Applon, James Noah v. State, PD-0691-15

Applon, James Noah v. State

PD-0691-15

Tex. App.

Aug 4, 2015

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Case Information

PD-0691-15

IN THE TEXAS COURT OF CRIMINAL APPEALS $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$ $◻$

LIST OF AUTHORITIES

I. STATEMENT OF THE CASE II. PROCEDURAL HISTORY OF THE CASE III. QUESTIONS PRESENTED FOR REVIEW A. Whether trial counsel's performance was ineffective because he failed to file a motion for discovery and inspection of evidence on his client's behalf pursuant to Act. 34.14, Tel. Code Comm. Prac. Ann. B. Whether prosecutorial misconduct was established by the State's failure to timely disclose prejudicial statements outside the presence of a jkey rather than during guilt/innocence phase of trial without notice. C. Whether trial counsel was ineffective because he failed to challenge the State's offer of proof that Petitioner, despite the fact others were present exercised actual care, custody, control, or management of the three (3) loaded weapons found in his girlfriend's bedroom. IV. REASON FOR REVIEW A. Trial counsel's actions fell outside the wide range of reasonable and professional assistance as soon as he decided not to compel the State to produce excubatory evidence outside the presence of the jkey in a pretrial hearing. B. Court of Appeals incorrectly held that Petitioner failed to show prejudice because trial counsel's objection is firmly created in the record.

*3 C. The Court of Appeals incorrectly held that a rational jury could have found beyond a reasonable doubt that the scintilla of evidence presented was legally sufficient to support the Pettitioners conviction.

I. CONCLUSION AND PRAYER II. CERTIFICATE OF SERVICE

*4 LIST OF AURKORITIES

| I. CASES | |-------| | Handy v. State, 189 S.W.32 296 (Tex. Cm. Apr. 1987) | | Salines v. State, 163 S.W.32 754, 740 (Tex. Cm. Apr. 2005) | | II. CONSITION | | Federal Fourth Fifth, and Sixth Amendment | | III. STATUTES | | Texas Code of Criminal Procedure Act 39.14 | | I |

Following a juzy trial, petitioner was found guilty and pleaded "true" to an entrancament allegation before the trial court sentenced him to seven years in prison.

QUESTION PRESENDED FOR REVIEW

Whether trial counsel's performance was ineffective because he failed to file a motion for discovery and inspection of evidence on his client's behalf present to Act. 39.14, Tex. Code Crim. Proc. Ann.

REASON FOR REVIEW

Trial counsel's actions fell outside the wide range of reasonable and professional assistance as soon as he decided not to compel the State to produce exculpatory evidence outside the presence of the juzy in a pretrial hearing. See Affidwir attached.

It is reasonable to conclude that trial counsel failed to have a firm command of the facts before he agreed to proceed trial without a ruling on both a motion to discover and suppress evidence later found to be inadmissible. Handy v. State, 189 S.W.3d. 296, (Tex. Crim. App. 1947). Essentially, petitioner was deprived of both a meaningful trial and appeal which is firmly rooted in the record. Salinas v. State, 163 S.W. 3 d. 734,740 (Tex. Crim. App. 2005). The presumption that counsel's conduct was reasonable has been overcome by the fact that he knowingly relieved the State of it's burden to produce the alleged felony warrant before the Court in a pretrial hearing. And as a result, the Retitioner's rights under the Fourth, Fifth and Sixth Amendments of the United States Constitution

*7 have been violated. It is now the Partitioners understanding that, not the State, but his trial counsel bore the burden of establishing in the absence of proof that a valid felony warrant existed at the time weapons were seized from the residence. Had counsel protested that material facts were intentionally hidden and filed a motion to compel discovery, the results of the trial would have been different.

QUESTION PRESENTED FOR REVIEW

Whether prosecutorial misconduct was established by the State's failure to timely disclose prejudicial statements outside the presence of a jury rather than during guilt/innocence phase of trial without notice.

