Case Information

*1 IN THE HOUSTON I4TH COURT OF HUMANS OF TENNS LUKD'NG, Q1-15-00295-CR IN RE. THOUN'S UN. FLORENCE, RELATOR REL. TION FOR USREL OF MINNOMMUS TRADAL COURT TO FOLLOW THE LYN DISMESS LOCRIAL CHIMINAL INVECTMENT

COMES NOU PIRCE, HYLININ! (RELATOR) TO MOV THE COURT (LYN CURKES) TO CONSERVITY CONTRALE MY PRO SE PLEMONAS, HANES U.KERMEN. 404 US 513.520 (1992) SEE, (HUMANS CORPUS (ASSES), PRO SE PLEMONAS ACCIPPED US TRUE UNICES THE MEX CUEMAL FRENTOOLS, LLS, V. PAPES, 622 Fad GS (3RD CIR.1330), PLUNK V. CIR. EFFONDA DOT. OF CIRR. 20 F3d 1469 (9TH CIR 1394), ERRE V. STORES, 423 FAD 1024 (9TH CIR.2000), PETITONER UN. DISMARK STANNING HELP TO BE TAUX. UNICIPLITED MUTERAL FUCIUL ISSUES HERE THE GANUESTON POLICE DEPARTMENT OFFICER CUEMENT I. GUYACIMIT, FILCO A G. 124200-13980 CHEF FIRC. KICHTED POLICE REPORT ON 9-20-21-2010 PULCING EMPERICATIO EVENT THAT PULGALLY OCCURED ON IL. DATES. GANUESTON POLICE DEPARTMENT DETECTIVE, HOLLY JOHN- SON, USED ILL. REPORT 82010-13980 TO ORTHIN A HEREST UNIRRANT FUSSED ON ILL. REPORT TO CURRCE HIE UDA G. 124200-13980, HEFILMULT HANO COMMUNIT FOR HEREST UNIRRANT ON HERE- IL. (ALLEGEELY) FILCO IN

*2 JUSTICE OF THE PENICE ACT. 11 , SEE, EXHIBIT APAPUHICH VERDEDES NO SUCH RECORD OR FLUNG (SEC. T.C.C.P. 1187.15.26). RELHTOR MOUE COURT TO THEE HUMIDHTED I.KE. 301 JUIGCORAL NOTICE OF IOOKIAT FRANKS V. DEUMWHEE HOMANNG (HPPPMP 01-1100830K) K.K.VOL. 1-2. SEC. K.DWILD V. STHTE 819.5 WAD 203. 204. (TEX. HPM HOUSTON 14 DIST. 198 ). FPPPCLANT (RELHTOR) MUSI PKESENTME. GUHWENT, RECORD HNO SEEDEET, POALTS EACIS. (SUPRANTO BY RECORD, Id 294.) SEE. IOOKIAT, R.R. VOL 5 of 3 K. 170 , HOMITTEO TO BY FORMER CHDEF H. D. H. TROH, COURT LONNCE C.OX. THE ONU DOCTMENTS PRESENTED TO THE 1-14 2010 C.K. MND JUEY C. HIS THE FHORTCMTOO (TESTIMONY) (SP2 9 2010-13986, CHDEF REPORT HNO GIRQ B2010-13986 CHMETER 45. 1187. 45.018 a. 45.019 HFFDMVHT HNO. COMBULHINI FOK MEREST CHMKKMT FILED (M. (IGEOLY) IN J. P. CT. PCT. 11 1922 MOODY HIE GYK- VESON.TX. TISSO. (FRANKS 129201 EXHIBIT R.K. VOL. 2, SUPPA). C. GHKCDM. HNO H. JOHNSON'S FITSE TESTIMONY IN I. 1.9200-13980 C. HIS TESTIMONIML, SEE PHUL V. STHTE SUL 3d - 1210-0028CK. (TEX. HAF.TYLER SOIA). SEC. K.K. VIL. 5 of 9. P. 176. SUPPA N. VERBML TESTIMONY FROUH, N. GNE UMD PRESENTED TO

*3 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ ,0.108 $,0.108$ 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*4 .edu0.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.996,0.20020.96,0.20020.996,0.20020.96,0.20020.996,0.20020.996,0.20020.996,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.2002020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.2002020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.2002020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.2020.96,0.20020.96,0.2002020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.2020.96,0.20020.96,0.2002020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.2020.96,0.20020.96,0.2002020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.2020.96,0.20020.96,0.2002020.96,0.20020.96,0.20020.96,0.20020.96,0.20020.96,0.2020.96,0.20020.96,0.2002020.96,0.20020.96,0.2020202020.96,0.20020.96,0.200202020.96,0.20020.96,0.200202020.96,0.20020.96,0.200202020.96,0.20020.96,0.200202020.96,0.20020.96,0.200202020.96,0.20020.96,0.200202020.96,0.2002020202020.96,0.20202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020202020

*5 A JUDGMENT VIDIXING EXPET SHOULD CE ONE TURT CAN CE MECKTHANED FROM (KINOUEY 204) RECORD WITH LOTTLE DIFFICULTY. SEC. 1008121, EXHIBIT: T-29-201 R.K. UOL 2 HNO HYOUST 2011 R.K. UOL. SAF 1 F. 172-179. THE RECORD HNO EXHIBIT SHOUS VIDIUM A DOUS THE FUNDAMENTAL EXPET HNO CAN BE MECKTHANED FROM THE RECORD IN THIS CASE. WITH LOTTLE DIFFICULTY. HEX. 1004. 1068. SEC. R.K. UOL. SAF 1 F. 173, 11-19, EXTECHTCE HOLLY TOHNSON FMLSCLY SHITE A MITTUCHC WILS- SHITCHENT TURT HYOUST 2011 EXHIBIT: 11 HEX 45.015 (2) CHARGING DOLUMENT COMPUTES WITH HEX. 45.019 (2)(2) JHET. 123, SEC. FRANCIS 189, SHIPER RECORD, EXHIBIT: HNO TUMM EXHIBIT NIL 11- 2012. SEC. R.K. UOL. SAF 1 F. 174-10-13, THE SHITE CMLS FOR A LEGAL CONCLUSION ON Td. 28 H 11. TWMAL CMLST FMLLGO TO MHKCE ONE. SEC. Id. 2125, WHER THE SHITE MARTINALD SHITE TURT THE STYLE OF THE CHRKENT FA NOT RECUEVENT. THUR'S TRUE THIS WAS NOT HISOUI THE STYLE OF THE MACKST. WHRAVINT, IT WAS A FITUCK ON THE SHFRENCE OF CHRONOLOGY AND MACKST 4222010 DOOMMENT TURT FOR NOT CMLST WHY HEX. 123, 45.019 (2)(2) 171. WHAN DEPRESS (1) MUGISTRATE OF TURTSKITT-

*6

*7 ETUEE INTO EXERCISE HNO THAN FUMANSHED TO THE JUNE. THE COURT VERGITRARI, F OMAED THE END OF COURT FOR THE JUNY TO 60 HOME, F. 171, R.R. 101, S.E. (F.176). ETUE JUDGE NEN THAT THIS WAS A CHALONE TO THE SUPRECENCY OF THE CUMMUNITY (29010-13380) IS (HNO WAS) A GUYSTON OF UNV, 20KKKUB, 130, CITING STATE VROFF, 601. HNO LONDIE CAN THOSE FORMER CO-LOOKKEN KNEN HE COULD HMO TO YE THE ONE TO INSTALL THE JUNY TO THE UNV HNO KNEN HE COULD HMO TO EXSMUSS HORRIT. THESE HOLS OF GUYESSING HAY THE TREAT COURT UHS CVERK STEAT, THRAN, EKKOK(S) SEE HERKEN V. SO(IN) 113 S.C. 853,800 (1993), CITING INKE PUNCHESAN, 349 US 133,136 (1955), THE SUPRENCE COURT UING HGO HELP, E HOWE A CONSTITUTIONAL KIGHT TO A FARK TREAT IN A FREN TREATING. SEE, ERECHT V. HYBRAMSON, 113 S. (F. 110,111 (1993), HNO HYEZOND V. FULMONDYTE, 113, CF. 124 (1963 (199)), SEE, EXHERES A41A69, HUKLEV, KNEN, K6, F211021 (TH CIR 2013). HYDCHED TO HYDUNE COURT. SEE, HNO PONDER V. SINGER, 49 F32 1483 (11D CIR 1995), HREZOND V. FULMONDY, THRUY V. OHIO 213 US 510 (1927) WHEEHUMV. JERICO 446 US 238 (1980). SEE, KINGUY 264, SUPRA, SITTO WART IS SUPRENCE, HY. HYGUMONI, KECOND HNO MUTYONITY FOR RILKF, Id. 264.

*8 SEX. 644 SWAD S3. (TEX: CRIM:MEP.1982) THE EDCUMANT (GPOP 201013880, SHIPKH) IS FUNGYMMENTIALLY: KAPECKER HYD THIS (GPOP 2010-13980 45:018(2), 45:019(2)(2)(4)(1)) USED CRIMPURANT IS H EFFECT OF THIS STANCE KATHER THAN FORM, KIX GOA. (0)S. SHIPKH.

SEX. 01-11-008220K HYPERL 1-30-20(3)NWU HYD VOID JUOAMENT KH FOMB E: KEYES DICK MY GESTEUDON TO RECUSE HER T.R.A.P. SEX. OHI-008220K DKT. SHIET. SEX. MUKEHONSON L3G. SHIPKH, HEXECKA, 800, SHIPKA.

THE FIRST COURT OF HYPERL's PROFTEST THE HEROO FITOKUEY ALLEN ISKALL TO CONDUCT THE STATES. HYPERL.

MK. ISKELL MUNE H FROUGLUS MEXHMENT SURVEYED (GPOP 1982) THAN THE EFFECT OF H COMPLANT IN PELMS KOES NOT HAYE TO COMPLY WITH MRELLA3.

ISKELL MROUKS (MREL 13.04.15.03) THE GPOP 2010-13980 COMPLANT (UHS 000 FILED UNIQEK 15.04-15.05, SHIPKH.

WHEN IN FOUR, IT WAS NOT FILED UPUNIQEK 15.04-15.05, Id. HAY, FILED UNIQEK MREL 45.018. 45.019.

EVEN IF GROUNSOMM SIHTE MAKES H LESS MEXHMENT, ITSTILL UOID EXCHASE THE GED

*9 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | $,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.108,0.1

*10 MES-STATED MY HRAUWANT MND TUE UHN TO KENY MY ISSUCEE, MND OTHERS, MY STANDAR THIAT A SEARCH AFPEDMUTT MAT, 18 (13.03.45. DIE, 45.019. HKE TUE ONLY CHMPTEE'S FOR 3UUH AFPEDMUTS) DOES NOT HAYE TO COMPLY WITTH MME LAD, TUE KELHTOR NEVER HRAUED TO TUE TREML COURT OR EN HES PRO SE KNEEY'S TO TUE IST COURT OF HPPBALS THIAT HIE WYD CHALLEGING TUE SEARCH AFPEDMUTT.

THE HPPBML COURT AT P. 14947 SHPRM (002) ON TO SHITE THIAT A COMPLHINT DOES NOT HAYE TO COMPLY WITH MME 1 LAD, 45.018.45. (019 (0) (2) (1). (15.03 (2)). HNO TUE HPPBML COURT OR TREML COURT USED T.C.C. HKE LAD, 45.018 (0) (45.019 (0) (1)) YD GUIDANG PRANCEPUS MND RENDEWED MND LDEKALLY CONSTRUED MY PRO SE, PEPMOTNES, RENDRDING, RENKMKING ENGRNIC TUE RENMOR UGULD NOT STELL YE UNLHWFULLY RESTERHED, DETMENED MND DIMARASONED MY OFF, GEOGRANDIBAKE CHWKEDNG MND HKEEY MND DWALCIDNG EOUMWENT, K.K. WL 30 f 9 (16) SHRRA. THE TREML COURT OR IST GT, OF HPPBALS HYD NO DISCRETION IN DETERMINING WHAT THE UHN IS OR HPPYING THE UHN TO FACIS, IN KE EL KA 30 HAVILH CERE SYSTEM 904 SUAD (08.12.018. HKE ELKASO 1998). SIC, CURRY, SHITE, 315 SUAD 263.265 (1EY. HKE HOUSTON 14 DET 1991, HELD THIAT THE COURTID

*11 MUST FLRST DERECT ET ATTENION TO THE VALIDITY OF THE HIRREEST HYPERMANNT (GPRD 2010-13980) OR WHRERHUT UNHOMT ANY KENCHERMANT TO THE GODFFAITH EXECTION, Id. 265. THE RECORD IN THIS CREE THE TREAT COURT OR HYRAT COURT WHICK IN 3ACH DETERMINATION TO THE UNLIBIDITY OF GIRD 2010-13980 CONKHANT 4-22-2010 FOR HIRREST WHRERHUT.

REVHTOR MORE THE COURT TO THIKE JURICIML NOTICE NECESSARY TO DETERMINE WHETHER LONDIE COK? ORDOR OR INHCRONS TO HEXERES SURFRENCE OF GPRD 2010-13980 4-22-10 HYPERMAN (WIDF GOL. SHIPER) IN LOCKHOL WAS USED UHECH USULD PRESUUED THE FIRST COURT OF HYREHIS 1-30-2013 USED HYPERLHTE KENEEN. DUE TO JURIDIATION, SEC. PRESIDUM COMMONS INC., COKONHED - SIV3d - (TEX, S.CF. 2012) (* 09-0145, (0-22-202), SEC. DIALUS CO. HYPERMSTAT Y. FUNDS RECORDY, SEC. SIV3d 465 (TEX. HYP. DIALUS 1994), HELD DF THE TREAT (GML.CO. SIGN DIST. CT.) COURT UACLED JURIDDATION, THEN AN APPLLUTE (HOUSTON) ST COURT OF HYREHIS * 01-4008220K 1-30-2013) COURT ONLY HAS JURIDIATION TO SET (LOCKHOL) THE JURIDMENT H3DOC AND EXAMES(LOOKED) THE CMMSC, Id 468. SEC. Id. 468. AS AN HYPERLHTE COURT WE

*12

*13

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*15

*16

*17 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | ,0.996,0.996,0.996,0.996,0.996,0.996,0.996,0.96,0.996,0.996,0.996,0.96,0.996,0.996,0.996,0.996,0.96,0.996,0.996,0.996,0.96,0.996,0.996,0.996,0.996,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.96,0.

*18 X37: SUAD X33, X40 (PX, S, CX 199), MMMMMMUS UIDL ISSUE TO CIRREOT A CIFAR HASUSE OF DISCRETDON. MMNDMMUS IS AVRELABLE TO CIRREOT JUDICIAN, SUPRA HOTON THAT IENORES CIFAR PENKIDNE PRECIOENT PECMUSE JUDGES OR JUSTICES DO NOT ENJOY PRECIOUN TO IENORE THE LAM! (HS IN LOCKIAT, OI UEDUS 23 IS SUE " 3, SEE, EXHIBENTS WITHCHED) KOZACK V KOZACK. SUPRA. SEE, INKK UINGEDEES, 3 IS. SUPRA, MMMDMMUS WHY PX USED TO CIRREOT JUDICIANHOTON THAT! CINTRAREY TO WEUL SSTLAD LAM! LUMTHER THE LAM! IS. EDEKIDNE FROUY STMLYE, RUYE OR CLEAR PENKIDNE PRECIOENT FROUY A COURT OF SUPCKIDK JUKIDETCIIAN. SEE, EXHIBETAL - ACQY MTHANCO I CIRREY SHED EXHIBEDS HKE TRLK HNO, CIRREOT COPDES UNIOR PENKITY OF PENKYLY HNO CIRREY SHED PLEYKIDNE UNIOR T. K. H. P. 10.3 HZTKE, PREYONDANICE OF THE EXPENSIVE IS EXPENSIVE UHEDH IS MORE CONVINCING THANTHY EXPENSIVE OFFERED IN OFFOSERON TO LT. RELATOY EDEKIDS THE COURT TO EXHIBETAL HNOCTYMENT 2-21-2010 DIYTCE OF OFFENCE SEE, IKEKIAT JUDGMENT 2-21-2010 DIYTCE OF FUZ, GENEIEH VERDUGEYEIDEN 730, T26 (3RE 681993)

*19 OFFONCE 3-27-2000/SEC. CHMREC TO THE JUNY 3-27-2000, SEC. TOCU USO CITC HNO TOCJ CLASSIFFEOMTION HNO RECORASS THAT SHOUS HNO SHITE FOCRUHNEY 27.2000. SEC. EXHIBIT, E. SEC. EXHIBIT'S A41-A68, HUKCES V. KYAN, 106 F3d 1021 (9TH CIR. 2003). SEN SEC. I OCKIAIT DOCKET SHIET FALS, RECUSM OF JMONC COV. (MORON). SEC. LOCKIAIT-85-4 HAY 11,07 TROHIC COUR SURGEONDIANAN INTEINTOIN M1F. ULOUHTE EXPANTE. SINCIIHN. 324 SUN 3d 578 (1974. CIRM. HPR. 2011). T.K. P. P. L. (a) (a), (18. (A), (19), (F (ii))/SEC. SINSSENH V. KHZAN, 28 SUN3d 235,238 (1974. HPR. 1994 MONT 2000), HEN HIS HCRONS (1195 VORN HNO UNUAUFUL SEC. HUKES, EXHIBIT A41 A (1974. SUPPM. SEC. T.K. P. P. RICUSM OF JUSPCCES. H NMMER OF RECUSM MORONS ITMETY FILCION JUSTICE E. KEYES 7-30-13 MUTHOR OF OI H-00X22CR UOID HFFDGMNTION OF LOCKIAIT FUTUED TO RECUSM SEUF HNO FUTUED TO CERTIFY SHIO MORION TO CILURT ENZMNC. THAT DNRUED KONDED HNO SIGNED EACH MORION HNO EVEN TULCENTLY SHT ON ENSMIL KANEL TO HENR HNO VOTE TO

