES 21-25; RR.P.71, LINES 1-4); 6) CREDIBLE WITNESSES TESTIFIED THAT THEY HADWT HEARD THE ALLEGED SEEME STATEMENTS THE ACCESSERS CLATMED BRaw MADE AND THAT HE WAS SPEAKING LOUdly TO HIS MOTHER WHILE LOOKING AT

*18 EVERYBODY; 7) BEOWW BEUTED MAKEING MOST OF THE STATEMENT'S HE IS ACcUSED OF AND THAT HE WAS TALKING TO HIS WOTHER.

THE MEASURING OF BEOWW'S STATEMENT SHOULD ONLY BE INTERPRETED BY CONSIDERING, THE CONTEXT IN WHICH IT IS MADE. THEREFORE, WHILE ONE CERTATALLY THREATEN'S HARM IF HE THREATEN'S TO CAUSE SOMEONE BODILY IN SURY, A THREAT OF PHYSICAL IN SURY IS NOT REQUIRED, HOWEVER, TO CONSTITUTE ASSAULT AND AGE. ASSAULT, AS IN THIS CASE, WHERE THE STATE IS BOWND BY ITS ALLEGATIONS IN THE INDICTMENT AND MUST PROVES THEM BEYOND A REASONABLE DOWBST, [PROORE V. STATE, 531 S.W. 2d 140 (TEX.CR.APP.1976)] THE CAPABILITY TO CARTY OUT THE THREAT IN THIS TYPE OF OFFENSE IS ESSENTITALLY NECESSARY WHEN FOLLOWING THE LANGUAGE OF 22.01 (a) AND 22.02 (d)(1)(2). SEE 5 ALR 5th 243, SUfFICIENCY OF BODILY IN SURY TO SUPPORT CHARGE OF AGE. ASSAULT. FUTHER MORE, IN OROZCO-SAUTILLAN, TELEPHONE COMMUNICATION, "YOU MOTHER F—ER, YOU WILL PAY FOR THIS," WAS A THREAT, IN CONTEXT OF EARLIER CONDITIONAL THREAT AT TIME OF ARREST, "TAKE THESE HANDCUFFS OFF AND I'LL KICK YOUR F—ING ASS," IN DOYLE V. STATE, W6I S.W. 2d 726 (TEX.CR.APP. 1983), THE WORDS, "WHEW I GET OUT OF HERE I WILL JUST HAVE TO GET A GUW," ARE ALOVE IN SUFFICIENT PROOF OF A THREAT TO KILL. NO REASONABLE PERSON WOULD HAVE INTERPRETED SUCH A STATEMENT, GIVE ME THE ELECTRIC CHARR, ON ITS 2, THAT IS, IN ITS MANY VERSOUS, AS A THREAT OF HARM INTEXIAJALLY COMMUNICATED, TO SOSEPH, LAVEY, OR DYAR AS THE RECIPIENT OF A IMPRIED IN SURY BECAUSE HE IS IN A HALLWAY LOOKING AT EVERYONE MEUTTENING WO OWE BUT LOUD EVERGYN FOR EVERYONE TO HEAR.

*19 WOR CAN IT BE INTERPRETED AS A SERIOUS EXPRESSION OF INTEXt TO THREATEN ASSAULT OR AGG. ASSAULT BECAUSE THERE IS NO SPOKEW WORDS OF INDIRECTLY EXPRESSED THREATS OF PHYSICAL DUSUARY CONTANJED IN VEJLED STATEMENTS TO IMPLY WULAWFUL ACTS OF "IMMUNENT" BODILY INJURY, THE CAUSE OF SERIOUS BODILY INJURY, OR DEATH WHEN VIEWED IN ALL THE CIRCUMSTANCES. THE THREAT HAS TO BE AN WILAWFUL ACT AND FILLNG A LAWSHIT ISN'T WILAWFUL. WAY MEYER V. STATE, 366 S.W. 3d 728 (TEX. APP. - TEXARKANA 2012). THE TEST IS WHETHER THE THREAT COMMUNICATED SUSTIFY FEAR BY AN ORDINARY HEARER, NOT WHETHER THREAT COMMUNICATED CAUSED A PARTICULAR PERSON TO ACTUALLY BECOME FEARFUL. THREE DEPUTIES, "ORDINARY HEARER'S," TESTIFIED THAT THE ALLEGED STATEMENTS DID NOT SUSTIFY FEAR WOR PROBABLE CAUSE TO ARREST BROWN.

ALLEGED THREATS SHOULD BE CONSIDERED IN LIGHT OF THERE ENTIRE FACtuAL CONTEXT JOCLUDING SURROUNDING EVENTS AND REACTION OF LESTEWERS. AS NEW PELIABLE EVIDENCE NOT PRESENTED AT TRIAL; IT IS MORE LIKELY THAN NOT THAT NO REASONABLE JUROR WOULD HAVE FOUND BROWN GUILTY (SCHLUP V. DELO 573 U.S.298, 327 (1995)] WHEN EVIDENCE SUBSEQUENT OF CRIMING TOTAL SURFACED IN CIVIL COURT CAUSE AT D-1-FM-12-006145 (SEE REPARETS RECORD OR TRIAL TRANSCRIPT), WHICH SHOWS TESTIMONY FROM THE DEPUTIES:

DEPUTY ARWOLD - IT DIDNT APPEAR BROWN WAS DIRECTING WHATEVER HE WAS SAYING TO ANY OF THE ATtOPTLEYs AND THAT HAD HE COMMITTED A CRIME SHE WOULD HAVE ARRESTED HIM. (V.3 RR.P. 15 ,LINE 15-25). SAYING THE COMPLAINANTS WHERE LANG HING

*20 ABOUT HEM SAYING HE WEEW WHERE THEY LIVED (V. 3 RR.P.16, LIVE 2-8); AND THAT SHE DIDWT FEEL THEY WERE SCARED AT ALL. (v. 3 RR.P.17, LIVE 19-25)

DEPUITY buCAW - SAID HE WOLLDWT HAVE HESTYATED AT ALL TO ARREST BROWN IF HE COMMITTED A CRITME (V. 3 RR.12, LIVES 22-25; RR.13, LIVES 1-6).