REASON FOR REVIEW

Court of Appaste incorrectly held that Partitioner failed to show prejudice based because trial counsel's objection is firmly rooted in the record. Specifically, the State intentionally presented hearsay statements related to several incidents involving a shooting during cross examination of Partitioners girlfriend. Essentially, the statements though unfunded had improperly alluded to Partitioners exercise of his right to not testify. Inorder for purposes of setting the record straight. This apparent violation of due process was a staggering blow to the defense and had absolutely no probative value. The fact that this reversible error was harmful and requiring a new trial Partitioner need not explain what is understood based on a cursory review of the record.

QUESTION PRESENTED FOR REVIEW

Whether trial counsel was ineffective because he failed to challenge the State's offer of proof that Retitioner, despite the fact others were present, exercised actual care, custody, control, or management of the three (3) loaded weapons found in his gulfriend's bedroom.

REASON FOR REVIEW

The Court of Apponls incorrectly hold that a rational jury could have found beyond a reasonable doubt that the scintilla of evidence presented was legally sufficient to support Retitioner's conviction.

It is clearly a miscarriage of justice to be convicted of possession without offering independent facts describing which art of the three (3) weapons was linked to Retitioner in light of the circumstances. It appears that counsel abandoned his client by failing to challenge the sufficiency of the evidence offered by the State, and as a result this conviction is based solely on Retitioner's fortuitous proximity to the weapons. The fact that police saw others moving around in the horse could have served as a rational inference that they were transporting the firearms to the bedroom because it was a possibility that the officers would enter the home. (RRV; p. 24,32,43)

CONCLUSION

Accordingly, Retitioner's conviction should be reversed and order of acquital is appropriate or an order of new trial issued.

I, James Noah Applon Petitioner, Pro Se, hereby certify that a true and correct copy of the foresgang Petition for Review has been delivered to the prosecuting attorney, and to the Statis Attorney, at Austin, Texas, by forwarding to the clork, this the $\frac{1}{1}$ day of July, 2015.

Hamen Capplon
Petitioner Pro Se

*10 RIS COUNTY SHERIFF'S OFFICE JAIL $∵$ Joames APELON OISSESSO Cell: 3C| PI300 P.O.Ver

Houston, Texas 77002

LEGAL MAIL

HHOLESTCIRCSO TX 773 23 JUL'15 PM 71

LÉGAL MAIL

HHOLESTCIRCSO TX 773 23 JUL'15 PM 71

HHOLESTCIRCSO

*11

*12

JOUNTY SHERIFF'S OFFICE JAIL

56560 Cell 3C 1

BOOKBARA Houston, Texas 77002

DIGENT

IS COUNTY SHERIFF'S OFFICE JAIL

James Appion

1256560 Cell 3C 1 BOOKBARA Houston, Texas 77002

14th

District Court of Appeals 1307 San Jancinto IIth flood Houston, TX 77003

N HOLLSTON

TX 773 23 JUL '15 PM 14

US POSTAGE

PTNEY BOWES 21P 77002 $ 000.705 02.111

0001374178 JUL 232015

LEGAL MAIL 14th District Court of A ppeal 1307 San Jancinto IIth flood Houston, TX 77003

DIGENT

14th District Court of A ppeal 1307 San Jancinto IIth flood Houston, TX 77003

*13 JUNTY SHEKHP'S OFFICE JAIL

Housion. Texas 77002

M. HOLLETCHL

Mall

JIP 77002 $ 000.705 02.14 0001374179 JUL 23-2015

INDIGENT

14th District Court of Appeals 1307 San Jacinto ^[11] th Floor Houston, TX 77002

QUESTION PRESENDED FOR REVIEW

REASON FOR REVIEW

QUESTION PRESENTED FOR REVIEW

REASON FOR REVIEW

CONCLUSION

Hamen Capplon Petitioner Pro Se

56560 Cell 3C 1

DIGENT

James Appion

14th

N HOLLSTON

US POSTAGE

DIGENT

Hamen Capplon
Petitioner Pro Se