*20 TO KENY SHOP MORON ON VEOLMEON OF EAK. 18. (USCMAM/1491). SEE, SEX, CURRES V. SHOTS, 162 SUZM 958, 960 (TEX, HPR. KALES MERONS VODERE THE 1-30-2013 JUNEI MENT. SEE, HENOT V. HENOT, 1099d 281282 (TEX. HPR. HOUSTON 14 DEST. 1980). SEE, ENHEROT A41-A69, HUKEES V. KYAN, 104 F3d 102 (9M CIR. 8013 ), KELIEF GRAHIT JUNEI CML. KENN. REVATOR CERTIEY SHOP. PLEMONS HNO HERDEY CERTIEY THAT TOTI MMTL KOMM SHIPP HNO VOTRESESS VEKERERE THIS MMTLNG TO HOUSTON CLEEK 14M COURT OF HERMES 301 FANNIN ST. KOMM 245 HOUSTON TEXIS 17002 MURKCH 20.2013, ENHEROT A1-1472 MTHERCEP, KENEFFULY, SUGMOTED PRASE SHOMAS (V) 382.1978 PRAHER! RULE 2 HPPLIEF HNO 01-1100822- CK, HPRM LSSUE * 3 GRAMPTED! 1989 THE TREML COURT DERCERE TO DES HATES IEK- I211 US MUNIVATED DR. CARS. SENT TO SENDER OR VESITING OR HPRDONTEO JUSTICE OR JUNGE TO DROPER LOCKIQD KTSMESSOY MUL KELIEF MY UAV GRAHITED. CERT OF SEEN! THOMAS FUERDICK CERTIEY THAT A TRAK HNO CORRECT COPY WAS SENT TO GML. CO. FEST. JUNGE LONNDE CAE 3-20-2015 600 SYM. ST. SE 4801 CUEEK. GML. 31551

*21 A (a) T Mary M 3 son swear by this sta tment. On Friday October 182014, I went to the Frec iht 1 to obtain copies of some paper work for my son, Thomas Florence. The worker who waited on me as she looked the paper work over she said she didn't understand what I needed and by that time another worker came from the back and without looking at the paper work because the worker trying to help me still had the papers said they didn't have the paper worked I needed. How she knew what I needed was a mist to me because she never looked at the paper work.

I went back on Friday 10/17/2014 and asked the same worker, who didn't look at the paper work to sign one of the papers stating they didn't have the paper work and at first she said no, then she just wrote on the paper that they didn't have the paper work and it is attached to this statement and she still didn't sign it.

T Mary M 3 son

Tis with

Tiele Number 701217100000000000000

*22 All(b) TO MY MIMOKOUS LETTES RELATED TO EMB 2016 10125' GPD 2010-139850 ARKEST MEEPGAVIT AND ARKEST COHERANT ALLEGALLY FILED.DN. JUSTICE OF THE FORCE ACT. 1 GMMYESTON TY. WERE KEGUESTING CERTEELED CORTEES OF GPD 2010-10125 EDEKUMERY 12, 2010, GPD* 2010-139850 ARKEST MEEPGAVIT S AND EDEKUMERY 210.2010 (WAKKAMY). APPROVEO OF KY J.R. HON, JIM SCHIWETZCK. DEAK, CLERK PIEASE SHIMMEEIE, TYESE DOCHMANTS HIND KETLINTO MY MOTHER. WAKY MUSON LOOJUK SHIMMEED FILED COPY SINCEKLY THOYMS CO. FLORENCE

NOIE GPD 2010-10125 FILED 3-82010 GPD 2010-139850 FILED 4-33-2010

Pate 2012 A1 (b)

*23

EXHIBIT? EUROINCE

Galveston Police Department

A (C)

Case: 2010-00010125 Unit: 1952 Type of Incident: -ACBI Family member. Date of Incident: 2-12-2010 Reporting Officer: - C.Teague Badge #: 834 Date of Report: 2-12-2010

Case Disposition:

All required charge warrant documents were completed for this case offense of ACBI Family member, filed in JP-1 court, with $\$7500.00$ bond requested.

*24

AFFIDAVIT AND COMPLAINT FOR ARREST WARRANT
THE STATE OF TEXAS
A)
(1)
COUNTY OF GALVESTON

The undersigned Affiant, being a Peace Officer under the Laws of Texas and being duly sworn, on oath makes the following statements and accusations:

1. There is in the Galveston County, Texas, a person described as follows:

Thomas Wayne Florence; Date of Birth: 6/26/1968; Race: Black: Sex: Male; Height: 5'08": Weight: 207; Hair: Black: Eyes: Brown: Social Security Number: 466-39-0135; Address: 5102 Avenue O 1/2, Galveston Texas 77551 2. The said Thomas Wayne Florence is the suspect in an alleged Sexual Assault of a Child. 3. It is the belief of Affiant, and he hereby charges and accuses, that: 4. Thomas Wayne Florence, in Galveston County, Texas, on or about the date of February 26, 2010, did then and there intentionally or knowingly cause the penetration of the vagina of Amber Guamelo, a child who was then and there younger than 17 years of age and not the spouse of the defendant, by defendant's penis. 5. Affiant has probable cause for said belief by reason of the following facts:

Your Affiant, Detective Holly Johnson #340, is employed as a Peace Officer with the Galveston Police Department and charged with investigating crimes that occur in the City of Galveston, Galveston County, in the State of Texas. Affiant has been a Texas Peace Officer for over 9 years employed by the Galveston Police Department. Affiant is currently assigned to the Criminal Investigations Unit of the Galveston Police Department.

On March 2, 2010, Affiant was assigned follow-up investigation to Galveston Police Department case number 2010-13986 (Sexual Assault of a Child). Affiant learned the following facts from the case report:

1.) Affiant learned from reading Galveston Police Department case #2010-12135 (runaway report) that on February 19, 2010 Amber Guamelo had not returned home and was entered into TCIC/NCIC as a runaway. 2.) Affiant learned from reading Galveston Police Department case #2010-13986 that on February 26, 2010 Officer Garcia #733 called Thomas Wayne Florence in regards to Amber Guamelo's whereabouts. Officer Garcia reported that Thomas Florence had given him information in the past when Amber Guamelo had runaway and was able to provide information on her whereabouts. Affiant learned from reading the police report #2010-13986 that on February 26, 2010 at about 10: 09 p.m. Officer Garcia received a phone call from Lisa Ruiz stating her and Amber Guamelo would turn themselves into the Galveston Police Department. Affiant also learned from reading

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the police report that Amber Guarnelo was transported to Ben Taub Hospital for a Psychiatric evaluation for drug abuse, suicidal thoughts and attempts. 3.) Affiant learned from reading case #2010-13986 that on February 26, 2010 Officer Garcia #733 received a phone call from Robbie Guarnelo stating that while at Ben Taub Hospital a pregnancy test was administered to her daughter, Amber Guarnelo the result was positive. Affiant also learned from the police report that when Robbie Guarnelo asked Amber who the father was Amber replied, "T" (A.K.A. Thomas Florence). 4.) On March 9, 2010 Forensic Interviewer Cheryl McCarty conducted a videotaped interview with Amber Guarnelo at the Child's Advocacy Center. Affiant observed this interview from a separate room. Affiant observed Amber stated that she is at the Advocacy Center to talk about her and another person named Thomas. Amber said she met Thomas through a friend. Affiant observed Amber say that she is about one month pregnant and the father might be Thomas Florence. Amber describes sex as when "my everything touches their everything and the boy part goes inside the girl part." Affiant observed Amber say that she has had sex with Thomas about eight times at different houses in Galveston. Amber said the last time they had sex was on February 26, 2010. Amber said this happened at a house in Galveston on a mattress on the floor. 5.) Affiant spoke with Thomas Florence's wife; Wanette Florence who stated Thomas told her he thought Amber was eighteen years old. 6.) Affiant spoke with A.D.A. Kayla Allen who advised to charge Thomas Florence with Sexual Assault of a Child and recommended bond be set at $\$250,000$ .

Based on the above probable cause Affiant requests an arrest warrant be issued for the above listed Thomas Wayne Florence.

WHEREFORE, Affiant requests for issuance of a warrant that will authorize him to arrest the said Thomas Wayne Florence.

Affiant

Sworn and subscribed to before me by said Affiant on this the 22nd day of April, 2010

Magistrate, Galveston County, Texas

*26 THE STATE OF TEXAS vs. FLORENCE, THOMAS W 51.02 AVE $01/2$

GALVESTON TX 77550 DL #11505205 DOB 06-26-1968 RACE: B /SEX: M

THE STATE OF TEXAS TO ANY SHERIFF, CONSTABLE OR PEACE OFFICER OF THE STATE OF TEXAS, GREETINGS:

You are hereby commanded to arrest FLORENCE, THOMAS W if to be found in your county and bring them before me, a Justice of the Peace in and for Pct. 1; of Galveston County Texas, at my office at 1922 Seaily, Galveston, TX 77550, in said county, immediately, then and there to answer the state of Texas for an offense against the laws of said state, to-wit:

SEXUAL ASSAULT OF A CHILD of which offense the Defendant, FLORENCE, THOMAS W is accused by the written complaint, under oath, of OFFICER JOHNSON, H filed before me.

Herein fail Not, but of this writ make due return, showing how you have executed the same.

WITNESSED my official signature this the 22nd day of April 2010.

Justice of the Peace, Pct. 1 Galveston County, Texas

OFFICER'S RETURN

• strike according to facts GPD#10-13986

*27 The State of Texas, to the Sheriff of GALVESTON County, Greeting: YOU ARE HEREBY COMMANDED to commit to the jail of GALVESTON County the body of FLORENCE, THOMAS W on the charge of SEXUAL ASSAULT OF A CHILD The said defendant may be released on Bond Amount: 4,360,000

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The STATE of Texas, Appellant v.

Boris ZORRILLA, Appellee.

No. 04-12-00360-CR. Court of Appeals of Texas, San Antonio. May,22:29:13: 735 *735 Paul J. Goeke, Attorney At Law, San Antonio, TX, for Appellant. Lauren A. Scott, Assistant District Attorney, San Antonio, TX, for Appellee. Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PATRICIA O. ALVAREZ, Justice.

OPINION

Opinion by: SANDEE BRYAN MARION, Justice. The State of Texas appeals the trial court's granting of appellee's motion to quash the complaint. Because we conclude the complaint was sufficient, we reverse and remand.

ANALYSIS

Thecomplaint states as follows: Before me the undersigned authority on this day personally appeared affiant, who after being duly swom by me on oath deposes and says that affiant (engpostreepontor believe anddoes believe that in the County of Bexar and the State of Texas, and before the making and filing of this complaint, on this 1 [sic] day of October, 2009, Zorrilla, Boris committed the offense of Criminal Trespass - Habitation against the peace atptstignity of the State.

An information based on the complaint was also filed. The information alleged that "in said County of Bexar and State of Texas, and before the making and filing of this information, on or about the 1st Day of October, 2009, BORIS ZORRILLA, hereinafter called defendant, did intentionally and knowingly REMAIN in a HABITATION of another, namely: Lori Green, without effective consent of Lori Green, and the said defendant having RECEIVED NOTICE TO DEPART BUT FAILED TO DO SO ...."

Appellee filed a motion to quash both the information and the complaint alleging, among other things, that both oficiments failed to comply with the stated or and judiciatly created requirements for a valid information and complaint because the documents did not state the time and place of the commission of the offense as definitely as could be done by the affiant. After a hearing, the trial court granted the motion to quash.

A valid complaint is a prerequisite to a valid information, TEX,CODE CRIM. PROC. ANN, art. 21.22 (West 2006); Villareal v. State, 729 S.W. $2d348,349$ (Tex. App. E) Pass 1987, no pet.). The purpose of a complaint is to apprise the accused of the facts surrounding the offense with which he is charged so that he may prepare a defense. Vallejo v. State, 408 S.W.2d 113, 114 (Tex.Crim.App.1966); Kiciley v. State, 672 S.W.2d 207, 210 (Tex. App. E) Refactint H.4m. Diant 4594, 46:327. 736 *735 The particularity in pleading that is required for an indictment or an information ${}^{[1]}$ is not required for a complaint, and a complaint will not be dismissed due to a mere informality. Vallejo, 408 S.W.2d at 114 NComplaint shall be sufficient, withoutregant to form itdats has thesefout"substantiatiregates".

1. It must state the name of the accused, if known, and if not known, must give some reasonably definite description of him.
2. It must show that the accused has committed some offense against the laws of the State, either directly or that the affiant (ex-good-peace) to be (ieve) and does believe that the accused has committed such offense.

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1. It must state the time and place of the commission of the offense, as definitely as can be done by the affiant.
2. It must be signed by the affiant by writing his name or affixing his mark.

TEXICODE CRIM PROC ANNEXt 15:05 (West 2005)

Here, the only disputed requisite at trial and on appeal is the third, which requires the complaint to state the "place of the commission of the offense, as definitely as can be done by the affiant." Id. On appeal, the State asserts the complaint satisfied this requisite because "the complaint states that the affiant believed that the offense was committed on the 1st day of October, 2009 in Bexar County." Appellee counters that this argument would re-write article 15.05 to require the venue, as opposed to the place, of the offense.

Tropuificieroyodecomplaintas a question of law"Gew State v. Moff. 154 S.W.3d 509, 101 (Tex.Crim.Ap. 2004) (considering sufficiency of indictment). The narrow issue before us is whether merely stating "County of Bexar" is sufficient or did the State need to allege a more specific location of the habitation appellee is accused of trespassing upon. Because the resolution of this question of law does not turn on an evaluation of the credibility and demeanor of a witness, the trial court in this case was not in a better position to make the determination; therefore, we conduct a de novo review of the issue. Id. With one exception ${}^{[2]}$ we have found no case that specifically answers this issue. However, in other cases, although the issue " 757 was not whether "place" was adequately described counts have concluded the complaints that alleged only the county of the alleged offense to be sufficient.

For example, in Reyes y State the complaint charging defendant with aggravated robbery was sufficient because it alleged 3148 affient has good reason to believe that in Harris County, Texas, Carlton Reyes Franklin (aka Franklin Carlton Reyes) did on or about November 30, 1979, then and there commit the two counts of the offense of aggravated robbery ...." 630 S.W.2d 622, 822-03 (Tex.Ap. 144) (op. 144:Diet.144982c) (op. 144982) Likewise, in Vallejo, the complaint stated, in pertinent part, as follows: ... ONE HERMAN R VALLEJO JR [] ON OR ABOUT THE 31 DAY OF MAR -, 1965, AND BEFORE THE MAKING AND FILING OF THIS COMPLAINT, WITHIN THE INCORPORATED LIMITS OF THE CITY OF AUSTIN, IN TRAVIS COUNTY, TEXAS, [] did drive and operate a motor vehicle upon a public street therein situated at a speed which was greater than was then reasonable and prudent under the circumstances then existing, to-wit, at a speed of 45 miles per hour, at which time and place the lawful maximum prima facie reasonable and prudent speed indicated by an official sign then and there posted was 30 miles per hour ....

408 S.W.2d at 114. The Court of Criminal Appeals held the complaint sufficient because the appellant "from reading the complaint, could ascertain with reasonable certainty with what he was being charged so as to properly prepare a defense." Id.; see also Cisco v. State, 411 S.W.2d 547, 548 (Tex.Crim.App.1967) (driving while intoxicated "upon a public highway in said Harris County"); Nam Hoai Le v. State, 963 S.W.2d 838, 844 (Tex.App.-Corpus Christi 1998, pet. ref'd) (speeding "upon a public highway outside an urban district upon a federal highway" "in the County of Jackson"); Kindley, 879 S.W.2d at 263 (displaying an expired license plate "in the County of Harris").

Based on these cases, we are constrained to conclude the complaint in this case, which only alleged Bexar County as the place of the offense, satisfied the requisites of article 15.05 sufficiently to apprise appellee of the offense with which he was charged so that he could prepare a defense. Therefore, the trial court erred in granting appellee's motion to quash.

CONCLUSION

We sustain the State's issue on appeal and reverse the trial court's order. We remand the cause for further proceedings. [1] Similarly, the purpose of an information is to notify the accused of the charged offense and its elements so that he may properly prepare his defense. State v. Laint. 208 S.W.3d 667, 670 (Tex.App.-Fort Worth 2006, no pet.). The Texas Code of Criminal Procedure sets forth nine requisites for a valid information, including "that the place where the offense is charged to have been committed is within the jurisdiction of the court where the information is filed; ... [t]hat the time mentioned be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation; ... [and] [t]hat the offense be set forth in plain and intelligible words ..." TEX.CODE CRIM. PROC. ANN. art. 21.21(5)-(7). [2] The only case that contains similar facts is Villarreal, in which the following complaint charging the defendant with criminal trespass was held not sufficient: "[O]n (or about) the 27 (sic) day of September, A.D. 1985, and before the making and filing of this complaint, in Justice of Peace Precinct No. 3 of Jeff Davis County, State of Texas, [the accused] did then and there unlawfully and willfully commit criminal trespass Sec. 30.05 class B against the peace and dignity of the State." 728 S.W.2d at 349 "Tect.Correl. 728 S.W.2d 349 (Tect.Correl. 728 S.W.2d 349) (op. 144:Diet. 144982c) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) (op. 144982) 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*30

H.