DEPUITY SLOWE - SAID HAD HE DONE AN OVERT ACT SHE WOLLD HAVE ARRESTED HEM AND THAT HE DIDWT DIRECT - - PHYSICALLY APPROACH HES ACCUSERS (V. 3 RR.P. 84, LIVES 15-25; RR.P. 85, LIVES 1-7). DIDWT HEAR CASEWORKERS TALKING AFTERMARDS BECAUSE SHE FOLLOWED BROWN AND IT WAS NORMAL TO DO THAT (V. 3 RR.P. 87, LIVES 9-10; 15-21)

THUS, AN EXTRADEOUS OFFERSE MAY GEMEFALLY BE CONSIDERED TO BE ANY ACT OF MISCONSINUT NOT SHOWN IN THE CHARGEOG DISTRUMENT THAT IS ALLEGED TO HAVE BEEN COMMITED BY THE DEFENDANT [PIKE V. STATE, 758 S.W. 2d 357, 362 (TEX.APP, WACO 1988, PET. REF)]. ALL THE ALLEGED STATEMENTS ARE EXTRADEOUS OFFERSES, IT IS IMPERMISSIBLE TO TIE BROWN TO AN EXTRADEOUS OFFERSE SOLELY BY IMPLICATION. SEE GOVAN V. STATE, 671 S.W. 2d 660, 663 (TEX.APP., HOUSTON [IS+ DIST] 1984, PET. REF.). EVIDENCE OF 22.01 AND 22.02 BY BROWN MUST SHOW A CRITME OR BAD ACT THAT IS CONNECTED TO HEM. MOREND V. STATE, 858 S.W. 2d 453, 463 (TEX.CR.APP. 1993), CERT. DEVIED, 510 U.S. 966 (1993). IT IS ERROR TO ADMOT EVIDENCE OF ANOTHER OFFERSE IF BROWN IS NOT SHOWN TO BE THE GUULTY PARTY OF THE OFFERSE. TIPPING V. STATE, 530 S.W. 2d 110,111 (TEX.CR.APP. 1975); SEE THOMPSON U. STATE

*21 Q15 S.W. 2d 760, 761 (TEX.CR.AP. 1981) REVERSED BECAUSED ELDERKE INSUFFICIENT TO SHOW DEFGINANT'S GUYLT OF EXTRAVEDUS OFFENSE.

IT ONE CLARM RELIES ON STATE LAW WHILE THE OTHER RELIES ON FEDERAL LAW, EVEN IT STATE PROVISION ARE SIMILAR OR IDEVITICAL [ANDERSON V. HARLESS 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed. 2d 3 (1982) PER CURTAM, STATE CLARM OF HYFRINGMENT OF RIGHT OF PROOF BEYOND REASONABLE DOWRT OF CRIMINAL CHARLES DOES NOT EXHAUST FEDERAL REASONABLE DOWRT CLARM] IT SHOULD BE REVIEWED WIDER THE FUNDAMENTAL FARVESS GUIDELINES. IN TEMPLE V. STATE, 14-08-00074 CR (TEX.APP. — HOUSTON [14th DIST] 2011 No. PET.), THE COURT HELD, "BROOK DID NOT DO AWAY WITH FACtuAL-SUFFICIENCY RELSEW; IT SIMPLY RECOGNIZED THAT WHEN THE BURDEY OF PROOF IS BEYOND A REASONABLE DOWRT, FACtuAL AND LEGAL SUFICIENCY ARE ONE AND THE SAME" BROOK DOES NOT ALTER CONSTITUTIONAL AUTHORITY OF THE HYPERMEDIATE COURTS OF APPEAL TO EVALUATE AND RULE QUESTION OF FACT. BROOK V. STATE 323 S.W. 3d (TEX.CR.AP. 2010). THE LOWER COURTS IMPROPERLY MEASURED THE SUFICCIENCY OF EVIDENCE TO THE DEFECTIVE CHARGE THAT WAS GIVEN, IT MADE IT INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE VERDICT OF GUYLTY. BODZER V. STATE 717 S.W. 2d 608 (TEX.CR.AP. 1981).

II. DID THE APPELLATE COURT ERR WHEN IT RULED APPELLANT'S MOTION TO QUASH INDICTMENT WAS GIVY AN ORAL MOTION WHEN A PRO SE WRITTEN MOTION HAD ALSO BEEN FILED?

*22 STATEMENT OF FACTS THE C.O.A. CO.WLLDDED THAT DISTRICT COURT DED NOT EAR IN DEVYING BRANDS ORAL MOTION TO GUASH BECAUSE HE WAS ACTING PRO SE WHILE HE WAS REFRESSENTED BY COWSEL WHEN HE MADE HIS REQUEST, ALSO CITING TEX.C.CRIM. PRO. ART. 27.10 SAYING MOTION TO GUASH MUST BE MADE IN WRITING. THE C.O.A. CITING C. CRIM. PROC. ART 1.14 ADDITIONALLY SAYS THAT BRANN HAS FAILED TO PRESERVE ANY ERROR REGARDING, THE TWO PRO SE MOTIONS FILED BEFORE TRIAL BECAUSE HE'S NOT ENTITLED TO NYERED REFRESSENTATION AND THAT BRANN FALLED TO OBTAIN A RULING FROM THE DISTRICT COURT OR THAT THE DISTRICT COURT EXPRESSEY REFUSED TO RULE ON THE MOTIONS. C. 4 A. SAYS THE INDICTMENT TRACKED THE LANGUAGE OF THE APPLICABLE STATURE AND SATISFY CONSTITUTIONAL AND STATUTORY REQUIREMENTS.