*31 My name is Ms. Amber Maries Guarnelo I am over 18 years of age and I swear my statement is true under penalty of perjury.

I was not found about one month pregnant on February 24 or 27 2010, as l've stated in my prior statement the police report that l've read the events are false.

I found out I was about one month pregnant was on February 14, 2010 when at the hospital. I was not found pregnant on February 24 or 27, 2010 at Ben Taub. Mr. Garcia, Ms. Holly Johnson and Galveston Assistant District Attorney who harassed and threaten me. Ms. Rebecca Russell, Mr. Brandon Sims and the District Attorney that prosecuted Thomas Florence all knew I was no found pregnant on February 26 or 27, 2010 at Ben Taub, but February 14, 2010. The District Attorney's peoples were mad I refuse to lie for them on Thomas Florence and refuse to come to court on my own.

Ms. Holly Johnson came back to my house on January 19, 2011 to get my DNA after she had obtained Thomas and my baby's DNA on Janvary 4, 2011. I refuse to open the door for her to give her my DNA. She called my mother on the phone at work and told her I wouldn't open the door. Ms. Johnson told me if didn't open the door and give it to her she would have CPS take my child. Mr. Johnson, Mr. Garcia and the D.A. all knew that my child was born on October 22, 2010 by my mother. I did not call them as they stated and told them I had my baby.

I'm not a victim and I'm not a complaining witness on Thomas Florence as they stated. I was told by the owner of the Children Center to color for the video in a coloring book. When we go in her and Ms. H. Johnson kept bugging me, but I kept refusing until they got on my nerves, telling me what I need to say and do. This video was done after I had my baby not before. Thomas wife kept harassing my mother by phone and told us when my baby is born she was bringing her and Thomas daughter down to Galveston to give DNA. This was right before Thomas was setup by his wife to be arrested. I told him his wife was no good and was talking to Mr. Garcia and them. He did not believe me antil it was days after when he was arrested.

I ask that my affidavit be given to the Courts and reviewed. Thanks,

*32

*33

EVENOVE

1 Amber Gueruclo 19001: 1901902 TO the dige and district fint that Dificer (, Co.ce. 1901902 Ecluestion, police Seen isiling rai mother, at out the Lake against thorncy Florence an has told miy mom to ask me" 14 was still mad at him for putting thornas in Jac1." He also hes came to my house and showed my marn thomas's criminal records 100 as in the next room and, heard her tell my mom to trelo us pus him always and that thornas ficiones is already wanted for other domestic charges 1 dU not wish to answer any charges against thorn Florence these allegations are fails Amber glucorunelo Sicow to beface me on this 23 Tany 2011.

*34

$A5(d)$

$A5$ (d)

StDANNE

IAmber Guarnelo don't wish to do with tha case against thomas waujne Florence that involves me and i do not wish to pursuge with charees agamur thomas fBrence also thase I would to add in the police report that I have peading there are falpe allegations agamot thomas floretice in. "

1980

Amber eluessmela

SUDEN TO BEPAREME ON THIS 23 JLE. 2011

*35

currently at Ben Taub Hospital where Amber was receiving medical and psychiatric treatment for drug abuse and suicidal thoughts. Robbic told Officer Garcia that a pregnancy test was given to Amber and it was positive that she was pregnant and Amber told her the father was Thomas Florence.

Robbie also told Officer Garcia that she received a phone call from a female indentifying herself as Thomas Florence's wife; Wannette Jackson. Robbie said Wannette told her that Thomas was a drug dealer and assauthed her (#2010-10125). Robbie said Wannette told her she was aware of the relationship between Thomas and Amber.

CID follow up:

SEE VERS/ BIDENCE SUMMING

March 8, 2010

Fecensic Interviewer Cheryl McCary conducted a voluntary videotaped interview with Amber Guarnieto at the Child's Advocacy Center, observed this interview from a separate room. Amber said she was at the Child's Advocacy Center to talk about her and another person named Thomas. Amber said she met Thomas through a friend and is about one month pregnant and the father might be Thomas. Amber describes sex as when "my everything touches their everything and the boy part goes inside the girl part." Amber said she has had sex with Thomas about eight times at different houses in Galveston. Amber said the last time she had sex with Thomas was one February 26, 2010. Amber said this happened at a house in Galvestop on a mattress on the floor. See Amber Guarneto's videotaped interview.

March 10, 2010

Robbie said on the way to Ben Taub hospital Amber blunted out that she might be pregnant. Robbie said Amber starting saying, please Mom don't lock him up. Amber told Robbie that Thomas had planned it. Robbie said when they got to Ben Taub, Amber was given a pregnancy test and the results were positive. Robbie said Amber said to her again please don't lock him up.

Robbie said Amber told her she was positive that Thomas was the father because "customers" had to use condoms but he (Thomas) did not.

*36

13

CAUSE NO. 10CRI217 THE STATE OF TEXAS VS.

THOMAS WAYNE FLORENCE

(3)

IN THE DISTRICT COURT

GALVESTON COUNTY, TEXAS

56" JUDICIAL DISTRICT

MOTION FOR MATERIAL WITNESS BOND

COME NOW THE STATE OF TEXAS, by and through her Assistant District Attorney, Kayla Allen, and request this Honorable Court to issue a writ and a material witness bond on Amber Guamelo. The State hereby requests that the bond be set at $\$25,000$ based on the following facts: (1.) Amber Guamelethas matrial fact witness is, Cause no 10CRI217, offense of Sexual Assault of a Child that occurred on, Fettrity, 29, 2010. She is a material witness, crucial to the presentation of this Sexual Assault of a Child case. Amber Guamelo is the victim in this case. (2.) The District Clerk's Office issued a subpoena for Amber Guamelo on May 23, 2011. Amber Guamelo was served at the District Attorney's Office on May 23, 2011 by Investigator Harry Millo. Also Robbie Guamelo, who is the victim's mother, was also served at the Galveston County District Attorney's Office on July 11, 2011 by investigator Carol Adkins. On July 28, 2011 the Defendant subpoenaed both Robbie and Amber Guamelo for his Franks Hearing on July 29, 2011, in which both appeared and were told be return Tuesday, August 2, 2011 at 8:30 a.m. (3.) Amber Guamelo has been an cooperatys, and has stated to the District Attomey's Office that she will not teatty in the above clause bomber which wasser for trial on August 1, 2011. On August 1, 2011, the District Attorney's Office was contacted by Robbie Guamelo, the mother of Amber Guamelo, and she informed them that Amber had left to go to the store and never returned. Robbie Guamelo also informed the District Attorney's Office that family members of the Defendant had been in contact with her and were persuading her from cooperating with the State. (4.) Credible information was received that Amber Guamelo has been receiving money and benefits from the defendant's sister Sharon Florence in order to persuade her to be unavailable as a witness for trial. Amber reported to her mother that Sharon Florence had given her $\$120$ . Robbie Guamelo believed that would be enough to pay for her to go to Louisiana where the Defendant's brother is living.

*37

*38

AFFIDAVIT for SEARCH WARRANT

In the name and by the authority of the State of Texas, County of Galveston: I. Detective H. Johnson (affiant), being a peace officer under the laws of Texas, and being fully sworn, on oath make the following statements and accusations:

Affiant is a police detective assigned to investigate crimes that occur in Galveston. Affiant has over 10 years of experience as a peace officer. Affiant has personally investigated Galveston police case number 2010-13986. A. There is in Galveston County, Texas, a suspected person described and located as follows:

Thomas Wayne Florence (Black male, date of birth: 6/26/1968 who is currently in the Galveston County Jail.) B. There is at suspected place and premises an item or items that constitute evidence that tends to show that a particular person committed an offense, to-wit; Sexual Assault of a Child.

Affiant requests that a search warrant be issued to search for and seize: A sufficient quantity of a known sample of the

• Saliva from the body of Thomas Wayne Florence, in order that it may be forwarded to a competent forensic laboratory where the known samples can be compared to the suspected samples recovered and preserved as evidence in this case; all in accordance with accepted medical practice. C. It is the belief of the affiant and he hereby charges and accuses that: heretofore, to-wit, on or about the 26th day of February A.D. 2010, and before the making and tiling of this complaint, in the County of Galveston and State of Texas, Thomas Wayne Florence, did then and there intentionally or knowingly cause the penetration of the vagina of Amber Guamelo, a child who was then and there younger than 17 years of age and not the spouse of the defendant, by defendant's penis. D. Affiant has probable cause for said belief by reason of the following facts:

• Affiant learned from reading Galveston Police Department case #2010-12135 (runaway report) that on February 19, 2010 Amber Guamelo had not returned home and was entered into TCIC/NCIC as a runaway.

• Affiant learned from reading Galveston Police Department case #2010-13986 that on February 26, 2010 Officer Garcia #733 called Thomas Wayne Florence in regards to Amber Guamelo's whereabouts. Officer Garcia reported that Thomas Florence had given him information in the past when Amber Guamelo had runaway and was able to provide information on her whereabouts. Affiant learned from reading the police report #2010-13986 that on February 26, 2010 at about 10: 09 p.m. Officer Garcia received a phone call from Lisa Ruiz stating her and Amber Guamelo would turn themselves into the Galveston Police Department. Affiant also learned from reading the police report that Amber Guamelo was transported to Ben Tsuh Hospital for a Psychiatric evaluation for drug abuse, suicidal thoughts and

*39

1. Affiant learned from reading case #2010-13986 that on February 26, 2010 Officer Garcia #733 received a phone call from Robbie Guamelo stating that while at Ben Taub Hospital a pregnancy test was administered to her daughter, Amber Guamelo the result was positive. Affiant also learned from the police report that when Robbie Guamelo asked Amber who the father was Amber replied, "T" (A.K.A. Thomas Florence).
2. On March 9, 2010 Forensic Interviewer Cheryl McCarty conducted a videotaped interview with Amber Guamelo at the Child's Advocacy Center. Affiant observed this interview from a separate room. Affiant observed Amber stated that she is at the Advocacy Center to talk about her and another person named Thomas. Amber said she met Thomas through a friend. Affiant observed Amber say that she is about one month pregnant and the father might be Thomas Florence. Amber describes sex as when "my everything touches their everything and the boy part goes inside the girl part." Affiant observed Amber say that she has had sex with Thomas about eight times at different houses in Galveston. Amber said the last time they had sex was on February 26, 2010. Amber said this happened at a house in Galveston on a mattress on the floor.
3. Affiant spoke with Thomas Florence's wife; Wanette Florence who stated Thomas told her he thought Amber was eighteen years old.
4. Affiant learned from Amber Guamelo that she gave birth to her daughter on October 22, 2010.

At this time, Affiant has not received known comparison samples as requested above. Affiant believes that a laboratory analysis of the samples is needed for comparison. Such laboratory analysis will constitute evidence that Thomas Wayne Florence committed the offense of Sexual Assault of a Child.

Based on aforementioned facts: affiant requests that a search warrant be granted ordering that the said Thomas Wanye Florence be taken to a qualified POLICE person, and that a sufficient quantity of saliva be taken from the body of the previously described person to perform tests, analysis and comparisons; all in accordance with accepted medical and police practice.

Det. W. Johnson 340

Sworn to and subscribed before me, this $$ day of $\frac{1}{2}2011$ at $$

*40 THE COURT: That is true. MR. HALL: Then with regards to Amber, if he's talking about outside the time period. when he knew. her, which is the window during which this sexual = assault is alleged to have occurred on trial for making her pregnant. He's not at all old on trial for making her pregnant. He's not at all old on the time period that he knew her. So, anything that happened outside that time period can't be relevant. THE COURT: Well, anything that can happen ducing the pestation period is a interest. MR. HALL: That's a cold, cold THE COURT: Okay, and what you are, we, haken it exactly, established, when the period is. MR. HALL: Oight. THE COURT: We have established a period that, the State would like to come in, and we are in time. So, I guess my instruction to you is: can you narrow down your question? Number one. It's not relevant when she -- when the witness had sex with other men. Not her. You can talk about Amber within a reasonable time frame. Not like forever, but a reasonable time frame.

*41

6-11-134

RESPONSES OF IT CHAMBERS TO DEROSEIYON ON WRITTEN QUESTIONS

REQUEST NO. 1: Wasn't you the Lt. on duty March 27, 2010? Response: Yes. REQUEST NO. 2: On March 27, 2010 when G.P.D. Officer Clemente Garcia III spoke to you didn't he tell you that I was allegedly wanted for a parole violation?

Response: No. REQUEST NO. 3: Isn't it true that Clemente Garcia III told you on March 27, 2010 that I committed it February 26 or 27, 2010 would assault?

Response: No.

REQUEST NO. 4: Did you sign off on G.P.D. police report no. 2010-20649 March 27, 2010? Response: I approved a portion of that report. REQUEST NO. 5: Did Clemente Garcia III tell you that he was about to illegally and unlawfully arrest stalk me with a statutory null and void TACT BPP arrest warrant that was not signed to (illegally) legally and lawfully arrest me? (with on 3-27-2010).

Response: No. REQUEST NO. 6: Does the shift Lt.(s) on March 27, 2010 review(ed) use of force investigation: documents and video of shift (sgt's) investigation?

Response: Yes. REQUEST NO. 7: Was Clemente Garcia and your cell phones used on 3-27-10 (GPD No. 201020649) was isssused by the City of Galveston?

Response: I do not remember. REQUEST NO. 8: If so what carrier is the city contracted with on 3-27-10? Response: I do not remember. REQUEST NO. 9: What was you and C. Garcia's cell phone(s) numbers on file: records with GPD on 3-27-10?

Response: Objection. FED.R.CIV.P. 26(b). The requested information is beyond that which is relevant to any claim or defense at issue in this case.

*42

$8-11-134$

REOUEST NO. 10: Isn't it a crime to fabricate police reports to cover up an illegal arrest and assault upon a working: college citizen.

Response: It is a crime to culpably engage in illegal activity.

*43

1. Clemente Garcia III, when you exited the personal SUV that you and A. Mommad was in while I was already in handcuffs by Sgt. Chapman, didn't you walk up and said remember me "mother fucker" and kneed me in the top of my eye busting it open?

ANSWER: No. 15. Clemente Garcia III, wasn't you referring to March 24, 2010 when you seen [sic] me at G.P.D.?

ANSWER: I don't understand this question. 16. Clemente Garcia III, isn' Cit tcur that yous allege sexual assault delusions in chief Report No. 2010-13986 was afcped to had occurred on February 26, 2010. And changed to February 27, 2010 events?

ANSWER: No. 17. Sgt. Archie Chapman, didn't you run your patrol car upon the curb in front of a trailer and hit me with your car and knocked me down and I did not slip as you falsely state in your report and that [I] bumped your car after you tried to block me?

ANSWER: I am not Sgt. Archie Chapman. 18. Sgt. Chapman, didn't you, A. Mohammad and other officers present witness Clemente Garcia III, walk up and stated remember me mother fucker and kneed me in the face busting my top eye which EMS stated needed 3-4 stitches?

ANSWER: I am not Sgt. Archie Chapman. 19. Clemente Garcia III, you're aware that Galveston Police Department policies and procedures prohibits unnecessary unprovoked use of force upon a citizen?

ANSWER: I am aware that police department policy prohibits use of unreasonable force. 20. Clemente Garcia III, aren't you're aware that you never had valid, legal documents on 3-27-2010 to arrest, detain me before and after you and Sgt. Chapman assaulted me?

ANSWER: No. I certainly did not assault you and am aware of no information suggesting Sergeant Chapman assaulted you.

*44

RESPONSES TO REQUEST FOR ADMISSION:

(1) Defendant, Clemente Garcia III, didn't you testify that you spoke to me on 2-26-2010 via cell phone at trial and in GPD No. 2010-13986 and that you had a Cricket cell phone?

Response: $⟹$ Deny (2) Defendant, Clemente Garcia III, didn't you testify that you spoke to me on 2-26-2010 via cell phone at trial and in GPD No. 2010-13986 and that you had a Cricket cell phone?

Response: $⟹$ Deny (3) Defendant, Clemente Garcia III, didn't you state in (GPD No. 2010-13986) that you called me on my cell phone no. (832) 388-8329 on February 26, 2010 and February 19, 2010 GPD No. $2010-12135$ .

Response: $⟹$ Admit (4) Defendant Clemente Garcia III, did you call (832) 388-8329 any other dates January or February 2010 ?

Response: $$ Objection. Fed.R.Civ.P. 36(a); 33. (5) Defendant, Clemente Garcia III, was cell phone no. (Cricket) (409) 443-6434 your cell phone on February 26, 2010 are any other dates?

Response: $$ Objection. Fed.R.Civ.P. 36(a); 33. (6) Defendant, Clemente Garcia III, was (409) 443-6434 truly your cell phone?

Response: $$ Objection. Fed.R.Civ.P. 36(a); 33. (7) Defendant, Clemente Garcia III, didn't you testify at Lock $1217=2010-13986$ trial and stated you never received a Cricket bill for your cell phone? (409) 443-6434?

Response: $⟹$ Admit. (8) Defendant, Clemente Garcia III, did you pay your Cricket (409) 443-6434) monthly bill?

Response: $$ Objection. Fed.R.Civ.P. 36(a); 33.

*45

$S-1-134$

ANIENDED RESPONSES TO REQUEST FOR ADMISSION

(1) Defendant, Clemente Garcia III, isn't it true that none of the events cited in GPD No. 2010-13986, you cricel report ever took place on either 2-26 or 27,2010 ?

Response: Deny. (2) Defendant, Clemente Garcia III, didn't you testify that you spoke to me on 2-26-2010 via cell phone at trial and in GPD No. 2010-13986 and that you had a Cricket cell phone?

Response: Deny. (3) Defendant, Clemente Garcia III, didn't you state in (GPD No. 2010-13986) that you calledme on my cell phone no. (832) 388-8329 on February 26, 2010 and February 19, 2010 GPD No. 2010-12135?

Response: Admit. (4) Defendant Clemente Garcia III, did you call (832) 388-8329 any other dates January or February 2010?

Response: $$ Objection. Fed.R.Civ.P. 36(a); 33. (5) Defendant, Clemente Garcia III, was cell phone no. (Cricket) (409) 443-6434 your cell phoneonfebruary 26, 2010 areany other dates?

Response: $$ Objection. Fed.R.Civ.P. 36(a); 33. (6) Defendant, Clemente Garcia III, was (409) 443-6434 truly your cell phone?

Response: $$ Objection. Fed.R.Civ.P. 36(a); 33. (7) Defendant, Clemente Garcia III, didn't you testify at Lock1217-2010-13986 trial and stated youneverreceived a Cricket bill for your cell phone? (409) 443-6434?

Response: Admit. (8) Defendant, Clemente Garcia III, did you pay your Cricket (409) 443-6434) monthly bill?

Response: $$ Objection. Fed.R.Civ.P. 36(a); 33.

*46 2010.

Assuming for argument's sake, that the offending sentence was removed from the affidavit, the remaining portions of the affidavit state probable cause for the arrest warrant and for the search warrant.

In Issue No. 3, appellant claims a different matter. He says that the complaint does not meet the statutory requirements because it does not state him the name and authority of the State of Texas nor conclude with against the dignity of the State." Appellant's reliance on Texas Code of Criminal Procedure, Art. 1.23 is misplaced. He does not appear to know the difference between an indictment or information and an affidavit, alleging a criminal act, "that is, a "complaint".

Texas Code of Criminal Procedure, Art. 15.04 defines a "complaint." If an affidavit before the magistrate or district or county attorney charges the commission of an offense it is called a "complaint." Article 15.05 says that a complaint shall be sufficient, without regard to form, if it has these substantial requisites:

*47

1. It must state the name of the accused, if known, and if not known, must give some reasonably definite description of him.
2. It must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense.
3. It must state the time and place of the commission of the offense, as definitely as can be done by the affiant.
4. It must be signed by the affiant by writing his name or affixing his mark.

The affidavit filed by Officer Holdyshinson in this case meets the requirements of Texas Code of Criminal Precedure.

Appellant's issue No. 6 should be overruled because it is multifarious, and because appellant did not carry his burden of proof in the Franks Hearing. The burden is on the defendant to establish the allegation of perjury or reckless disregard of the truth in an affidavit. He must do this by a preponderance of the evidence. Only if the defendant meets that burden, is the affidavit's false material set aside. If the remaining content of the affidavit still presents probable cause, the complaint or

*48 my complaint was filed (mussmry) by f. P. C. 4.2210 The Appeal count stated that I complaint does not have to state that I'd by Oppas. And intentionally stated I was talking that I search Erlarum. They, your they would have told to grant my speech the 1800 my Regaly Brig the Counts.

*49 98 S. Ct. at 2676 (holding that affidavit must be voided only if remaining content is insufficient to support probable cause). Regarding his complaint that the affidavit alleged an impossible date for the offense, appellant cites no authority that the affidavit was required to allege the exact date of the offense, to be valid, and indeed, the law does not support such a conclusion. See Tex. Code Crim. Proc. Ann. art. 18.01 (Vernon 2005) (providing requirements for affidavit in support of search warrant). Thus, we conclude that the trial court did not err in denying appellant's motion to suppress the arrest warrant and DNA evidence.

Appellant also argues that the complaint associated with the search warrant did not meet the requirements of Code of Criminal Procedure article 1.23 because it did not state in the name and authority of the State of Texas nor conclude with against the dignity of the State." However, these requirements pertain to an indictment, not a "complaint." See id. art. 1.23 (Vernon 2005). Appellant's indictment contained the statutorily required language.

Finally, appellant argues that the trial court erred in failing to make findings of fact and conclusions of law in denying his motion to suppress. However, appellant does not cite any authority indicating the trial court was required to do so. Rather, when the trial court does not make findings of fact, we assume that it made implicit findings of fact that support its ruling, as long as the findings are supported by the record. See Torres, 182 S.W.3d at 902.

*50

$01-11-00822-6K$

FILED IN 1ST COURT OF APPEALS HOUSTON, TEXAS

OL: 282011 CLERK'S RECORD M KARIRINE MCCULLOUGH In the ${56}^{\text{TH}}$ District Court of Galveston County, Texas. Honorable LONNIE COX, Judge Presiding THE STATE OF TEXAS MAIL RECEIVED VS.

THOMAS WAYNE FLORENCE

Atomey for Appellee: JACK ROADY Criminal District Attomey 600 59TH STREET, SUITE 1001 GALVESTON, TEXAS 77551 Phone No.: (409) 766-2355 Bar No.: 04276600 Bar No.: 24027780 Delivered to the FIRST Judicial District Court of Appeals for Texas, in Houston, Texas, by mail on the 1 th day of 10thday, 2011.

JASON E. MURRAY

District Clerk Galveston County

By: RYouni-mugla, Deputy Clerk 1 Court of Appeals Cause No. 01-11-00822-6R Filed in the FIRST Court of Appeals; Houston, Texas, on this the $$ day of 2011.

M. KARINNE MCCULLOUGH, CLERK,

$$ , Deputy Clerk

*51 Evidence/Property Receipt ..... 568 Motion for Independent Examination of DNA Evidence ..... 572 Motion to Appoint Expert to Review the State's DNA Testing Results. ..... 575 State's Fourth Amended Proposed Witness List ..... 580 State's First Motion for Continuance ..... 582 State's Fifth Amended Proposed Witness List ..... 599 Motion for Appointment of Investigator ..... 617 Supplemental Evidence/Property Receipt ..... 619 Motion for Independent Handwriting Analysis. ..... 621 Order on Motion to Recuse After Hearing ..... 624 VOLUME IV Pro Se Defendant's Objection to the Impeding of Discovery by the States District Attorney's Brandon Sims, Kayla Allen in Bad Faith Filing Falsified, Altered, Omitted Records ..... 625 Pro.Se.Defendant's Objections to Stated Issues ..... 629 Pro Se Motion for Court to Order the January 4, 2011 Video Turned Over and Held That's in Possession of the Sheriff ..... 631 Pro. Se Motion for Evidence Favorable to the Defendant and Brief in Support Thereof ..... 636 Pro Se Motion to Dismiss Court-Appointed Counsel ..... 640 Pro Se Defendant's Objection to the Impeding of Discovery by the States District Attorney's Brandon Sims, Kayla Allen in Bad Faith Filing Falsified, Altered, Omitted Records ..... 643 Pro Se Motion for Change of Venue ..... 663 Pro. Se Defendant's Motion for a Franks Hearing to Suppress the Invalid Falsified Indictment ..... 667 Pro. Se.Defendant's Motion for Bond Dismissal ..... 670 Pro Se Letter ..... 672 Pro Se Defendant's Motion for a Franks Evidentiary Hearing this is the Defendant's $2^{\text{nd}}$ Motion Others Filed Went Unanswered ..... 674 Order to Release Medical Records ..... 771 State Commission on Judicial Conduct ..... 772 State Commission on Judicial Conduct ..... 793

*52

A9 (F)

VOLUME V Pro Se Letter ..... 809 Pro Se Defendant's Motion for Disclosure of Grand Jury Material in Reference to Cause No: 106R1217 Under Tex: Code Grim: Proc:Ann:Art:20.02(d). ..... 908 Pro Se Defendant Motion to Honorable Judge Lonnie Cox of Said Court to Order an Investigation into the Fabrication; Falsified Charge and Documents File and Submitted to his Court in the Bad Faith Malicious Prosecution and Acts by the State and Agents ..... 918 Pro Se Letter ..... 940 District Attorney's Discovery List ..... 946 Notice of Filing of Medical Records ..... 947 State's Sixth Amended Proposed Witness List ..... 948 Notice of Filing Business Records ..... 951 Pro Se Defendant's Refiled Motion for the Request of Funds for Expert Witness Funds, See April 15, 2011 Letter from this Court to the Defendant ..... 1015 VOLUME VI Pro Se Defendant's Motion for the Court to Order the Following to Produce the Following Original Documents to the Defendant and Court to Review ..... 1017 Pro Se Defendant's Supplement to his Motion to Suppress Evidence Fruits of Illegal Search and Arrest Motions that was filed March 21, 2011; April 1, 2011 April 20, 2011 ..... 1020 District Attorney's Discovery List ..... 1037 District Attorney's Discovery List ..... 1038 Motion to Quash Subpoenas ..... 1039 Pro Se Defendant's Motion to Request for Continuance To Have His Own Expert Rick W. Staub PhD and Orchid Cell Mark to Conduct an Independent Examination of the State's Primary DNA Evidence ..... 1041 Defendant's Motion in Limine ..... 1049 State's First Amended Motion in Limine ..... 1056 State's Seventh Amended Proposed Witness List ..... 1059 Arraignment - Felony ..... 1062 Pro Se Punishment Election ..... 1063 Defense Attorney Strike List ..... 1064 District Attorney Strike List ..... 1068 Jury List ..... $1072A$

*53

A8 (9)

Pro Se Motion to Quash Indictment. ..... 1073 Motion for Material Witness Bond and Order. ..... 1076 Fourth Amended State's Intent to Introduce Extraneous Offenses in Case in Chief and in Punishment Phase of Trial ..... 1079 Pro Se Art. 29.13 Motion for Contihuance After Trial Begins and Order. ..... 1082 Pro Se Defendant's Motion to Dismiss / Mistrial ..... 1085 Charge of the Court and Verdict. ..... 1087 Jury Communication ..... 1092 Charge of the Court on Punishment and Verdict on Punishment ..... 1093 Jury Communication ..... 1100 Jury Communication ..... 1101 Jury Communication ..... 1102 Judgment of Conviction by Jury ..... 1103 Trial Court Certification of Defendants Right of Appeal ..... 1110 Motion to Withdraw as Attorney of Record and Request for Appointment of Counsel on Appeal and Order.. ..... 1111 Notice of Appeal ..... 1112 Pauper's Oath ..... 1113 Notice of Appointment. ..... 1114 Pro. Se Motion for New Trial ..... 1115 Pro. Se Supplement to Motion for New Trial ..... 1148 Pro Se Letter - Change of Address ..... 1152 Motion for Withdrawal of Counsel and Order. ..... 1154 Supplemental Motion for New Trial ..... 1157 Request for Preparation of Reporter's Record and Designation of Matters to be Included and Order. ..... 1159 Receipt letter from Court of Appeals ..... 1162 Writ of Attachment and Return ..... 1164 Judgment NISI ..... 1165 Precept and Return ..... 1166 Correspondence from First Court of Appeals ..... 1167

*54 Pro Se Defendant's Motion for Immediate Discharge, Release, Pretr the Voided Conviction Without Delay ..... 1168 Pro Se Notice to the Court ..... 1172 Pro Se Defendant's Motion to File Evidence Take Judicial Notice ..... 1182 Pro Se Notice to Court Reporter T.R.A.P. Requirements ..... 1185 Bench Warrant and Return ..... 1188 Pro Se Defendant Motion to Homeable Judges, Annie Cox of Said Court to Order an Investigation into the Fabricated Fatulfed Charles and Documents File and Submitted to His Court in the Bad Faith Malicious prosecution and Acts by the State and Agents ..... 1190 Pro Se Petitioner's Motion Under T.R.A.P.2. Suspension of Rules ..... 1198 Sheriff's Certificate ..... 1202 Clerk's Certificate ..... 1203

*55

A8 (b)

THE STATE OF TEXAS VS THOMAS WAYNE FLORENCE TRANSCRIPT IN THE ${56}^{\text{TH}}$ DISTRICT COURT

PAGE

| INDEX | PAGE | | :--: | :--: | | VOLUME I | 1 | | Title Page | 2 | | Index | 10 | | Caption | 11 | | Indictment | 13 | | Docket Sheet | 19 | | Pauper's Oath | 21 | | Statutory Magistrate's Warning | 22 | | Request for Counsel | 23 | | Notice of Appointment. | 24 | | Notice of Appointment. | 25 | | Motion for Substitution of Counsel and Order. | 28 | | Pro Se Letter | 29 | | Pro Se Motion to Appear Before the Grand Jury of Galveston County | 30 | | Motion to Withdraw as Counsel and Order. | 33 | | Pro Se Motion to Appear Before the Grand Jury of Galveston County. | 36 | | Precept and Return | 37 | | Pro Se Defendant's Motion to Quash Indictment. | 64 | | Pro Se Habeas Corpus Combined Writ of Mandamus. | 84 | | Pro Se Habeas Corpus Combined Writ of Mandamus. | 91 | | Pro Se Motion for Fair and Speedy Trial. | 92 | | Pro Se Defendant's Motion to Quash Indictment. | 92 | | Pro Se Defendant's Motion for the Request of Experts Testimony and Evidence to be Produced at the Probable Cause Hearing. | 97 | | Pro Se Defendant's Motion for Immediate Probable Cause Hearing, Falsely Changed Arrestes and Detained. | 99 |

*56 Pro Se Motion for Fair and Speedy Trial ..... 110 Pro Se Motion for an Immediate Probable Cause Hearing Falsely Charged Arrested and Detained ..... 111 Pro Se Letter ..... 132 Pro Se Motion to Quash Indictment ..... 136 Pro Se Letter ..... 138 Criminal Docket Control Order ..... 142 Agreed Discovery Order ..... 143 Pro Se Letter ..... 145 Pro Se Motion for Court to Rule on the Defendant's Probable Cause Motion ..... 164 Notice of State's Intent to Use Statement of Child Abuse Victim as to Jennifer Reece ..... 173 State's Proposed Witness List. ..... 175 Notice of State's Intent to Introduce Extraneous Offenses in Case in Chief and Punishment Phase ..... 177 Court Correspondence to Attorney Briggs ..... 180 Pro Se Letter ..... 182 State's Motion for Continuance and Request for Preferential Setting and Order. ..... 192 Pro Se Judicial and Legal Notice to the Honorable Court ..... 195 Court of Appeals Memorandum Opinion ..... 202 Pro Se Defendant's Motion to Set Aside Indictmen ..... 204 Pro Se Defendant's Motion for Approval of Private Investigator in the Above Styled Cause ..... 222 VOLUME II Pro Se Defendant's Motion to Dismiss ..... 224 Pro Se Defendant's Motion for Approval of Expert Witness Funds ..... 259 Court of Appeals Correspondence ..... 261 State's Motion for Release of Medical Information and Order ..... 262 State's Motion for Release of Medical Information and Order ..... 265 Inmate Response Letter ..... 268 Notice of Filing Business - Medical Records ..... 289 State's Motion for Discovery of Expert Witness Article 39.14(b) C.C.P. ..... 291 (b)

*57 State's First Amended Proposed Witness List ..... 292 First Amended State's Intent to Introduce Extraneous Offenses in Case in Chief and in Punishment Phase of Trial ..... 294 State's Motion in Limine ..... 296 Second Amended State's Intent to Introduce Extraneous Offenses in Case in Chief and in Punishment Phase of Trial ..... 299 Notice of Filing Business - Medical Records ..... 302 Motion for Independent Examination of DNA Evidence ..... 303 Motion for Independent Examination of DNA Evidence ..... 305 First Amended Motion for Independent Examination of DNA Evidence and Order ..... 307 Pro Se Defendant's Motion for Subpoena of Records that's Evidence in Said Cause ..... 312 Pro Se Defendant's Motion for Approval of Private Investigator Funds in the above Styled Cause ..... 314 Pro Se Defendant's Motion for Approval of Expert Witness Funds ..... 316 Pro Se Notice to the Court and State that Defendant will be a part of his Defense Team at Trial ..... 318 Motion to Withdraw as Counsel and Order ..... 319 Deputy Reporter Statement ..... 322 Pro Se Motion for Discovery and Inspection of Evidence ..... 323 Pro Se Notice to Court, District Clerk Under Art. 1.05 Rights of Accused ..... 326 Pro. Se Defendant's Motion for Discharge for Delay and Defendant's Motion to Set Aside Indictment ..... 328 Pro Se Defendant's Motion for Approval of Expert Witness Fund ..... 334 Notice of Appointment. ..... 339 Pro Se Defendant's Notice to the Court Under the Penalty of Perjury ..... 340 Pro Se Letter ..... 394 Pro Se Defendant's Motion and Notice to Court Judge Lonnie Cox the Defendant Needs Said Record and Evidence Subpoenaed to Defendant ASAP ..... 396 Pro Se Motion for Independent Examination and Review of the Galveston Police Department Video Statement of Robbie Guarnelo and the Child Advocacy Video Statement of Amber Guarnelo ..... 402 Pro Se Defendant's Motion to the Court to Conduct an in Camera Review of Evidence and Reports in 10CR1217 ..... 404 Pro Se Defendant's Motion for Expert Witness Funds for a Handwriting Expert ..... 407

*58

A3 (d)

VOLUME III Pro Se Motion to Recuse Judge - Defendant's Motion for Transfer of Cause 10CR1217 ..... 415 Pro Se Defendant's Motion to Suppress Fruits of Illegal Arrest and Detention of Defendant ..... 418 Pro Se Defendant's Supplement to Motion to Suppress the Fruits of Illegal Arrest and Detention of Defendant ..... 425 Pro Se Defendant's Notice to the Court Under the Penalty of Perjury ..... 427 Pro Se Letter ..... 434 Pro Se Letter ..... 435 Pro Se Defendant's Second Motion for Speedy Trial Act Pursuant to Vernon's Ann. Tex: C.C.P. Art. 32A.02; and. Grestein v. Pugh; 4120 US 103:114 (U.S.) Court ..... 436 Pro Se Defendant's Motion for Franks Hearing - Defendant's Motion to Dismiss ..... 445 Pro Se Defendant's Motion to Suppress Fruits of Illegal Arrest and Detention of Defendant ..... 449 Pro Se Notice to Galveston County Sheriff ..... 458 Order on Motion to Recuse and to Refer to Presiding Judge ..... 459 Pro Se Defendant's Motion to the Court to Order the State to Produce a Copy of the Original Chain of Custody Records from the Galveston County Police Department of Holly Johnson ..... 460 Pro Se Notice to Galveston County Sheriff ..... 469 Statements from Amber Guariielo ..... 470 Pro Se Notice to Court to Take Judicial Notice ..... 473 Notice of Hearing / Acknowledgment / Order of Assignment ..... 485 Order Denying Defendant's Motion for an Expert Witness ..... 488 Order Granting Defendant's Motion for DNA Testing ..... 489 Order Granting Defendant's Motion for an Investigator ..... 490 Order Denying Defendant's Motion for Discharge ..... 491 Pro Se Defendant's Motion for Bond Dismissal ..... 492 Notice of Filing Business - Medical Records ..... 496 Third Amended State's Intent to Introduce Extraneous Offenses in Case in Chief and in Punishment Phase of Trial ..... 561 State's Second Amended Proposed Witness List ..... 564 State's Third Amended Proposed Witness List ..... 566

*59 BEFORE ME, the undersigned authority, this day personally appeared

Brantley Foster, D.P.S Narcotic Agent

who, after being sworn, upon oath deposes and says (that he has good reason that he is, and does, believe

and charge) that one

Jerry Wayne Rumph

on (or about) the

• Oth — day of
• October —
• A. D. 19:22 , and before the making

and filing of this complaint, in Justice of Peace Precinct No. 4

• Bell

County, State of Texas, did then and there unlawfully and wilfully

---

Sale of herein

---

Brantley, D.P.S Narcotic Agent

of the state.