SUMMARY ARGUMENT BRANN HAS STANDING TO CHALLENGE CONSTITUTIONALITY OF A INDICTMENT ONLY DISOFAR AS IT HAS ADVERSE IMPACT ON HIS OWN RIGHTS, AND IN CRIMING CASES, ULTIMATE TEST OF ANY EUDENTIARY DEVICE'S CONSTITUTIONAL VALIDITY IN A GIVEN CASE IS WHETHER DEVICE WDERMIDIES FACT FUDER'S RESPONSEBILITY AT TRIAL, BASED ON EUDENCE ADDUCED BY THE STATE, TO FIGD THE ULTIMATE FACTS BEYAND A REASONABLE DOWD. THIS FOR PRESENTS FUNDAMENTAL QUESTIONS: 1) WHETHER THE TRIAL COURT HAD SUBISDICTION TO ENTERTAIN DEPENDANT CLAIM THAT THE RETALIZATION INDICTMENT WAS ERROMEDUS AND UNCONSTITUTIONAL 2) WHETHER THE APPLICATION OF THE RETALIZATION IN THIS CASE WAS UNCONSTITUTIONAL 3) WHETHER IT WAS PROFER FOR THE

*23 TRIAL COURT TO DECIDE THE FACIAL CONSTITUTIONALITY ISSUE. THERE ISN'T A FAIR READING OF 36.06 TO SQUARELY BRING WITHIN THE PROHIBITION OF 36.06 BECAUSE THE INDICTMENT OMETS THE STATUTOPY ELEMENT "HARM", ELEMENTS WHICH ARE NECESSARY TO AUTHORIZE CONVICTION. THERE IS NO INDICTMENT.

ARGUMENT (SUPRA, DOYLE,AT 730) CALLS INTO QUESTION THE ADEGUACY OF THE CONSTITUTIONAL PEAUISITE OF NOTICE TO THE ACCUSED AND THEREFORE REQUIRES THIS COURTS CONSIDERATION OF IT FROM HIS PERSPECTIVE. DRUMM V. STATE, 560 S.W. 2d 944 (TEX.CR.APPI 1977). THE QUESTION PRESENTED IS WHETHER THE FACE OF THE INSTRUMENT SETS FORTH IN PLAN AND INTELLIGIBLE LANGUAGE SUFFICIENT INFORMATION TO EUABLE BROND TO PREPARE HIS DEFENSE. THE INDICTMENT OMETS THE STATUTOPY ELEMENT "HARM" PEN. C. 31.07 (Q) (ES) AND IT FATED TO SPECIFY THE WATURE THE OFFENSE, WHICH ITEMS COULD HAVE BEEN RECEIVED A NUMBER OF WAYS WHEN APPLYING 2.2.01 AND 22.02; THE ALLEGED THREAT WAS CONVEYED IN A NUMBER OF WAYS. FACE TO FACE, OVER THE PHONE, THROUGH A THERD PARTY. WITHIN, WHAT SDEVER IN THE INDICTMENT SUGGESTED AS MUCH. SEE SEFFERS V. STATE, 646 S.W. 2d 195 (TEX.CR. APP. 1981). BROND WASN'T CHARGED FOR WHAT WAS ALLEGEDLY SAID BUT FOR 22.01 AND 22.02 TO PROVE 36.06, WHERE IN, HE IS ACTUALLY INNOVENT. TRIAL COURT BASED ITS DECISION ON, "A WHOLE PAGE OF THREATS FROM ASSAULT TO MUEDER". RR.P. 71, LINES 15-25. INVENT, OF COURSE MAY BE INVERRED FROM ACT, WORDS AND CONDUCT OF THE ACCUSED. DUE V. STATE, 634 S.W. 2d 304, 305 (TEX.CR. APP. 1986). THE INVENT TO RETALIATE CANNOT BE

*24 INFERRED FROM 22.01 NOR 22.02; ANY BROADER IMPLICATION OUTSIDE OF THE REAUSTE LANGUAGE OF THE CHARGE ITSELF, SUCH AS IMPLYING MURDER, IS EXTRAVEDUS. EVEN TESTIMONY THAT BROWN SAID "I'm coming FOR You" OR "I know WHERE you LIVE" IS EXTRAVEDUS BECAUSE HE WAS NOT GUILTY OF THAT OFFENSE. WHEN OFFENSE STATUTE BEFORE MAWVER OR MEANS OF COMMISSION OF OFFENSE IN SEZERAL ALTERNATIVE WAYS, INDICTMENT WILL FAIL FOR LACK OF SPECIFICITY IF IT NEGLECTS TO IDEUTIFY WHICH OF THE STATUTE IT MEANS TO ADDRESS. TEX. CONST. ART 1310; TEX. C.CR.PROC.ART. 21.02 (1), 21.03, 21.04; (2th AND 14th U.S. CONST. AMEND. THE INSTRUMENT MUST PROVIDE ON ITS FACE SUFFICIENT INFORMATION). SWAPABO V. STATE, 597 S.W. 2d 361, 364 (TEX.CR.APZ. 1990). BROWN IS SERVING A 15 YEAR SEVTENACE UNDER TEX. GON'T.C. $508,149$ AND TEX.C.CR. PROC. ART. 42.123 (36), WITHOUT THE COMPLAINT ALLEGING, CHARGING, OR ACQUSING THAT HE DID COMMIT A SPECIFIC OFFENSE CREATING A FATAL VARIANCE BY THE MISTOINBER VISLATING WUWARABLE RIGHTS TO A FAIR TRIAL. THIS REPUBWANT INDICTMENT IS DUPLICATIONS IN THAT IT READS ASSAULT AND AUG. ASSAULT IN EACH COUNIT OF RETALIATION. (DOYLE, SUPRA, AT 731) MOTION TO GUASH ENTITLED HIM TO THE ALLEGATION OF FACTS SUFFICIENT TO BAR A SUBSEQUENT PROSECUTION FOR THE SAME OFFENSE AND SUFFICIENT TO GIVE HIM PRECISE NOTICE OF THE OFFENSE WITH WHICH HE WAS CHARGEO.