• Oth — day of
• October —
• A. D. 19:22 , and before the
• A. D. 19:22 , and
• O. D. 20:19

Sworn to and subscribed before me, this

• Oth — day of
• October —
• A. D. 19:22 , and
• O. D. 20:19

HUGH L. TAGGART District County, N. J. County, Texas

• Oth — day of
• October —
• A. D. 19:22 , and
• O. D. 20:19

Justice of the Peace Precinct No. 4

• Bell — day of

• District County, N. J. County, Texas

• Oth — day of

• October —
• A. D. 19:22 , and
• O. D. 20:19

County, Texas.

*60

COME LABE CLERKIS ORIGINAL

2014-7 A: 2

NAMI: Robledg, Roberto OFFENSE: CHARGE: Failure to Tdosty (Que ble 700) CODE: MAGNO: 4201622 COUNTY COURT CASE NO: 213125

IN:THES UNIVANIMY'ST THOIRTH CONDRESSIVE

Before me the undersigned authority on this day personally appeared affiant, who, after being by me duly swom on outh deposes and says that affiant has goodrealsentorbeliexcoand doesbeliexy that in the County of Bexar and the State of Texas, and before the making and tiling of this complaint, on the ${20}^{\text{th}}$ day of - April - - 2007 Robledg Robos to - - - committed the offense of failure to Tdosty (Que ble 700) $$ againsthefiesies and dignity 96 the State.

$F$ Rulso 180

SWORN TO AND SUBSCRIBED before me by the Affiant, a credible person, on this $$ day of $\to$ MAY 012007 $$ 200 $$ .

*61

AFFIDAVIT AND COMPLAINT FOR ARREST WARRANT

The undersigned Aflant, being a Peace Officer under the Laws of Texas and being duly sworn, on oath makes the following statements and accusations:

1. There is in the Galveston County, Texas, a person described as follows:

Thomas Wayne Florence: Date of Birth: 6/26/1968; Race: Black: Sex: Male; Height: 5'08"; Weight: 207; Hair: Black: Eyes: Brown: Social Security Number: 466-1968; Address: 5102 Avenue O 1/2, Galveston Texas 77551 2. The said Thomas Wayne Florence is the suspect in an alleged Sexual Assault of a Child. 3. It is the belief of Affiant, and he hereby charges and accuses, that: 4. Thomas Wayne Florence, in Galveston County, Texas, on or about the date of February 26, 2010, did then and there intentionally or knowingly cause the penetration of the vagina of Amber Guamelo, a child who was then and there younger than 17 years of age and not the spouse of the defiendunt, by defendant's penis.

Affiant has probable cause for said belief by reason of the following facts: Your Affiant, Detective Holly Johnson #340, is employed as a Peace Officer with the Galveston Police Department and charged with investigating crimes that occur in the City of Galveston, Galveston County, in the State of Texas. Affiant has been a Texas Peace Officer for over 9 years employed by the Galveston Police Department. Affiant is currently assigned to the Criminal Investigations Unit of the Galveston Police Department.

On March 2, 2010, Affiant was assigned follow-up investigation to Galveston Police Department case number 2010-13986 (Sexual Assault of a Child). Affiant learned the following facts from the case report:

1.) Affiant learned from reading Galveston Police Department case #2010-12135 (runaway report) that on Echruary 19, 2010 Amber Guamelo had not returned home and was entered into TCIC/NCIC as a runaway. 2.) Affiant learned from reading Galveston Police Department case #2010-13986 that on February 26, 2010 Officer Garcia #733 called Thomas Wayne Florence in regards to Amber Guamelo's whereabouts. Officer Garcia reported that Thomas Florence had given him information in the past when Amber Guamelo had runaway and was able to provide information on her whereabouts. Affiant learned from reading the police report #2010-13986 that on February 26, 2010 at about 10: 09 p.m. Officer Garcia received a phone call from Lisa Ruiz stating her and Amber Guamelo would turn themselves into the Galveston Police Department. Affiant also learned from reading

*62

A1160

the police report that Amber Guarndo was transported to Ben Taub Hospital for a Psychiatric evaluation for drug abuse, suicidal thoughts and attempts. 3.) Affiant learned from reading case #2010-13986 that on February 26, 2010 Officer Garcia #733 received a phone call from Robbic Guarnelo stating that while at Ben Taub Hospital a pregnancy test was administered to her daughter. Amber Guarndo the result was positive. Affiant also learned from the police report that when Robbic Guarnelo asked Amber who the father was Amber replied, "T" (A.K.A. Thomas Florence). 4.) On March 9, 2010 Forensic Interviewer Cheryl McCarty conducted a videotaped interview with Amber Guarndo at the Child's Advocacy Center. Affiant observed this interview from a separate room. Affiant observed Amber stated that she is at the Advocacy Center to talk about her and another person named Thomas. Amber said she met Thomas through a friend. Affiant observed Amber say that she is about one month pregnant and the father might be Thomas Florence. Amber describes sex as when "my everything touches their everything and the boy part goes inside the girl part." Affiant observed Amber say that she has had sex with Thomas about eight times at different houses in Galveston. Amber said the last time they had sex was on Echrvary 26. 2010. Amber said this happened at a house in Galveston on a mattress on the floor. 5.) Affiant spoke with Thomas Florence's wife; Wanette Florence who stated Thomas told her he thought Amber was eighteen years old. 6.) Affiant spoke with A.D.A. Kayla Allen who advised to charge Thomas Florence with Sexual Assault of a Child and recommended bond be set at $\$250,000$ .

Based on the above probable cause Affiant requests an arrest warrant be issued for the above listed Thomas Wayne Florence.

$\frac{\text{Get}4\text{C}}{4\text{Affiant}}*340$

Sworn and subscribed to before me by said Affiant on this the 22nd day of April, 2010

*63

*64

AFFIDAVIT AND COMPLAINT FOR ARREST WARRANT

THE STATE OF TEXAS

COUNTY OF GALVESTON

The undersigned Affiant, being a Peace Officer under the Laws of Texas and being duly swom, on oath makes the following statements and accusations:

1. There is in the Galveston County, Texas, a person described as follows:

Thomas Wayne Florence; Date of Birth: 6/26/1968; Race: Black; Sex: Male; Height: 5'08": Weight: 207; Hair: Black; Eyes: Brown; Social Security Number: 466-39-0135; Address: 5102 Avenue $01/2$ , Galveston Texas 77551 2. The said Thomas Wayne Florence is the suspect in an alleged Sexual Assault of a Child. 3. It is the belief of Affiant, and he hereby charges and accuses, that: 4. Thomas Wayne Florence, in Galveston County, Texas, on or about the date of February 26, 2010, did then and there intentionally or knowingly cause the penetration of the vagina of Amber Guamelo, a child who was then and there younger than 17 years of age and not the spouse of the defendant, by defendant's penis. 5. Affiant has probable cause for said belief by reason of the following facts:

Your Affiant, Detective Holly Johnson #340, is employed as a Peace Officer with the Galveston Police Department and charged with investigating crimes that occur in the City of Galveston, Galveston County, in the State of Texas. Affiant has been a Texas Peace Officer for over 9 years employed by the Galveston Police Department. Affiant is currently assigned to the Criminal Investigations Unit of the Galveston Police Department.

On March 2, 2010, Affiant was assigned follow-up investigation to Galveston Police Department case number 2010-13986 (Sexual Assault of a Child). Affiant learned the following facts from the case report: 1.) Affiant learned from reading Galveston Police Department case #2010-12135 (runaway report) that on February 19, 2010 Amber Guamelo had not returned home and was entered into TCIC/NCIC as a runaway. 2.) Affiant learned from reading Galveston Police Department case #2010-13986 that on February 26, 2010 Officer Garcia #733 called Thomas Wayne Florence in regards to Amber Guamelo's whereabouts. Officer Garcia reported that Thomas Florence had given him information in the past when Amber Guamelo had runaway and was able to provide information on her whereabouts. Affiant learned from reading the police report #2010-13986 that on February 26, 2010 at about 10: 09 p.m. Officer Garcia received a phone call from Lisa Ruiz stating her and Amber Guamelo would turn themselves into the Galveston Police Department. Affiant also learned from reading

*65 the police report that Amber Guarnelo was transported to Ben Taub Hospital for a Psychiatric evaluation for drug abuse, suicidal thoughts and attempts. 3.) Affiant learned from reading case #2010-13986 that on February 26, 2010 Officer Garcia #733 received a phone call from Robbie Guarnelo stating that while at Ben Taub Hospital a pregnancy test was administered to her daughter, Amber Guarnelo the result was positive. Affiant also learned from the police report that when Robbie Guarnelo asked Amber who the father was Amber replied, "T" (A.K.A. Thomas Florence). 4.) On March 9, 2010 Forensic Interviewer Cheryl McCarty conducted a videotaped interview with Amber Guarnelo at the Child's Advocacy Center. Affiant observed this interview from a separate room. Affiant observed Amber stated that she is at the Advocacy Center to talk about her and another person named Thomas. Amber said she met Thomas through a friend. Affiant observed Amber say that she is about one month pregnant and the father might be Thomas Florence. Amber describes sex as when "my everything touches their everything and the boy part goes inside the girl part." Affiant observed Amber say that she has had sex with Thomas about eight times at different houses in Galveston. Ambersaid the last time they had sex was on February 26, 2010. Amber said this happened at a house in Galveston on a mattress on the floor. 5.) Affiant spoke with Thomas Florence's wife; Wanette Florence who stated Thomas told her he thought Amber was eighteen years old. 6.) Affiant spoke with A.D.A. Kayla Allen who advised to charge Thomas Florence with Sexual Assault of a Child and recommended bond be set at $\$250,000$ .

Based on the above probable cause Affiant requests an arrest warrant be issued for the above listed Thomas Wayne Florence.

WHEREFORE, Affiant requests for issuance of a warrant that will authorize him to arrest the said Thomas Wayne Florence.

$$\frac{\text{Get}4\text{Cphman}}{4}340$$

Sworn and subscribed to before me by said Affiant on this the 22nd day of April, 2010

*66 THE DEFENDANT: Can I approach the witness, let her refresh her memory, your Honor? MS. ALLEN: Your Honor, if she's not familiar with it, I THE COURT: Yeah. If she's not familiar with it, she's just not familiar. She did not say that she didn't remember it. THE DEFENDANT: I'll rephrase the question.

THE COURT: Okay. Q. (BY-THE-DEFENDANT) Are you aware that all prosecutions in the state-of Texas should be carried on in the name and authority of the state-of Texas and conclude with, against the peace, and the state?

A. Yes: Q. And your probable cause for affidavit for warant failed to comply with that is charcercent? THE DEFENDANT: Your Honor, may I approach the witness?

THE COURT: Sure. THE DEFENDANT: Exhibit, I would like to show Exhibit Novyly affidavit for probable cause for a.

*67 MS. ALLEN: Defendant's 11 ? THE DEFENDANT: Yes, ma'am. MS. ALLEN: You're going to show it to her? THE DEFENDANT: Then I'm going to submit it into evidence. THE COURT: One step at a time. Q. (BY THE DEFENDANT) Review it and see if you see it does comply with Article 1.233.

MS. ALLEN: Your RONor TIm going to object: It calls for a legal conclusion. THE COURT: Sustained I sustained the objection. What's your next question? THE DEFENDANT: I would just like to ask her do she -- THE COURT: You already asked her that question. Ask her another one. Q. (BY THE DEFENDANT) You recognize the document? A. Yes, sir. Q. What is it? A. It is my affidavit and complaint for an arrest warrant. Q. For who? A. For you. Q. For what charge?

*68 A. Sexual assault of a child. Q. Occurring? A. In -- are you wanting me to read, like, No. 4? Q. Yes, ma'am. A. Item No. 4 --

MS. ALLEN: Your Honor, I'm going to object to her reading from the document that's not been entered.

THE COURT: Can't read it out loud. A. (CONTINUING) Yes. Q. (BY THE DEFENDANT) States that the crime was allegedly committed on what date?

A. Says on or about February 26th, 2010. Q. Does that affiadavitcomplaint for arrest warrant states that language in the name and authority of the state of Texas"?

MS. ALLEN. Your Honor, I'm going to object to reference. We have a proper indictment here. And the ssses of the retient is not relevant.

THE DEFENDANT: Your Honor, that's the only way --

MS. ALLEN: And the indictment complies with the law.

THE DEFENDANT: That's the only way the indictments 媒体ies used, your Honor, was off the problem

*69

4

cause for affidavit for warrant issued for my arrest. THE COURT: If I'm not mistaken, when the State read the indictment, she finished with the words, "In the name and by the authority of the state of Texas." That's the indictment. This is the affidavit compdaint and arrest warrant. Different. THE DEFENDANT: This is a document that was presented to the Grand Jury to get me indicted. It wasn't no testimony from no other witnesses on nobody. The State only presented this document here and the police report to the Grand Jury to get me indicted, your Honor: Q. (BY THE DEFENDANT) Is that language anywhere. on there, ma'am? MS. ALLEN. Object: omovederance your. Honor: THE COURT: Sustained. Not relevant. Moves along. THE DEFENDANT: Your Honor, did like to submit Exhibit No. 11: I have doneey your Honor, probable cause affidavit for arrest warrant, because it does not comply with Texas Code of Criminal Procedure, your Honor.

*70

112

there is, hearyy, and through that, documents And it's irrelowant. THE COURT: Okay... Ladies and gentlemen, now she's, or the for you to take your break for the day. I will see you tomorrow at 9:00 o'clock. Please remember, don't think about the-case. (open court, Defendant present, no Jury) MR. FLEMING: For the Court, Mr. Phillip Chacko, C-h-a-c-k-o, is here from UTMB with records that we -- that the defense, that Mr. Florence has subpoenaed for the time period regarding Amber Guarnelo's stay or hospitalization at UTMB. He's brought those records here today by affidavit. And the Court has ordered Mr. Chacko to turn those over to the defense. THE COURT: Okay. There's really two issues here. One issue is I'm thinking the HIPAA requirement that I order UTMB to turn the documents over. I'm guessing that that's the first thing that you're asking; is that right, sir? MR. CHACKO: Yes, it is. THE COURT: In regard to that, yes, I'm ordering you to release those records to the Defendant. But what's even more in question at this particular time now, is there any objection to the authentication of these records?

*71

EVIDENCE/PROPERTY RECEIPT
I, THOMAS WAYNE FLORENCE, ACKNOWLEDGE RECEIPT OF THE FOLLOWING ITEM/S OF EVIDENCE/PROPERTY FROM

BRANDON SIMS, ASSISTANT DISTRICT ATTORNEY, WITH THE GALVESTON COUNTY DISTRICT ATTORNEY'S OFFICE.

DATE 5-25-11 GAUSE NUMBER: 106RI217 - State vs Thomas Wayne Florence CASE NUMBER: 2010-13986 NAME OF RECEIVING AGENCY: GPD ITEM/S: Thomas Wayne Florence's sexual assault Indictment w/ 2 enhancements 1 DVD: video recorded statements from Robbie Guarnelo Waiver of Search from Amber Guarnelo Affidavit and Complaint for Arrest Warrant Warrant for Arrest of Thomas Wayne Florence (signed by IPH) Affidavit for Search Warrant and Search Warrant for Thomas Wayne Florence's Saliva(signed and unsigned copy)

Offense Reports/Suppliments for Cause 2010-13986

• Gancia
• Date of Report 2-29-10
• Date of Report 4-10-10
• Date of report 4-19-10
• 2 H. Johnson
• Date of report 2-26-10
• Date of report 2-26-11
• 2 Durr

1

*72

${\mathrm{A}\mathrm{l}}_3$

ODate of report 4-22-10

Offense Reports/Supplements for GPD Case #'s:

$10-1005$

$✓$ - Morse o. Date of Report 1-4-09

• • 1 - Loyd o. Date of Report 1-8-10 $2010-1231$ $✓$ - B.South/K.Miller
• Date of report 1-5-10
• • G Garcia
• Date of Report 1-5-10 $✓$ - J.Loyd
• Date of Report 1-8-10 $2010-6463$ $✓$ C. Doucette
• Date of Report 1-27-10
• G García
• Date of Report 1-31-10
• Date of Report 2-2-10 (includes letter from Amber Guarnelo to her parents)

2010-12135 $✓$ - C Doucette - Date of report 2-19-10

• C García
• Date of report 2-26-10 $2010-13774$ $✓$ - J Eloyd
• Date of report 2-27-10
• Date of report 2-26-10 $2010-20649$
• C. Garcia
• Date of report 3-27-10 $2010-10125$ ( - 3 photos
• Report from C. Teague on 2-12-10

*73

• Report from E. Garcia on 2-12-10
• Report from C. Palmer on 2-16-10
• Report from D Fillmore on 3-24-10

2010-21249

• Report from Sgt. K. Weems on 3-27-10
• Report from A. Mohammud on 3-27-10
• Report from C. Garcia on 3-27-10
• Report from A. Chapman on 3-27-10
• One (1) In Car Video of defendant evading arrest/being arrested on 3-27-2010
• Six (6) photos of defendant's injuries when apprehended on 3-27-10

Amber Guarnelo Waiver of Search from 1-4-10 Paperwork from UNT Center for Human Identification Forensic Laboratory (case # 110120)

• Chain of Custody Evidence log-in form Forensic evidence submission form Evidence documentation worksheet STR data concordance checklist Parentage calculations Part I and Part II Pictures Forensic case log sheet Chelex DNA extraction: blood, stains and other bio material Quantifiler duo worksheet STR Amplification worksheet
• Forensic DNA report from February 28, 2011
• Letter from Thomas Wayne Florence to Mr. and Mrs. Guarnelo (dated 3-14-11) Five (5) black and white photos of Jada Guarnelo [color photos will be used at trial and will be provided upon request]

T-Mobile Telephone Records (number registered to Robbie Guarnelo) Ben Taub Hospital Medical records (Re: Amber Guarnelo) UTMB Hospital Medical Records (Re: Amber Guarnelo)

State's Motions:

• Notice of filing business-medical records (Ben Taub Hospital)
• Notice of filing-business-medical records (UTMB)
• State's motion for discovery of expert witness

*74 ( State's first amended proposed witness list (6) State's second amended proposed witness list

• State's first amended state's intent to introduce extraneous offenses in case in chief and in punishment phase of trial
• Second amended state's intent to introduce extraneous offenses in case in chief and in punishment phase of trial
• Third amended state's intent to introduce extraneous offenses in case in chief and in punishment phase of trial
• State's motion in limine
• State's motion for release of medical information (Re: Amber Guarnelo)
• Notice of filing business-medical records (T-Mobile records for telephone number 409-256-9442) **State will make arrangements for defendant and Marcus Fleming to view the Child Advocacy Video at the District Attorney's Office upon request.

All physical evidence (i.e. blonde wig and cell phone(s)) are being stored at the Galveston Police Department property room. Please contact me to make arrangements to view the evidence before the pretrial conference.

RADIATO HUMMONS PRINCIPLESS

THOMAS WAYNE FLORENCE, Pro Se Defendant

MARCUSE FLEMING, "stand-by" defense counsel

DATE

*75

*76

In the Name and by Authority of the State of Texas:

TIIE URAND JURORS for the Jounty of Galveston, state aforesaid, duly organized as such at the JULY Tarm, A.D., 2010, of the District Court of said Jounty, 122ND Judicial District of Texas, upon their oaths in said Court present that TICMAS WAYNE-FLORENCE on or about the 27TH day of FEBRUARY 2010, 2010, and interior to the presentment of this indictment in the Jounty of tICMAS on and atare of tIJAS, 112 than and there intentionally or knowingly. TUSSE the penetration of the sexual organ of Amber, Quaeneio, whichd who was then and there younger than 17 years of age, by Thomas Wayne, Florence's sexuatorgan

FIRST ENHANCEMENT

And it is further presented in and to said Court that, prior to the commission of the aforesaid offense (hereafter atyled the primary offense), on the ${24}^{\text{th}}$ day of December, 1986, in cause number H50RO840 in the ${10}^{\text{th}}$ Judicial District Court of Galveston County, Texas, the defendant was convicted of the felony offense of Burglary of a Vehicle,

SECOND ENHANCEMENT And it is further presented in and to said COHt that, prior to the commission of the primary offense, and after the conviction in cause number 85CRO840 was final, the defendant committed the felony offense of Possession of a Controlled Substance, to-wit: Cocaine and was convicted on the ${19}^{\text{th}}$ day of February, 1993, in cause number 91CRO155 in the ${122}^{\text{nd}}$ Judicial District Court of Galveston County, Texas, against the peace and dignity of the State.

*77

AIS

first. Q. So when you received on $\$22\mathrm{c}\mathrm{m}\mathrm{c}\mathrm{m}\mathrm{m}\mathrm{m}\mathrm{m}$ , you did your investigation and you just went off of what they told you; is that what you stated? A) A) A documented what was to be done, yes, 24 Q. So when you see me at the Galveston Police Department or you bring in a Hispanic male on March 24, B) B) and you said, "Oh, you recall -- oh, you T?, when you bringing in a Hispanic? It was March 24th. This alleged crime happened, allegedly, 24/24. Why didn't you detain me? Why didn't you question me then, if being a well-trained police officer?

B) You said you already received the allegations on 27/24/24. I turned myself in at G. P. D. on March 24th

for an alleged crime, alleged family violence. You were bringing in a Hispanic male. Officer Johnson was booking me; and you said, "Oh, you T?" And then you booked in the Hispanic male.

C) A) A appropriate form I received the allegations these days after you from what you are telling me, three days after you were arrested for whatever incident. I didn't have those allegations at the time. I just

remember stocking at you and saying, "Are you T?" And you said, "Yeah. And I did not say anything else.

*78 Q. But right here on March, we go back here, go back to 2010, with the program. This is when you already never read these information. You know this information almost a month in advance. That is what you stated in your report.

A. Okay. If I am not mistaken, the allegations were Brought to my attention on 2/27, if that's what you are telling me. And your feelings you got arrested on 2/24. Well, I had not received the allegations yet or information pertaining to this offense report yet at the time, you could not question you about something that would occur in some form.

Q. Now, this was after the fact. You already never read this information on 2/26 or 2/27. We and you death hump heads until March 24th. You got this information almost a month in advance where you state. you know, my name, you know, my address. A. Okay. Well, March 24th, at the time, if I document a report and it gets referred to C. I. D. for investigation, further investigation follow up, it's out of my hands as far as this investigation. I cannot say, well, okay, I am taking you over to the side and question you about what happened. A detective is assigned to that case, and she is in charge of it. So it would have been up to the detective to question you.

*79 about what had happened. Q....So you basically stating that you was the reporting office regarding this sexual assault and you stating that you knew me, spoke me me on 2/26, 2/29, but when you see me a month later coming through the Galuestion county cart, you don't... and you say, you T24 when don't try to, you got the information you got the right to question -- MR. CAMPBELL? Objectives asked and slewed out in Honor. THE COURT. YEARS. Let's move on! Q. (By the Defendant) So that you know would have been the detective actually, since she was assigned to the case, I guess, March. She was -- first, say, I've and then Maxeh? She would have been the proper one doing the investigation you are saying? A. Yes, sir

THE DEFENDANT: Pass the witness at this time, Your Honor.

THE COURT: Okay. State? MR. CAMPBELL: Thank you, Your Honor.

CROSS-EXAMINATION BY MR. CAMPBELL: Q. Officer, just so we are clear, were you the investigator on the sexual assault?

*80

*81 THE COURT: On this document right here. THE DEFENDANT: On the original, police report signed: 13986 signed by Mr. Garcia, my incident: alleged crime occurred on 2-26 at 11:30, which is going to be impossible. This is the whole thing about the Lisa incident supposed to have occurred. WITH: her father right here at 11:00 o'clock. And Amber supposed to have been a witness, youd Honor. That's what this document say.

MR. HAIL: What he's trying to say, Judge, I s that the situation will have and comment, and I, by, true, because I am and Amber were together on the evening of 13 August. I say, he could not have actually as a subject, and I think that's what he's arguing. But the information he's trying to get in is already in evidence.

THE COURT: Okay...So, what is your request?

THE DEFENDANT: Wour Honor, that I can ...in the frame. They're saying, on or about, I can prove it to going to be impossible. They saying that -THE COURT: What is your request? THE DEFENDANT: That I can use this here, your Honor. Ain't saying nothing about the Lisa incident.

THE COURT: Okay. So, you want to

*82

Lisa's mistaken that Ms. Loyd wasn't the one picked her up? It wasn't you that actually picked her up? A. What I'm testifying to is I don't know what her state of mind was or how she testified yesterday.

But I know for a fact that when we picked her up by Taco Bell on Broadway that I was with offirem boyd in her.

Patool unit.

Growin yourepont younstated that you was ealling, calling, calling my reference, correct? WaWesysY Growin yourpolicereport younstated you know my name, name, my address, forth, my address and afterth is, is that consent. Now what I eport was yout asking about, sdr? Growin yourpolicereport A. If I can review what part you're talking about, I'll tell you.

Q. Page -- THE COURT: Why don't you come up and show it to him? THE DEFENDANT: Yes, sir. A. (CONTINUING) Yes, sir. Q. (BY THE DEFENDANT) You stated, I'mow was presented to you on a addedlyreported to you the next day, they say, they say, that I when you got the infomate on yous

*83

1

the

A

0 0 0 0 0 0 0 0 0 A. I can explain that. The information I received was -- what I did was document an incident report or a case report and referred it to CID for follow-up. The information I had on Mr. Florence was not the best information. The address I had was at 215 -- I believe it was Market. At the time I did not know he was staying on 50th or 51st Street, whatever his address is on that location. But I got all the information I needed for the report and then referred it to CID for follow-up by a detective. That investigation, the networseperandippoeauibet thaterhasto by foodowed and of couldget do that on my own ad a partrotsetert. 25

*84

Aa

*85

N

N. 5

N. 5

Q. 5 After charging me with forceable rape after you

Find your this information?

A. It had to be investigated. It's not fair to you if I just go and arrest you. We want to document and investigate everything to find facts of the case. And it takes time. There's procedures. Q. So, it take, what, two months, three months? A. I did what was necessary on patrol level and referred it to CID. CID takes up the investigation then. And then there are steps that have to be followed, statements taken, tests run, that -- steps have to be followed. There's a procedure. Q. So, Robbie Guarnelo allegedly returned back from Ben Yabb on 27. And she gave you this information at the police station? A. No, sir. Q. What date did she give you the information?

You say A. I talked to her on the phone and she told me what happened. Q. What day was this?

A. If I can review my reports? Q. Yes, wait.

NR. HALL. I'm going to object to asked

*86

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*87 MR. CAMPBELL: Your Honor, I object on his side bar.

THE COURT: Here is the deal: This is a period of time not to argue about your case. Just ask the questions. You have got a witness. Don't waste your time on me when you have got a witness sitting right here.

THE DEFENDANT: Yes, sir.

Q. Miss Johnson, did you actually -- you say you learned from reading that police report number that

Applicant did not return home from the 19th to -- what day it was, from the 19th she was supposed to run away, from February 19 to what?

A. I just have in the No. 1 paragraph that she --that a report was made on February 19th.

Q: But you said you was investigator of this case

2010-13986: and you ought to have highly highly informational regarding you know this incident. You said you was the investigator So I just want to know the police report said she ran away on February 19th to when you said to the Court to when.

A February 28th, 2010

Q: Are you sure?

A That's what I have in my affiQavit. That's when I became involved in this case, was February 27th, 2010.

*88 Q. Yes, ma'am. A. Okay. Ait know is that the police report was made February 19 th. It was assigned to sergeant. Alemendarez. I don't know regarding this police report, the runaway report, when she was recovered. do have personal knowledge that she was recovered on February 26 th, 2010. I don't know if it's regarding this report not.

THE DEFENDANT: I call Mr. Alemendarez later, Your Honor. To move on, a warrant was issued for Miss Guarnello by Kathryn Lanan from Juvenile Justice Department on orders of parole officer, probation officer, Sean Parish. That was on 2/19. And according to, like I said, police report 1213, she was arrested on this date. And this is the date, you know, to show that it was impossible for her to basically be on the run from 2/19 to 2/26/10, the date of this crime. So, you know, she was supposed to be gone on an eight-day run. So that's why it's highly relevant to show that if she was arrested on 2/22/10, it is impossible for her to be on the run from 2/19/10 to the date of this offense, this crime.

MR. CAMPBELL: Your Honor, I object to him testifying.

THE COURT: Just what's your question?

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423

themselves into the Galveston Police Department. Affiant also learned from reading the police report that Amber Guarnelo was transported to Ben Taub for psychiatric treatment and evaluation for drugs and suicidal thoughts.

You say you got this information I was reading G. P. D. case report No 43986, malam? A. Yes, sir. Q. And you said that Amber Guarnelo, after reading this police report, that Amber Guarnelo and her mother was transported to Ben Taub on February the 26 th A. Yes, sir. THE DEFENDANT: If I could get some information, Your Honor. MR. CAMPBELL: Your Honor, if the Defendant is returning to the table, we would ask he remain there during the questioning. THE COURT: Here is the deal, Mr. Florence. If you don't need to be up here to point to separate things on your exhibits, then do your questioning from the table. THE DEFENDANT: Yes, sir. THE COURT: If you need to, to point out certain things on exhibits or to present exhibits to the witness, then you can approach.

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${10}^{6}6$

them. THE DEFENDANT: I would like to submit 19986 as Exhibit 2, Your Honor.

THE COURT: Okay. Any objection? MR. CAMPBELL: No objection. THE DEFENDANT: I am ready, Your Honor. Q. Miss Johnson, we are in Paragraph No. 2 of the affidavit where you say affiant. After reading the police report, did you do your own investigation, ma'am, or basically just blindfolded what Garcia stated in his police report regarding this case? A. I did my own investigation, but I also had to refer to officers' prior reports, which I used in my investigation. Q. So basically you are saying that you basically did an investigation of this case.

A. Yes, sir. Q. So you state that Amber wents to Beh Taubion February 26 th, 2010 ? A. Yes, according to police report, 2010-19986, yes. Q. Miss Johnson, you did an investigation regarding this case? That is a "yes" or "no," ma'am.

A. Yes. Q. So when Amber went too, are you sure that Amber went to the hospital, on 2726 Ats.

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123

A

*92 going, but it's not time for argument; it's time to ask questions. Q. (By the Defendant) Miss Johnson did Amber go to Ben Taub Hospital prior to February the 14th or February the 14th or February the 22nd and prior to -let me rephrase it Are you aware that - did Miss Guarnelo ever go to Ben Taub prior to $2/26/10$ for this same treatment? A. I have no knowledge of that. Q. On $2/26/10$ could you tell, do you know what officer took her to the hospital after your investigation? MR. CAMPBELL: Your Honor, I would object.

She already said she had no relevant knowledge. THE COURT: I will let her answer the question. A. I will have to refer to this report. I don't recall which officer or who is inspired her to Ben Taub on February 26th, 2010? Q. (By the Defendant) Well, during your investigation in this police report, did you retrieve any of the documents to present to the District Attorney that Amber Guarnelo did she ever go to the hospital on this here date during your investigation? Did you uncover any documents from $2/26$ ?

*93 A. Have I ever seen the medical records from that date? Is that what the question is? Q. I am kind of rephrasing that when you did your investigation did you get any? I will be a mean taub-records? A. No. Q. So how did you know Amber, quarrels went to the hospital? on 2/26/10, for any kind of treatment at all? A. I received that information from officer Garcia's police report. Q. So you are basically going by what officer Garcia said and not do a thorough investigation as you just said you did regarding this case? A. I have no reason to believe that officer Garcia would failly a police report. Q. Affiant states in Paragraph 3, after reading police report 23986 February 26, 20109, officer Garcia received a phone call from Robbie Guarnelo stating that while at Ben Taub Hospital, a pregnancy test was administered to her daughter, Amber, quarrelod. The result was positive. My question is are you sure, then, that Amber, quarrels actually went to the hospital? 2/26/10? A. According to officer Garcia's police report, yes, she did.

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1

state that she had sex with me on 2726770, the date of this incident that you charged with me with?

A. Yes.

THE DEFENDANT: Your Honor, I would like - he didn't bring the video. I have got the video down marked as an offer of proof because nowhere in this video does it state that --

THE COURT: So you are through with this witness, right? THE DEFENDANT: No, sir, basically not yet, Your Honor. THE COURT: Okay. You want to introduce something through this witness? THE DEFENDANT: Yes, sir. I would like to introduce the video into evidence, Your Honor. THE COURT: What is the video of? THE DEFENDANT: This is the video of the Advocacy Center where the affiant stated that Amber stated that she was sexually assaulted on February 26th, the date of this charge that I am charged with; and nowhere in this video does -- this statement is made nowhere in the video. And this is the basis for the arrest warrant stating that I committed this crime on this date, Your Honor.