THIS COURT IS GUIDED HERE BY OSBORNE V. OHID, 495 U.S. 103, 122-125, 110 S.Ct. 1691, 109 L.Ed. 2d 98 (1990). OSBORNE

*25 APRIED THE GENERAL PRINCIPLE THAT AN OBSECTION AMPLE AND TIMELY TO BRING AN ALLEGED FEDERAL ERROR TO THE ATTENTION OF THE TRIAL COURT ENABLING IT TO TAKE APPROPRIATE CORRECTIVE ACTION, SATISFIES LEGITEMATE STATE INTEREST AND THEREFORE SUFFIGCES TO PRESERVE THE CLARM FOR FEDERAL REVIEW, DEFENSES AND OBSECTIONS BASE ON DEFECTS IN THE INSTITUTION OF THE PROSECUTION FROM THE INDICTMENT FAIL TO SHOW JURISDICTION IN TRIAL COURT, CHAMBER V. MESSISSIPPI, 410 U.S. 294, 43 S.Ct. 1038 (1475). MORE OVER, ANY FAILURE TO OBSECT TO THE SUBSTANTIVE DEFECTIVE INDICTMENT SHOULD BE IMPUTED TO TRIAL CONVSEL'S DEFICIENCIES, SUOCE THE COURTS BELOW DESREGARDED BROWN'S PRO SE MOTION'S BECAUSE HE WAS REFRESERVED BY CONVSEL AND NOT ON THE MERITS PRVOTING ARRUHD [EOOK V. STATE, 402 S.W. 2d 471,47576 (TEX.CR.APР. 1945)], 1.) A PERSON 2.) THE COMMISSION OF AN OFFENSE; TO CONSTITUTE AN INDICTMENT, 22.01 AND 22.02 FAIL TO CHARGE THE COMMISSION OF 310.010, THEREFORE, IT IS NOT AN INDICTMENT AT ALL AND DOES NOT UEST ANY TRIAL COURT WITH JURISDICTION. FURTHERMORE, BECAUSE A VALID INDICTMENT IS ESSENTIAL FOR JURISDICTION, IT IS NOT SUBSECT TO WAIVER. THE C.O.A. SAYS BROWN WAS ACTING PROSE WHILE HE WAS REFRESERVED BY CONVSEL AND THAT THE DISSTRICT COURT HAD NO butY TO RULE ON THE REAWEST, HOWEVER, IT CONFLICTS WITH ITS OWN ORDINO SAYING BROWN SHOULD. HAVE SAID SOMETHING BEFORE TRIAL BEGAU. BROWN PRESERVED ERROR THROUGH WRITTEN MOTION TO QUASH SUFFIGIET TO ENABLE TRIAL COURT TO COMPLY WITH RESMEST. TEX.R.EVID. 201 (b)(c)(d)(e). AND SUOCE BROWN HAD THE RIGHT TO BE HEARD BY HYMSREF $(16)$

*26 [TEX.COMST.ART. 1310], the C.C.R.PROC.ART 1.14 WAS SATISFIEED AND WAS NOT VOIDABLE BY HYBRID REPRESS/FATING AND THE INDICTMENT WAS VOIDABLE BY REAWIIEREMST OF TEX.C.C.R.PROC.ART. 21.02(1).

BROUND REOUESTED A RULING AT ARRARGINMENT ON HIS MOTIGM TO GUASH AND TRIAL COURT PRODONICED THAT IF ALL THE ELEMENTS ARE NOT MET YOULG BE FOUND NOT GUILTY, EXPRESSLY REFUSING TO MAKE A RULING ON THE MOTIGM(S). BROUND COULD IMAGINE NO REASONABLE TRIAL STRATEGY FOR [TRIAL CONVSEL] REMARKING: SILENT WHEN HE WAS DISIGENTLY TRYING TO GET SubtCIAL NOTICE PRO SE. BROUND MADE GOOD FATHY EFFORT TO COMPLY AND THE VIOLATION IS TECHICICAL [JAMES V. KENTUCKY, 466 U.S. 341, 351,104 S.Ct.1830, 80 L.Ed. 2d 346 (1984) STATE LAW PROCEDURAL VIOLATION NOT SUFIICIFITLY SERIOUS TO PREVENT REVIEW, SINCE DEFENDANT SOUGHT TO INVOKE SUBSTANCE OF FEDERAL RIGHT; HICKS V. WASHWRIGHY, 633 F.2d 1146, 1148 (5th CIR.[FLA]1981) -ALTHOUGH ISJARTFULLY PHRASE, OBJECTION WAS SUFIICIENT; PEDRERO V. WASHWRIGHY, 540 F.2d 1383,1340 (5th CIR.[FLA] 1979), CERT. DEVIED, 444 U.S. 943 (1979) PETITIOWER DID ALL THAT HE COUED TO COMPLY 17 ; OR IF STATE PURPOSES TO RECOGNIZE THE "WARIVER" OF FEDERAL RIGHT THAT ARE WNWARVABLE [ENRIEUEZ V. PROCUMBER, 752 F.2d 111,114 (5th CIR. TEX. (1984), CERT. DEVIED, 471 U.S. 1126 (1985) ; WEAVER V. MckASKLE, 733 F.2d 1103,1104 5th CIR. [TEX.] 1984.

PIVOTING AROUND THE EXTRAVLEOUS THREATENING STATEMENTS WHICH THE GUILTY VERDICt STANDS, IS NOT SIMILAR TO THE ALLEGED OFFENSE AT THE GUILT/INJOCENKE PHASE DEMONSTRATING A PRESUDICE TO BROUND BECAUSE HE OBJECTED [DELGAdo V.

*27 STATE 235 S.W. 3d 244, 252-253 (TEX.CR.APP. 2007), AND REGUINE A TEVERSAL BECAUSE TRIAL COURT WAS ALLOWED TO CONVET ON ASSUMPTION THAT HE WAS ACTING IN COMPORNITY WITH A CRIMING CHAPACTER (REDWOR V. STATE, 871 S.W. 2d 726, 738 (TEX. CR. APP. 1844), IT SIENEFICALLY CURTAIED HIS ABILITY TO PREPARE A DEFENSE. BRADY V. MAFFLAND 373 U.S. 93, 87 (1963). THAT RIGHT IS UNQUESTIONABLY PROTECTED BY DUE PROCESS. SEE UNITED STATES V. BAGLEY 473 U.S. 667 (1996). PROSECUTOR'S ARGUMENT AS TO LAW WAS CONTEARY TO COURTS CHARGE. WHITING V. STATE, S.W. 2d 45, 48 (TEX.CR.APP. 1846). THE STATE BASCALLY IS SAVING 36.06 STATUTERY ELEMENTS END WITH THROUG THREATEN, AND IT IS ABLE TO IMPLY WHATEVER HARM AND WULAWFUL ACT IT DECIDES, IF IT DECIDES, AT ANY STAGE OF THE PROCEEDING IT DECIDES TO PROVE ITS CASE.