THE COURT: Okay. Go through the predicate

*95 and present the video to the witness. THE DEFENDANT: Your Honor, we don't have possession of Amber Gaurnelo's video.

MR. FLEMING: He wants to introduce into evidence the video of Amber Guarnelo, which the State has

MR. CAMPBEL: Just in response, mean, even from under. Franks, even you found that not to be true, that simply means that you would redact that sentence and then re-evaluate the affidavit to see if there's probable cause. Even if you found that to be not true, that Amber said she had sex on February 26, 2010, even if that were not true, there's still enough peacing from the affidavit:

THE COURT: So do you want to concede that that statement is in the affidavit is not true? What you are saying?

MR. CAMPBEL: No, Your Honor, THE COURT: Okay. Come on, then. MR. FLEMING: Here is a copy of the video, Your Honor.

THE COURT: Mark it. THE DEFENDANT: I would like it introduced. THE COURT: Show it to the witness. Q. (By the Defendant). This is the video at the United

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*98

ANs

1

*99 Amber in the video state that I sexually assaulted on $2/26/10$ when there's no statement ever made like that, ma'am? A. I observed watching this interview that Amber said that the last time that she had sex with you was after Valentine's Day, which would be February. And I also observed her say that the last time she had seen you was the day that she had turned herself in, which would be February 26 th. So I can see where I got confused with the exact day but not the month and year. Q. But this is a serious matter, ma'am. Messing up dates, getting dates confused, because you went to the Judge with this here under oath and spoke before the Judge that this is true and correct, everything this here. A. Right. And like I said, when I did this affidavit, I understood that when she said the last time that she had saw you was February 26 th, and after reviewing the video I see how where she said it was after Valentine's Day, which would have been just February, 2010. Q. You remember what you just said? You said she receives after after February 26th which you just said? A. After Valentine's Day, so I am mistaken on the 26th but not the February of 2010.

*100 Q. So, ma'am, you are saying you are just go to a judge and just give a judge an affidavit and just tell, him that this here occurred on this date when it didn't? MR. CAMPBELL: Objection, argumentative, Your Honor. THE COURT: I will allow it. A. I was mistaken on the date. And at that time I believed that after watching her interview the first time that it was on February 26th. Q. (By the Defendant) So you are saying, ma'am, that you are mistakenly got me arrested on an incident, you are saying you witnessed Amber state that I sexually assaulted her on 2/26/10? That's what you are saying, you made a mistake? MR. CAMPBELL: Objection, argumentative. THE COURT: I will allow this question, but we need to move it along. THE DEFENDANT: This does to the heart of the affidavit, Your Honor. THE COURT: I said I will allow the question. THE DEFENDANT: Yes, sir. THE COURT: So you can answer it. A. Yes. I had mistaken watching her

Interview on using February 26th. And now I see that

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A 394

what she was referring to was after Valentine's Day, which would have been February of 2010. And then I see now that she.says the last time that she had seen you was February 26th. So I was mistaken on the particular date. Q. (By the Defendant) So I am not trying to -- basically just to get it over with, you basically made a mistake?

THE COURT: She has answered that question. Let's move along. Q. (By the Defendant) In the same affidavit, ma'am, you are aware of article -- because these is facing challenge. Your Honor under Article 123, dignity of the state? Do you consider that - are you aware that this document is considered prosecution, in prosecution of a document?

MR. CAMPBELL: Objection. That question is confusing.

THE COURT: I don't even understand the question.

THE DEPENDANT: Basically, Your Honor, I am asking to this document used in prosecutions. This affidavit of arrest warrant, is it used in prosecution because, I guess, they present it to the Grand Jury as present it to the judge to get you arrested? So it's a

*102 IN THE GIMENTOUGHNTY SOM EXISTRECT COURT LOCALS 17 - 83-4 DONNT MOLON SKEWARTE, THOMAS GUAYUE FLOKONOONS

MOTION TO SDEENE COUNTE COX FROWTY SDEENE OVER OR PACKING DOWOLUED IN WAPLICHANTS PARTILIOLOGUEL-83-4 COMES NOUS FROSE, WAPLICHENT THOMAS FLORENCE TO CERTIFY SAID MOTION UNEER THE PEN- MUTY OF PENJURY, HNO STME THAT THOSE CUMMS YYKE SUP POKTED, YAY THE RECOKES IN THIS PARTICULAR CLASE. SEE, ER.C. 8.18 (an, PARKRONH, SE, OF TEX, HIIY, GEN, LOS SUGSAL, 319, 382-83 CITUEE YEY. CILAOOO 5 N O P E L, THE PROCEDURAL REC- LLSSTES FOR RECUSAL, IN IS a (a) PREE HUAN: DATOXY HNO A PARKAY WHO FARAS TO CONFORM CUMMES HIS RECOT TO COMPUTON OF JURIE'S FATUAX TO RECUSE HUMSEYE. LIEK WISK A PARKAY'S FUTUAX TO DISKY THE US PAY RULE NOTICE PROVISION MAKES HNY COMPUTON YEYEAL OF THE EENBAL OF THE MOTION TO RECUSE. THUS, THE PROVISIONS OF RULE IS a OCCUPATION, A TREAM, JURIE TO ETH- ER RECUSE HUMSEUf OR REFER THE MOTION TO THE PRESIDENTI JURIE OF THE MECHANISMATY THE JURIECEAL DISTRECT NEYEK COME INTO PAY UNLESS HNO UNITL A FORMAL TIMELY Z

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defect is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate. If the federal court determines, considering only the evidence before the state court, that the adjudication of a claim on the merits resulted in a decision contrary to or involving an unreasonable application of clearly established federal law, or that the state court's decision was based on an unreasonable determination of the facts, the federal court evaluates the claim de novo and may consider evidence properly presented for the first time in federal court.

Criminal Law &; Procedure > Counsel >

Effective Assistance > Tests Criminal Law &; Procedure > Habeas Corpus

Review > Specific Claims > Ineffective Assistance To bring a successful ineffective assistance of counsel claim, a petitioner must show counsel's deficient performance and prejudice. Deficient performance requires a showing that trial counsel's representation fell below an objective standard of reasonableness as measured by prevailing professional norms. A court considering a claim of ineffective assistance must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance. The petitioner bears the burden of showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sloth Amendment. To establish prejudice, the petitioner must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Counsel's errors must be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Criminal Law &; Procedure > Counsel >

Effective Assistance > Tests Criminal Law &; Procedure > Habeas Corpus

AIRCASES

Criminal Law &; Procedure > Habeas Corpus

> Review > Antiterrorism &; Effective Death

Penalty Act Criminal Law &; Procedure > Habeas Corpus

Review > Specific Claims > Ineffective Assistance Criminal Law &; Procedure > Habeas Corpus Review > Standards of Review > Deference The standards created by Strickland and the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) are both highly defensifial, and when the two apply in tandem, review is doubly so. In considering the state court's denial of a petitioner's ineffective assistance of counsel claims, the pivotal question is whether the state court's application of the Strickland-standard was unreasonable. A federal court does not ask, in the first instance, whether counsel's performance fell below Strickland's standard because an unreasonable application of federal law is different from an incorrect application of federal law. The federal court must guard against the danger of equaling unreasonableness under Strickland with unreasonableness under AEDPA. The question is whether there is any reasonable argument that counsel satisfied Strickland's defensifial standard. Federal courts are mindful that a state court's determination that a claim lacks merit pressures for the state court's decision.

Criminal Law &; Procedure > Habeas Corpus

Exhaustion of Remedies > Satisfaction of Exhaustion Criminal Law &; Procedure > Habeas Corpus Procedureal Default > General Overview Criminal Law &; Procedure > Habeas Corpus Review > Antiterrorism &; Effective Death Penalty Act A habeas petitioner must present his claims to the highest state court in order to satisfy the exhaustion requirement of the Anti-Terrorism and Effective Death Penalty Act of 1996. The procedural default rule barring consideration of a federal claim applies if it is clear that the state court would hold the claim procedurally barred.

Criminal Law &; Procedure > Habeas Corpus

Procedureal Default > General Overview Criminal Law &; Procedure > Habeas Corpus State Grounds > Independent &; Adequate Principle

For the procedural default rule to apply, the application of the state procedural rule must provide an adequate and independent state law basis on which the state court can deny relief.

Criminal Law &; Procedure > Sentencing > Capital Punishment > Mitigating Circumstances A difficult family background is a relevant mitigating circumstance if a defendant can show that something in that background had an effect or impact on his behavior that was beyond the defendant's control.

Criminal Law &; Procedure > Sentencing > Capital Punishment > Mitigating Circumstances A sentence in capital cases must be permitted to consider any relevant mitigating facts:

Criminal Law &; Procedure > Counsel > Effective Assistance > Appeals Criminal Law &; Procedure > Counsel > Effective Assistance > Tests Criminal Law &; Procedure > Habeas Corpus

Review > Specific Claims > Ineffective Assistance A criminal defendant enjoys the right to the effective assistance of counsel on appeal. A federal halves court considers claims of ineffective assistance of appellate counsel according to the standard set forth in Strickland. A petitioner must show that appellate counsel's representation fell below an objective standard of reasonableness, and that, but for counsel's errors, a reasonable probability exists that he would have prevailed on appeal.

Criminal Law &; Procedure > Habeas Corpus

Review > Burdens of Proof In order for a federal habeas court to grant the petition, a petitioner must show that the state court's denial of a claim was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Criminal Law &; Procedure > Sentencing > Capital Punishment > Mitigating Circumstances The U.S. Constitution requires a sentence to consider any and all mitigation evidence offered by a defendant at trial. This mandate requires the consideration of nonstatutory mitigating evidence in order to safeguard individualized decisions that are essential in capital cases and that give due respect to the uniqueness of the individual defendant. Moreover, just as the State may not preclude the sentence from considering any mitigating factor, neither may the sentence refuse to consider, as a matter of law, any relevant mitigating evidence. In considering mitigating evidence, however, the sentence may determine the weight to be given relevant mitigating evidence.

Criminal Law &; Procedure > Sentencing > Capital Punishment > Aggravating Circumstances Criminal Law &; Procedure > Sentencing > Capital Punishment > Mitigating Circumstances Arizona law required sentencing courts to consider all mitigating evidence, even if it did not establish a statutory mitigating factor. In addition, the Arizona Supreme Court specifically directed sentencing courts to consider each mitigating circumstance, whether or not enumerated by statute, both individually and cumulatively. Also, the Arizona Supreme Court would conduct a de novo review of the trial court's rulings concerning aggravation and mitigation to decide, independently, whether the death sentence should stand.

Criminal Law &; Procedure > Habeas Corpus

Review > Antiterrorism &; Effective Death Penalty Act AIRCASES 2011 Matthew Bender &; Company, Inc., a member of the LcratHeric Group. All rights reserved. Use of this product is subject to the restrictions and terms and conditions of the Matthew Bender Master Agreement.

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RICHARD D. HURLES, Pettitioner-Appellent, $\times$ CHARLES L. RYAN, ^[1] Respondent-Appellent, UNITED STATES COUNT OF APPEALS FOR THE NINTH CIRCUIT 708 F.3d 1021; 2013 U.S. App. LEXIS 1308 No. 08-89032 October 7, 2010, Argued and Submitted, Pasadena, California January 18, 2013, Filed

Editorial Information: Subsequent History Later proceeding at Huches v. Ryon, 2013 U.S. App. LEXIS 5404 (9th Cir. Ariz., May 18, 2013);Opinion withdrawn by Huches v. Ryan, 2014 U.S. App. LEXIS 9254 (9th Cir. Ariz., May 18, 2014);Submitted opinion at Huches v. Ryan, 2014 U.S. App. LEXIS 9255 (9th Cir. Ariz., May 18, 2014);US Supreme Court (arbitrary dismay by Ryan v. Huches, 2014 U.S. LEXIS 3989 (U.S. June 3, 2014)

Editorial Information: Prior History Appeal from the United States District Court for the District of Arizona, D.C. No. CNI-00-0119-PHX-FCB. Robert C. Broomfield, Senior District Judge, Presiding Huches v. Ryan, 690 F.3d 1301, 2011 U.S. App. LEXIS 13819 (9th Cir. Ariz., 2011)

Disposition: AFFIRMED in part: REMANDED. Counsel Denise I. Young and Michael Aaron Harvett, Turoon, Arizona, for Pettitioner-Appellent. Terry Goddard, Attorney General of Arizona, Phoenix, Arizona, for Respondent-Appellent

Kent E. Catlant and J.D. Nielsen, Arizona Attorney General, Capital Litigation Section, Phoenix, Arizona, for

Respondent-Appellent. Judge: Before; Harry Progression, Dorothy W. Nelson, and Sandra S. Ikula, Circuit Judges. Order, Opinion by Judge D.W. Nelson; Dissent by Judge Ikula.

CASE SUMMARY

PROCEDURAL POSTURE: Pettitioner inmate appealed the United States District Court for the District of Arizona's denial of his federal habeas petition challenging his conviction for capital murder and the imposition of his death sentence. The inmate argued that the district court erred in denying his claims of judicial bias and ineffective assistance of sentencing and appellate counsel, and in finding serious claims procedurally defaulters by obligation of judicial bias would have resulted in case of a federal RJB of the United States District to defend the claim of a federal RJB of the United States District to defend the claim of a federal RJB of the United States District to defend the claim of the state of the states's judicial bias claim rested on an unreasonable responsibition of the facts. The could preseribet an unassically troubling example of defective

CONFIDER: The inmate procedurally defaulted five of his ineffective assistance claims. Further, counsel did not perform below the objective standard of care when she did not establish a causal nexus between the inmate's mental conditions and the crime and counsel conducted a thorough penalty phase investigation and associated educational probability evidence. The trial court did consider the indicating evidence offered as the U.S. Constitution required. The state supreme court's independent review of the death sentence imposed also demonstrated that the inmate did not suffer an error requiring federal habeas intervention. However, heronite thee allegation of judicial bias would have a croud, and that the inmate to federal habeas called the district court allowed its discretion in derance the claim offered an underlying hearing The state court's denial of the minister's judicial bias claim rested on an unreasonable responsibition of the facts. The could preseribet an unassically troubling example of defective

51 PM Friday, March 13, 2015

Jack Bednar because the facts the state trial judge found involved her own conduct, and she based those findings on her untested memory and understanding of the events.

OUTCOME: The case was remanded for an Antietary head of the Primary District Sufted bias. Just was otherwise affirmed.

Leashesis Headnotes

Criminal Law &; Procedure $\>$ Habeas Corpus $\>$ Appeals $\>$ Standards of Review $\>$ Clear Error Review Criminal Law &; Procedure $\>$ Habeas Corpus $\>$ Appeals $\>$ Standards of Review $\>$ De Novo Review Criminal Law &; Procedure $\>$ Habeas Corpus $\>$ Evidentiary Hearings $\>$ Review of Denials An appellate court reviews de novo a district court's denial of a petitioner's habeas petition and reviews the district court's findings of fact for clear error. The appellate court reviews for abuse of discretion the determination that a petitioner is not entitled to an evidenitary hearing.

Criminal Law &; Procedure $\>$ Habeas Corpus $\>$ Review $\>$ Antiterrorism &; Effective Death Penalty Act Criminal Law &; Procedure $\>$ Habeas Corpus $\>$ Review $\>$ Scope of Review Criminal Law &; Procedure $\>$ Habeas Corpus $\>$ Review $\>$ Standards of Review > Contrary &; Unreasonable Standard > General Overview The Anti-Terrorism and Effective Death Penalty Act of 1996 (ACDPA) places limitations on a federal court's power to grant a state prisoner's federal habeas petition. When a state court has adjudicated a claim on the merits, a federal court may grant relief only if the adjudication of that claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court

AINCASES

(c) 2011 Matthew Reader &; Company, Inc. a member of the Leashess Group. All rights reserved. Use of this product is subject to the estitutions and terms and conditions of the Matthew Reader Master Agreement. proceeding. 28 U.S.C.S. §.2254(d). To determine the relevant clearly established federal law, the federal court looks to the holdings, but not the dicta, of the Supreme Court at the time the state court adjudicated the claim on the merits. In considering whether the state court unreasonably applied clearly established federal law, the federal court is limited to the record before the state court that adjudicated the claim on the merits.

Criminal Law &; Procedure $\>$ Habeas Corpus $\>$ Review $\>$ Standards of Review $\>$ Contrary &; Unreasonable Standard > Unreasonable Application

An unreasonable application of federal law results where the state court identifies the correct governing legal rule from U.S. Supreme Court cases but unreasonably applies it to the facts of the particular state prisoner's case, or if it either unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. A federal court cannot grrot relief unless the state court came to a decision that was objectively unreasonable.