III. DID THE APPELLATE COURT EAR WHEN IT OVERRULED APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COWSEL?

STATEMENT OF FACTS C.O.A. OVERRULED BROWN'S FINAL ISSUE SAVING COWWSEL'S REASON FOR FALLING TO DO SOMETHING DO NOT APPEAR IN THE RELORD AND BEFORE COWWSEL REFERSENTATION IS DEGMED INEFFECTIVE, COWSEL SHOULD BE AFRORDED THE APPORTUNITY TO EVERALL THEIR ACTIOUS. IT ALSO SAYS BROWN DOESN'T IDENTIFY ANY PRE-TRIAL MOTIONS THAT SHOULD HAVE BEEN FILED AND THAT ATTREVEY INTRODUCED EVIDENCE REGARDING BROWN'S MOTHER AS A MATERIAL NOTHES THROUGH QUESTIONING OF DEPUTES AND BROWN'T IT SAYS DEPETENCIES (17)

*28 WERE DISCLUSED DURING THE TRIAL AND ARE APPARENT WHEN VERWED, PERTAINING TO THE EXPERT WITNESS NOT BEING SUBRODHA. IT TASK NOTICE OF BROWN'S PRO SE MOTIONS; FOR HEU TRIAL AND NOTICE OF APPEAL ALLEGING INEFFECTIVE ASSISTANCE OF CONUSEL; BUT SAYS HE HASN'T OVERCOME THE PRESUMPTION THAT CONUSEL PROFESSIONAL ASSISTANCE WAS WORKSOWABLE. IT SAYS WETTHER CONUSEL WOR THE STATE HAVE BEEN GIVEN OPPORTUNITY TO RESPAND TO THE CLAIMS AND DEVIES BROWN MOTION TO APPEAL.

SUMMARY ARGUMENT PROCEDURAL RULES DO NOT GENERALLY INVOLVED AN ASSERTION BY THE DEPENDANT HIMSELF, PATHER THE DECISION TO ASSERT OR NOT TO ASSERT CONSTITUTIONAL RIGHTS OR CONSTITUTIONAL OBSECTION'S ARE ENTRUSTED TO THE DEPENDANTS ATTORNEY. BROWN'S ATTORNEY HAD THE ULTIMATE RESPONSIBILITY OF DECIDING IF AND WHEN TO OBJECT, WHICH WITNESS, IF ANY, TO CALL, AND WHAT DEPENSES TO DEVELOPE, CONUSEL'S REFRESENTATION WERE NOT THE RESULT OF "TREAL STRATEGY" BUT INSTEAD AN IGWORANCE OF CRIMINAL PROCEDURE AND HIS DUTY TO ZEALOUSLY DEPEND. BROWN SUFFFERED THE WIFAR PRESUDICE AND HARM OF REPEATED FARLURES. IT IS NOT THE GRAVITY OF THE ATTORNEY'S ERROR THAT MATTERS, BUT THE FACT THAT THE ERROR CONSTITUTE A VIOLATION OF BROWN'S RIGHT TO CONUSEL. WITH FUNDAMENTAL CONSTITUTIONAL RIGHTS AT STAKE, NO FICITIONAL RELATIONSHIP OF PRINCIPLE-AGENT OR THE LIKE CAN SUSITFY HOLDING BROWN ACCOUNTABLE FOR THE WAKED ERRORS OF HIS ATTORNEY.

*29 CITING STRICKLAND V. WASHINGTON 466 U.S. 668,104 S.Ct. 2052, 80 L.Ed. 674 (1991), SHEWING 1.) COWSEL'S PERFORMANCE WAS DEFICIENT WHEN COWSEL'S FAILURE TO EVALUATE PROFERLY, FACTS GIVING RISE TO A CONSTITUTIONAL CLARM OR HIS FAILURE PROPERTY TO INFORM HIMSELF OF FACTS THAT WOULD HAVE SHEWING THE EXISTENCE OF A CONSTITUTIONAL CLARM, MIGHT IN PARTICULAR FACT STTUATIONS MEET THE PROOF [OF INCOMPETENT COWSEL] TOLLETT V. HENDERSON 411 U.S. 298, 327 (1973), AT 266 267. THERE IS NOTHING WREASONABLE, HOWEVER, IN ADHERING TO THE PROPOSITION THAT IT IS THE RESPONSIBILITY OF A LAWYER WHO TAKE ON THE DEFENSE OF ANOTHER TO BE AWARE OF HIS CLIENTS BASIC LEOAL FORUM IN WHICH HE PROCITCES HIS PROFESSION. IMPORTANT RIGHTS HUING IN THE BALANCE, AS MENTHOWED IN BROWN'S SECOND ISSUE IN THIS FOR PERTATING TO HIS MOTION TO GUASH INDISTMENT WHERE COWSEL FALLED TO ASSIST BROWN ON HIS PERWEST, SATISFYING STRICKLAND, 2.) DED DEFICIENT PERFORMANCE PRESUBICE BROWN'S DEFENSE, BECAUSE THE FAILURE OF TRIAL COWSEL TO REGUEST A REASONABLE DOWST INSTRUCTION WHEN EXTRAMEOUS OFFENSE EVIDENCE INTRODUCED RESULTED IN A HOLDING, THAT ERROR HAD BEEN WALVED. (RODGER'S V. STATE, 180 S.W. 3d 716, 724 (TEX. AFP, WACO 2005, NO PET. H.) THE ERROR IS SO EGREGIOUSLY HARMFLL THAT BROWN WAS DEVIED A FAIR AND IMPARTIAL TRIAL. [AWIZAR V. STATE, 12 S.W. 3d 479, 493 (TEX.CR.APZ. 2000); CORMIER V. STATE, 955 S.W. 2d 161, 163-164 TEX. AFP, 1997, NO WRIT]. AN ATTORNEY HAS A DUTY TO EXERT HIS BEST EFFORT TO ENSURE THAT HIS CLIENTS DECISSIONS ARE BASED ON CORRECT

*30 INFORMATION AS TO THE APPLICABLE LAW, FAILURE TO GIVE COMPETENT ADUSSE TO A DEFENDANT WHICH WOLD PRUMOTE AN UNDERSTANDING OF THE LAW IN RELATION TO THE FACTS AND WHICH WOLD PERMIT AN INFORMED AND CONSCIOUS CHOICE IS ERROR. SEE RODRIGUEZ V. STATE, 340 S.W. 28 (4) (TEX.CR.APP. 1960); CARUSO V. ZELINSKY (189 F. 2d 438 (3rd CIR.1982). IT HAS BEEN HELD THAT, IN THE ADSENCE OF ANY TREAL STRATEGY FOR THE FAILURE TO REQUEST THE EXTRAVEDUS OFFENSE INSTRUCTIONS, CONVSELS REPRESENTATION FELL BELOW AN OBJECTIVE STANDARD OF REASONABLENESS REQUIRING A REVERSAL ON THE GROUND OF INSUFFICIENT EVIDENCE [EX PARTE VARELAS, 45 S.W. 3d 427, 630 (TEX. CR. APP. 2000).

IN WELSON V. STATE 149 S.W. 3d 175 (TEX.CR.APP. 1976) THE COURT STATED: THE SECOND PRUNG OF STRECKLAND REQUIRES THE DEFENDANT AFFIRMATIVELY PRUNE PRESUDICE. THERE IS A REASONABLE PROBABILITY THAT BUT FOR CONVSEL'S WITROFESSIONAL ERROR, THE RESULT OF THE PROCEEDING WOLD HAVE BEEN DIFFERENT. A REASONABLE PROBABILITY IS A PROBABILITY SUFFICIENT TO UNDERMINE THE CONFINDENCE IN THE OUTCOME. BUTZER V. STATE, 716 S.W. 2d 48, 54 (TEX.CR.APP. 1986); EX PARTE WELBORN 785 S.W. 2d 341 (TEX. CR.APP. 1990). THIS IS ESPECIALLY TRUE WHEN BROND REJECTED A PLEA BARGARA BASED ON ERRORS LEGAL ADVICE FROM CONVSEL AND WAS CONVUCTED AT TRIAL AND RECEIVED A MUCH GREATER SEVTEUCE THAN OFFERED IN THE PLEA BARGARA. ADDITIONAL SAIL TIME HAS A SDEYH AMENDMENT SIGNATICANCE. SEE GLOVER V. UNITED STATES, 533 U.S. 148, 203 -204, 121 S.Ct. 646, 148 L.Ed. 2d 604.

*31 BRown sought Relief Based on a failure to meet a valid legal standard and the afPLication of an incorrect legal proofal. As a result of counsel's inefficible and not because of strategy reasd, Brown was nARMED at the ReA bargain level and wasn't making a decision to freed or proofde to trial. SEE NINTH cTFCUIT wUITED STATES count of afreal mowRE v. CZERMIAK, No.04-15713, July 28, 2004. Counsel's DEFICIENKIES CAUSED BRown to act pro se, to proofde a not guilty ReA without notice of the offense, it dRENED the DoR to extraneous EfEMSÉs, caused BRown to lose the reA bargain benefit, RENBERED a guILTY VERDICT FOR 22.01 AND 22.02 AND 36.06, All crimes BRown ARE not shown to have committed, and it falled to recserve ERfor an AfPEAL. SEE HILL v. Lockhart, 474 U.S. 52 (1986). THE STANDARD FOR DETERMINING PRESUDICE IN INEFFECTIVENESS CASES DURING REA BARGAIN PROCESS WAS ESTABLISHED IN THE U.S. SUPPREME CAURT MISSOURI V. FRYE, 132 S.C+ 1399 (2012) AND LAFFER V. COOPER, 132 S.C+ 1376 (2012). EX PARTE LEMKE, 13 S.W 3d 796 (fEX.CR. AFP. 2000) HELD THAT AN Accused SUfFers PresuDICE WHEN HIS LAWYEE'S DEFICIENT PERFORMANCE DEPRIVED HEM THE OPPORTUWITY TO ACCEPT A REA BARGAIN THAT HE MAY HAVE ACCEPTED IF HE HAD SUFPIENT INFORMATION FROM COWNSEL ON WHICH TO BASE HIS DECISION.

BRown's attorney cross weakleGence is not limited to not FLLING A mOTAL to GUASH, BUT HIS FAILURE TO FILE ANY PRE-TRIAL mOTIONS IN BRown's FAVOR. BRown FILED MANY AND SE mOTIONS, mOTION'S ARE STARTED IN HIS STATEMENT OF LASE IN

*32 HIS APPELLANT'S BRIEF. CLAIMS OF LEGAL SUBSTANCE SHOULD NOT BE FORFETTED BECAUSE OF FAILURE TO STATE THEM WITH TECHNICAL PRECISION [BROUW V. ALLEN, 344 U.S. 443, 502,97 L.Ed. 469,73 S.Ct. 397 (1953)]. CONVSEL HAD NO CLUE AS TO HOW ARE WHERE TO BEGAN TO DEFEND AND SUCH DEFICIENT PERFORMANCE WAS PRE SUBDICE. WOOD V. ALLEN, 130 S.Ct. 841 (2010); CONVSEL ALSO FAILED TO INVESTIGATE DEFENDANTS ONLY DEFENSE [BROOK V. TEXAS, 391 F. 2d (19 (5th CIR.1967)]. IT IS NOT SPECULATIAN TO SAY CONVSEL WAS INEFFECTIVE BECAUSE HE DIDNT HAVE A FIRM COMMAND OF GOVERNING LAW. EX PARTE DUFFY, 607 S.W. 2d 507, 516 (TEX.CR.APР. 1980). AS POINTED OUT IN BLUE V. STATE, 41 S.W. 3d 124 (TEX.CR.APР. 2000); THE COURT CAN TAKE NOTICE OF FUNDAMENTAL ERRORS AFFECTING SUBSTANTIAL RIGHTS ALTHOUGH THEY WERE NOT BROUGHT TO THE COURT. THE BLUE COURT FROUND IT WAS NOT NECESSARY FOR CONVSEL TO OBJECT FOR ERROR TO BE PRESERVED.

MOREOVER, CONVSEL DEFICIENT PERFORMANCE HARMED BROUW WHEN HE ADMITTED TO DEVVING BROUW COMPULSORY PROCESS. (RR.P. 74, LINES 20-25). THIS IS PRETAIUNG TO BROUW'S REQUEST TO CALL "EXPERT WITHESS". SEE TEX. P. EVID. 702, 703, AND 705 (a). CONVSEL HAS A DUTY TO MAKE REASALABLE PRETRIAL INVESTIGATIVE EFFORTS TO BASE A DECISION NOT TO PRESENT A MITIGATION CASE BASED ON A THOROUGH UNDERSTANDING OF AVAILABLE EVIDENCE. WIGGINS V. SMITH, 539 S.W. 2d (2003), CHOOTING STRICKLAND V. WASHINGTON, 466 U.S. 668 (1989). PERHAPS ON CROSS-EXAMINATION OF THE EXPERT WITHESS IT WOULD HAVE PRODUCED EXCULTATORY EVIDENCE, SUCH AS, THIS WASU'T ALL THE VIDED HE OR SHE HANDED

*33 OUR, EXPLAINED WHY TIME ON THE VIDEO IS CROPPED, MISSING, AND SKIPPED OUT OF SEQUENCE, EXPLAINED WHY THE VIDEO STOPPED BEFORE BROWN ENTERED THE ELEVATOR, EXPLAIN THE PLACEMENT OF THE CAMPA'S OR THAT THERE WAS PASSIBLE MORE VIDEOS, MAYBE THERE WAS A VIDEO WITH SOWD, PERHAPS THE VIDEO HAS BEEN WILAFULLY ALTERED. THE ALLEGED OFTENSE HAPPENED AT 1PM APPROXIMATELY, IT IS ALLEGED BROWN WAS PUSHED ONTO THE ELEVATOR BY HIS MOTHER, HE WAS ALLEGEDLY LOOKING AT THEM. THE VIDEO IS VALUE WITHOUT THIS EXCULPATORY WITHESS. [MELENDEZ - DIAZ V. MASSACHUSETTS, 577 U.S. _ 20093 AND BULLCOMING V. NEW MEXICO, 564 U.S. _ 2011, THE COURT HELD THAT ADMITTING A LAB CHEM IST'S ANALYSIS INTO EVIDENCE WITHOUT HAVING HEM TESTIFY VIOLATED THE COUPRONITATION CLAUSE]. SEE EX PARTE WOOD, 176 5 W. 3d 224 (TEX.CR.APZ. 2005), COUNSEL HAS THE DUTY TO SEEE OUT AND INTERVIEW POTENTIAL WITHESS. BROWN FILED A PRO SE MOTION FOR DISCOVERY, IT WAS NOT NECESSARY FOR COUNSEL TO DISSECT TO PRESERVE ERROR, BLUE SUPPA, AND IF THIS COURT WILL NOT CONSTRUE BROWN'S OBSERCION TO THE DENTAL OF DISCOVERY AS HAVING RESTED ON A CONTENTION THAT, BRADY SUPPA, REQUIRES THE PROSECUTION TO DISCCOSE ANY EVIDENCE THAT MIGHT BE MATERIAL TO GUILT, WHETHER OR NOT IT IS EXCULPATORY, THEY THE COURT SHOULD FRAME THE ISSUE BEFORE IT AS WHETHER ACT OR ONESSION BY COUNSEL, IDISuFFICIENT TO CONTRACHEME THE SEXTH AMENDMENT. SEE CATREER V. HUTTO, 724 F.2d 346 (1985). BROWN ARCWES THE SAME CONTENTION ON HIS PRO SE MOTION TO SUPPRESS, WHERE THE EXCLUSIEMARY RULE EXTEND TO BAR THE GOVERNMENT FROM USING BOTH THE INDIRECT AND DIRECT PRODUCT OF WICONISTITUTINGL CONDUCT [STATE V. ROBINSON 334 S.W. 3d 776 (TEX.

*34 CR. APP. 2011). BECAUSE THERE IS A CONNECTION BETWEEN THE EUIDENCE AND STATUTORY (UOLATION), AND ITS PROBATIVE VALUE WAS OUTWEIGHED BY THE bAGGER OF WIFRER PRESUBICEE [MONTGOMERY V. STATE, $310.5.W,2\mathrm{d}372,388-398$ (TEX.CR.APP. 1981)] SEE TEX. R. EUED. 4033 OR CONJSEL'S ACT OR OMISSION IS INSUFFICIENT TO CONTRAVENIE THE STXTH AMENDMENT. BROWN HAD THE RIGHT TO CROS CROS5 - EXAMINE THE VALIDITY AND MEANSIG OF THE UIDEO(S) OR HAVE THEM SUPRESSED.

STRATEGIC CHOICES MADE AFTER LESS THAN COMPLETE INVESTIGATION PREVENTS A REASONABLE PROFESSIONAL JUBGMENT WHICH AREN'S 'STRATEGIC' AT ALL, THE U.S. SUPPREME COURT PULED IN CRAWFORD V. WASHINGTON, 541 U.S. 34 (2003), THAT ADMITTING TESTIMONIAL STATEMENTS UNDER HEARSAY EXCEPTION DUES VIOLATE THE CONFRONTATION CLAUSE OF THE STXTH AMENDMENT. BROWN'S MOTHER COULD HAVE TESTIFIED THAT BROWN WAS INDEED TAKING TO HER ABOUT RELEGION, FILING A LAWSHIT, AND THAT HE WAS NOT FACING HIS ACCESSERS, BUT, TAKING, LAND FNOUGH FOR THEM TO HEAR, THAT SHE DIDUY FUSH HEM ON THE ELEUATOR. IN CASES SUCH AS THIS WHERE THERE ARE NO PHYSICAL EUIDENCE AND EUIDENCE IS BASED ON TESTIMONY, THEN, ANY INDEMICAL OF THIS EXCULTATORY WITNESS VERSIONS OF FACT HARMED BROWN'S DEFENCE. SEE TEX. R. EUED TOD(d).

FUTHER MORE, COWSEL DIDUY HAVE A CLOSING ARGUMENT AFTER THE GUULT/INNOCEINE PHASE. HE DIDUY EVEN OBSECT TO PROSECUTORS CLOSING ARGUMENT WHEN HE SAID THE STATE PROVED EVERY ELEMENT BEYOND A REASONABLE DOWST. IN CHALLENGING PROSECUTOR'S CLOSING ARGUMENT BROWN CITES (24)

*35 CALDWELL U. MISSISSIPPI, 472 U.S. 320, 86 L.Ed. 231,105 S.Ct. 2633 (1985); BLUE, SUPRA. SINICE CONUSEL'S FAILURE TO OBJEET TO THE PROSECUTOR CLOSES GRGUMENT MAY BE PROCEDURALLY WATVED, THIS COURT WILL CONSIDER WHETHER ACT OR ONISSING BY CONUSEL, IS INSUFFICIENT TO CONTRAVENIE THE SIXTH AMENDMENT, FURTHER CONUSEL ASKED BRANE, WHILE HE WAS ON THE STAND, TO BE A WITHESS AGAINST HYMSELF UIGLATING THE FUTH AMENDMENT, WHEN HE ASKED, "DID YOU SAY YOU KNOW WHERE THEY LIVED, [THEY]." HE DIDN'T EVEN OBSECT WHEN THE PROSECUTOR BABGERED BROWN WITH [SUGGESTIVE EXTRAVEDUS OFFENSES]. TREAL WAS ABOUT 30-MIJUTES. ALSO, NO ATTORNEY WOULD HAVE USED DISTRICT ATTORNEY MUPDERS TO SHOY WHY DEPENDANT ACOUSERS MAY HAVE BEEN IN FEAR. WHEN REVIEWING THE TOTALITY OF CONUSELS REPRESENTATING [THOMPSAN V. STATE 9 S.W. 3d 808, 813 (TEX.CP.AP7. 1989)] IT IS NOT SPECIALATING TO SAY ATTORNEY CONTRADATED TO BROWN'S CONVICTION AND ABRIDGED CONSTITUTIONAL RIGHTS ENITTLED TO HEM. BROWN IS SERVING A 15 YEAR SEVTEME UNDER TEX. C.CR. PROL. APY. 42.128 (33); GOVT. C. 8 508.149 AND DOESNY KUW THE OFFENSE BECAUSE OF CONUSEL'S INKAPACITY, INKET AND CROSSLY DEFICIENT PERFORMANCE WHICH SUCH SERIOUS ERROR SHOY THAT ATTORNEY WAS NOT FUNCTIONING AS CONUSEL AND DEPRIVED A FAIR TREAL. STRECLAND, 466 U.S., AT 69.7.

MORE OVER, ATTORNEY OR COURT MUST ADVISE YOU OF A) YOUR RIGHT TO APPEAL; B) THE PROCEDURE AND TIME LIMITS INVOLVED; AND C) YOUR RIGHT TO APPORTED CONUSEL ON APPEAL. SEE T.R.A.P. 25.2 (d) COURTS CERTIFICATION OF DEPENDANTS RIGHT TO APPEAL; 25.2 (d)(2) THE NOTICE TO INFORM THE DEPENDANT OF HIS RIGHT

*36 TO APPEAL. SEE THOMAS V. BEto, 423 F. 2 d ( 442 (t.m CTR. MTO); EX PARTE AMEL, 757 S.W. 2 d 369 (TEX.CR.APP. M88). WHEN COORDIN TO THE TOTALITY OF THE REPRESENTATION FRANCIIAS V. STATE, 392 S.W. 3d (442, 453 (TEX.CR. APP. 2013), WE NOW Look TO THE ERROR THAT COWSEL FAILED TO ABUISE BRONN OF HIS RIGHT TO APPEAL ORILLY OF IN WRITING, FAISED TO ASSIST BRONN AS A MATTER OF RIGHT IN PERFECTING AN APPEAL GIDEN V. WASH WRIGHT, 372 U.S. 335, 339, 344, 9 L.Ed. 2d 749, 802, 805, 83 S.Ct. 792, 93 ALR 2d 733 (1963). BRONN WAS WWWELLING TO PARTICIPATE WITH COWSEL BECAUSE (1) COWSEL WAS IN COMPETENT AND HE WAS PRESIDICED BY COWSEL'S INCOMPETENCE 2.) IT WAS SOLEY TO REDUCE THE SEVERICE. BRONN SUFIICIIENTLY INDICATED IN HIS PRO SE MOTION FOR NEW TRIAL AND MOTION TO APPEAL THAT COWSEL WAS INEFFECTIVE, HE ALSO FIIED A PRO SE MOTION FOR APPELLATE COWSEL. APPELLATE COWSEL WAS NOT AFRARDED TO BRONN WITL AFTER BOTH THE THATTY - DAY AND SEVERITY - FIVE DAY TIME PERIOD IN WHICH TO HAVE A HEARING ON A MOTION FOR NEW TRIAL HAD EXPIRED, DEVYING BRONN EFFECTIVE COWSEL AT A CRITICAL STAGE. COOK V. STATE, 240 S.W. 3d 906,911 (TEX.CR.APP. 2007). BRONN DEMONSTRATED COUSEE DEFICIENT PERFORMANCE PRESIDICED HEM DURING EVERY CRITICAL STAGE OF HIS TRIAL EGREGIOUSLY AND THAT PROCEDURAL ERRORS WERE EXTERAL TO ME HEM. EVIDTS V. LUCET, 469 U.S. 397, 344, 93 L.Ed. 2d 921,105 S.Ct. 950 (1995). THE MOTION TO ABVATE APPEAL SHOULD HAVE BEEN GRANTED BECAUSE COWSEL MADE A FARCE OF THE TRIAL BY NOT PROVIDING ASSISTANCE WITHEN A REASONABLE PAGE OF PROFESSIONAL COMPETENCE. SEE WITED STATES V. DECISTER, 159 U.S. APP. D.C. 324,491 F. 2 d (197 (1973).

*37

PRAVER FOR THE REASONS ADDRESSED IN THIS FOR, BRAND PRANS THIS COURT FUNDS REVERSIBLE ERROR T.R.A.P. 61.1(2D (b) AND REV. DER SUBG. MEANT PURSHANT T.R.A.P. 60.2 (e) VACATING THE SUBGMENTS OF THE LOWER COURTS AND DISMISS THE INDICTMENT.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY THAT ON THIS SEtD DAY OF JULY 2015, A COPY OF THE FOREGOING DOCUMENT WAS MAJLED BY DELIVERING IT TO A PRISON OFFICIAL FOR MAILING WIDER THE INDISENT POLICY, TO THE CLERK FOR THE COURT OF CRIMINAL APPEALS P.O. BOX 12308, CAPITOL STATION AUSTRU, TEXAS, 78711 AND SERVED UPON TRAUIS COUNITY DISTRICT ATTORNEY'S OFFICE P.O. BOX 1748 AUSTRU, TX 78701