Criminal Law &; Procedure $\>$ Habeas Corpus $\>$ Review $\>$ Scope of Review Criminal Law &; Procedure $\>$ Habeas Corpus $\>$ Review $\>$ Standards of Review $\>$ Contrary &; Unreasonable Standard > General Overview

A federal court cannot find that the state court made an unreasonable determination of the facts in a case simply because it would reverse in similar circumstances if the case came before the federal court on direct appeal. Instead, the federal must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record before the state court. To find the state court's fact finding process defective in a material way, or, perhaps, completely lacking, the federal court must more than merely doubt whether the process operated properly. Rather, it must be satisfied that any appellate court to whom the

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years for prior crimes, went to the library in Buckeye, Arizona on a November afternoon in 1992. State v. Hurles, 165 Airz. 199, 914 P. 2d 1291, 1293 (1996) (en banc). He attacked librarian Kay Blanton by attempting to rape her and then stabbing her thirty-seven times. Id. Hurles left the library, cleaned himself up, discarded his bloody clothes and fled on a bus to Las Vegas, Nevada. Id. at 1294. The state charged Hurles with burglary, first-degree murder, first-degree felony murder and attempted sexual assault. Id. at 1293. The court appointed an attorney to represent Hurles, an indigent. That attorney moved to the appointment of co-counsel when the State decided to seek the death penalty. Defense counsel cited numerous reasons necessitating co-counsel, among them, the many witnesses, the State's intention to utilize forensic experts, the need to maintain a productive client relationship and the dense and detailed preparation necessary for both phases of trial. The trial court summarily denied the motion. Defense counsel brought a petition for special action in the Arizona Court of Appeals. The petition challenged the denial of the motion to appoint co-counsel as violating Hurles's rights to due process equal protection and the adequate assistance of counsel. The real party in interest, the State of Arizona, declined to respond to the petition because it lacked standing to do so. Hurles v. Superior Court, 174 Airz. 331, 849 P. 2d 1, 2 (Ariz. Ct. App. 1983). However, the petition named the trial judge, Ruth Hilliard, as the respondent, as required by Arizona law. Ariz. R. P. Special Actions 2(e). This nominal designation "is a mere formality," and the trial judge "has no interest in the litigation and should have no interest in the way the caso is decided." State as rel. Dean v. City Court, 123 Airz. 189, 598 P. 2 d 1008, 1010-11 (Ariz. Ct. App. 1979). Nonetheless, Judge Hilliard filed a responsive pleading, months before the presentation of any evidence in the case against Hurles, that defended her ruling below.

In her response, Judge Hilliard described the murder as "trutal." She noted that defense counsel had not noticed any (704 F. 2 d 1928) defenses, had not disclosed the names of trial witnesses, had not requested an examination of Hurles and that it was not known whether Hurles would present a mental health expert at trial. Judge Hilliard nevertheless described the state's case against Hurles as "very simple and straightforward, compared to other capital cases" and predicted that it would not involve an inordinate amount of witness testimony. She argued that the denial of second counsel was rationally related to the state's duty to preserve its resources, noting that Hurles had failed to show that his case was "any more complex or difficult to prepare than almost any other criminal case." Judge Hilliard referenced the rules of professional conduct and stated that if defense counsel believed that she could not render competent representation, she was bound to withdraw and, quite possibly, to withdraw her name from the list of attorneys who contracted with the county to serve as appointed counsel. Judge Hilliard concluded: "Clearly there are other attorneys who provide contract services for Manicaps County who would be able to provide competent representation in a case as simple as this."

The Arizona Court of Appeals published a decision denying Judge Hilliard standing to appear in the special action and ruling it improper for judges to file pleadings in special actions solely to advocate the correctness of an individual ruling in a single case. Hurles, 849 P. 2 d at 3-5. The court noted that the presiding criminal judge, not Judge Hilliard, requested the filing of a response pleading and that there was no contact between Judge Hilliard and the Arizona Attorney General's office as the pleading was prepared. Id. at 2, n. 2. However, Colleen French, of the Arizona

51 PM Friday, March 13, 2015

Attorney General's Office, represented Judge Hilliard in the special action proceeding and later admitted to having had some communication with Judge Hilliard about this matter. In opposing a motion to disqualify the Arizona Attorney General's Office from representing the state, French referenced her "communications with [Judge Hilliard] during the special action proceedings" but did not describe their nature of content. The record is ambiguous as to the nature and extent of those communications.

Addressing Judge Hilliard's participation in the special action proceeding, the court of appeals held that it was "of the inappropriate "ruled-correctly' sort" Hurles, 849 P. 2 d at 4. The court explained that "at every level of the judiciary, judges are presumed to recognize that they must do the best they can, ruling by ruling, with no personal state-and surely no justiciable state-in whether they are ultimately affirmed or reversed." Id. The court stated that "fifths principle, which is essential to importal adjudication, does not change from direct appeal to special action, merely because the judge is a nominal respondent in the latter." Id. The court then held that Judge Hilliard lacked standing to file a responsive pleading and declined to consider the pleading filed in her name. Id. Judge Hilliard continued to preside over Hurles's trial. A jury found Hurles guilty of all charges. Judge Hilliard then conducted an aggravation and mitigation hearing to determine the appropriate sentence for Hurles. Arizona's capital sentencing scheme provided at the time of trial that Judge Hilliard, sitting alone, would determine the presence or absence of the aggravating factors required by state law for the imposition of the death penalty. Wing v. Arizona, 536 U.S. 584, 566, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). The Supreme Court has since held that capital defendants are entitled to a jury determination of any fact that would support the imposition of a death sentence. Id. at 589. At the aggravation and mitigation hearing, Hurles offered substantial mitigating (706 F. 3 d 1025) evidence, including his markedly dysfunctional family background, cognitive deficiencies, long-term substance abuse, mental illness, good behavior while incarcerated and an expert opinion that Hurles suffered diminished capacity at the time of the crime. Following the presentation of penalty phase evidence, Judge Hilliard found one statutory aggravating factor: that Hurles committed the crime in an especially cruel, heinous and depressed manner. She found two nonstatutory mitigating circumstances: that Hurles suffered a deprived childhood in a clearly dysfunctional home and that he betweened well in prison prior to the underlying crime. She concluded that these circumstances did not warrant tendency and condemned Hurles to die. The Arizona Supreme Court affirmed Hurles's conviction and sentence on appeal. Hurles, 914 P. 2 d at 1500.

Hurles filed his first petition for post-conviction review ("PCR") in 1989. Judge Hilliard presided over this PCR French, the same attorney who represented Judge Hilliard in the prior special action proceeding, represented the state. Judge Hilliard denied the PCR, and the Arizona Supreme Court summarily affirmed.

Hurles commenced federal habeas proceedings in 2000. He then returned to state court to file a second PCR raising additional claims, including one of judicial bias. Hurles moved to recover Judge Hilliard from presiding over his second PCR. The motion was referred to another judge and denied. Judge Hilliard then denied Hurles's second PCR, and the Arizona Supreme Court summarily affirmed. Hurles returned to federal court and filed an amended habeas petition, raising ten claims. The district court denied most of them as procedurally barred. After additional briefing,

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the district court denied the remainder of Hurles's claims on the merits and certified four issues for appeal to this Court. II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 26 U.S.C. § 2253. We review de novo the district court's denial of Hurles's habeas petition, and we review the district court's findings of fact for clear error. Brown v. Omuski, 603 F.3d 1006, 1010 (8th Cir. 2007). We review for abuse of discretion the determination that a petitioner is not entitled to an evidentiary hearing. Stanley v. Schens, 586 F.3d 812, 817 (8th Cir. 2010). Because Hurles filed his federal habeas petition after 1998, the Anti-Terrorism and Effective Death Penalty Act of 1998 (AEDPA) governs this case. Lindh v. Murshy, 521 U.S. 320, 336, 117 S. Ct. 2059,138 L. Ed. 26491 (1997). AEDPA places limitations on a federal court's power to grant a state prisoner's federal habeas petition. Cullen v. Pinhalder, 131 S. Ct. 1366, 1386, 179 L. Ed. 2d 557 (2011). When a state court has adjudicated a claim on the merits, we may grant relief only if the adjudication of that claim "(1) resulted in a decision that was contrary to, involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 26 U.S.C. § (2254)9. To determine the relevant clearly established federal law, we look to the holdings, but not the dicta, of the Supreme Court at the time the state court adjudicated the claim on the merits. Terry Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). In considering whether the state court unreasonably applied clearly established federal law, we (704 F.3d 1038) are limited to the record before the state court that adjudicated the claim on the merits. Pinhalder, 131 S. Ct. at 1366.

An unreasonable application of federal law results where the "the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case," or if it "either unreasonably extends a legal principe from [Supreme Court] preceded to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407, see also Pareett v. Quarterman, 551 U.S. 930, 903, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (holding that AEDPA does not require habeas courts to await "some nearly identical factual pattern" before applying a clearly established rule, nor does it prohibit "finding an application of a principle unreasonable when it involves a set of facts different from those of the case in which the principle was announced") (internal quotation marks and citations omitted). We cannot grant relief unless the state court came to a decision that was objectively unreasonable. Williams, 529 U.S. at 410. We cannot find that the state court made an unreasonable determination of the facts in this case simply because we would reverse in similar circumstances if this case came before us on direct appeal. Taylor v. Maddox, 366 F.3d 982, 1000 (8th Cir. 2004). Instead, we must be "convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record" before the state court. In Ta find the state court's fact finding process defective in a material way, or, perhaps, completely lacking, "we must more than merely doubt whether the process operated properly. Rather, we must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's fact-finding process was adequate." In If we determine, considering only the evidence before the state court, that the adjudication of a claim on the merits resulted in a decision contrary to or involving an unreasonable application of clearly established federal law, or that the state court's decision was based on an unreasonable determination of the facts, we evaluate the claim de novo, and we may consider evidence properly presented for the first time in federal court. Pinhalder, 131 S. Ct. at 1401.

III. Discussion

A. Ineffective Assistance of Counsel

Hurles brought various claims of ineffective assistance of counsel ("IAC") in his federal habeas petition, all of which the district court either dismissed as procedurally defaulted or denied on the merits.

To bring a successful IAC claim, Hurles must show counsel's deficient performance and prejudice. Strickland v. Washington, 466 U.S. 666, 667, 104 S. Ct. 2052, 60 L. Ed. 28 674 (1984). Deficient performance requires a showing that trial counsel's representation fell below an objective standard of nonunableness as measured by providing professional norms. Wiggins v. Smith, 530 U.S. 510, 521, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003). "A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Harrington v. Richter, 131 S. Ct. 770, 787, 178 L. Ed. 2d 624 (2011) (quoting Strickland, 466 U.S. at 689). Hurles bears the burden of showing "that counsel made errors so serious that counsel was not functioning as the (704 F.3d 1031) 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. To establish prejudice, Hurles must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." In at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." In "It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding." Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Richter, 131 S. Ct. at 787-88 (quoting Strickland, 466 U.S. at 693, 687). "The standards created by Strickland and [AEDPA] are both highly deferential, and when the two apply in tandem, review is doubly so." Richter, 131 S. Ct. at 788 (internal quotation marks and citations omitted). In considering the state court's denial of Hurles's IAC claims, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable." In at 785. We do not ask, in the first instance, whether counsel's performance had below Strickland's standard because "an unreasonable application of federal law is different from an incorrect application of federal law." In (quoting Williams, 529 U.S. at 410), We must "guard against the danger of equating unreasonableness under Strickland with unreasonableness under [AEDPA] . . . The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." In at 788. We are mindful that a "state court's determination that a claim lacks merit precludes federal habeas relief so long as 'feminided jurists could disagree' on the correctness of the state court's decision." In at 786 (quoting Yarkamugh v. Aherwah, 541 U.S. 852, 884, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004)). 1. Procedurally Defaulted IAC Claims

The wastlen contends that Hurles procedurally defaulted five of the IAC claims. We agree and find federal review of these claims barred.

The relevant claims include trial counsel's failure to locate a key guilt phase witness and appellate counsel's failure to raise (1) the denial of a request for neurological testing, (2) the consideration of improper victim statements, (3) that, generally, "Astrand' death penalty statute fails to narrow

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the class of death-eligible defendants and (A) that, specifically, Arizona's F (9) statutory aggravating factor fails to narrow the class of death-eligible defendants.

Hurles procedurably defaulted these claims when he failed to raise them before the Arizona Supreme Court. See Zotkis v. (date, 247 F.3d 1015, 1021-22 (9th Cir. 2001) (amended) ("A habeas petitioner must pressed his claims to the highest state court in order to satisfy the evisuaion requirement of [ACDFA].") "[T]he procedural default rule barring consideration of a federal claim 'applies...if it is clear that the state court would hold the claim procedurably bamed." Franklin v. Johnson, 260 F. 3 d 1225, 1230-31 (9th Cir. 2002) (quoting Harris v. Reed, 489 U.S. 255, 263 v.9. 109 S. CI. 1038, 103 L. Ed. 2d 308 (1986)). If Hurles presented these IAC claims to the Arizona Supreme Court now, the court would dismiss them as waived. Aliz. R. Crim. P. 32.2 (waiver with narrow exceptions not applicable here). Thus, Hurles's failure to present these claims to the state supreme court "in a timely fashion has resulted in a procedural default of those claims." Zotkis, 247 F.3d at 1022 (quoting O'Sullivan v. Bnercke), 526 U.S. 838, 848, 119 (756 F. 3 d 1032) S. CI. 1726, 144 L. Ed. 2d 1 (1996)); see also Coleman v. Thompson, 551 U.S. 722, 732, 111 S. CI. 2546, 115 L. Ed. 2d 640 (1991), (wimded on other grounds by Arizona Supreme Court now, the court would dismiss them as waived. Aliz. R. Crim. P. 32.2 (waiver with narrow exceptions not applicable here). Thus, Hurles's failure to present these claims to the state supreme court "in a timely fashion has resulted in a procedural default of those claims." Zotkis, 247 F.3d at 1022 (quoting O'Sullivan v. Bnercke), 526 U.S. 838, 848, 119 (756 F. 3 d 1032) S. CI. 1726, 144 L. Ed. 2d 1 (1996)); see also Coleman v. Thompson, 551 U.S. 722, 732, 111 S. CI. 2546, 115 L. Ed. 2d 640 (1991), (wimded on other grounds by Arizona Supreme Court now, the court would dismiss them as waived. Aliz. R. Crim. P. 32.2 (waiver with narrow exceptions not applicable here). Thus, Hurles's failure to present these claims to the state supreme court "in a timely fashion has resulted in a procedural default of those claims." Zotkis, 247 F.3d at 1022 (quoting O'Sullivan v. Bnercke), 526 U.S. 838, 848, 119 (756 F. 3 d 1032) S. CI. 1726, 144 L. Ed. 2d 1 (1996)); see also Coleman v. Thompson, 551 U.S. 722, 732, 111 S. CI. 2546, 115 L. Ed. 2d 640 (1991), (wimded on other grounds by Arizona Supreme Court now, the court would dismiss them as waived. Aliz. R. Crim. P. 32.2 (waiver with narrow exceptions not applicable here). Thus, Hurles's failure to present these claims to the state supreme court "in a timely fashion has resulted in a procedural default of those claims." Zotkis, 247 F.3d at 1022 (quoting O'Sullivan v. Bnercke), 526 U.S. 838, 848, 119 (756 F. 3 d 1032) S. CI. 1726, 144 L. Ed. 2d 1 (1996)); see also Coleman v. Thompson, 551 U.S. 722, 732, 111 S. CI. 2546, 115 L. Ed. 2d 640 (1991), (wimded on other grounds by Arizona Supreme Court now, the court would dismiss them as waived. Aliz. R. Crim. P. 32.2 (waiver with narrow exceptions not applicable here). Thus, Hurles's failure to present these claims to the state supreme court "in a timely fashion has resulted in a procedural default of those claims." Zotkis, 247 F.3d at 1022 (quoting Nettie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1983)). Hurles has made neither showing. The district court properly dismissed these claims.

2. Sentencing Counsel

Hurles claims that sentencing counsel failed to explain how Hurles's mental illness and deficiencies affected his conduct at the time of the crime, dephasing him of the effective assistance of counsel. The state court reasonably denied this claim. As discussed, to bring a successful IAC claim, Hurles must show deficiency and prejudice. Zhtickland, 466 U.S. at 687. Hurles contends that trial counsel failed to draw a causal nexus between his mental health problems and his conduct at the time of the crime, thus, the mental health evidence presented at sentencing proved worthless. State v. Wallace, 180 Aliz. 424, 773 F. 2 d 983 (Aliz. 1989) (en banc) ("A difficult being background is a relevant mitigating circumstance if a defendant can show that something in that background had an effect or impact on his behavior that was beyond the defendant's control."), see also State v. Greene, 192 Aliz. 431, 967 F. 2 d 108, 117 (Aliz. 1989) (en banc) ("This court has held that family background may be a substantial mitigating circumstance when it is shown to have some connection with the defendant's offense-related conduct.") (internal/quotation marks and citations omitted).

Counsel did not perform deficiently. First, Supreme Court precedent existing at the time of trial did not require showing a causal nexus between mitigating evidence and the crime. In fact, the Supreme Court had held that "the sentencer in capital cases must be permitted to consider any relevant mitigating factor." Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S. CI. 869, 71 L. Ed. 2d 1 (1982) (emphasis added) (explaining Laurell v. Ohio, 438 U.S. 586, 98 S. CI. 2854, 57 L. Ed. 2d 973 (1976) (plurality)), see also Laokett, 436 U.S. at 604 ("[T]he Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis ([Tth F. 2d 1032] for a sentence less than death.") Therefore, counsel did not perform below the objective standard of care when she did not establish a causal nexus between Hurles's mental conditions and the crime.

Moreover, counsel conducted a rather thorough penalty phase investigation and presented volunioous mitigating evidence. She called four witnesses to testify to Hurles's dysfunctional family background, mental and psychological disabilities and good behavior while incarcerated before the underlying crime. She commissioned a detailed social history that catalogued Hurles's maladjusted family circumstances and deprived life, and that contained affidends from family members and others who knew Hurles. In her briefing before the trial court, defense counsel highlighted Hurles's intoxication at the time of the crime. Trial counsel also adoptly cross-examined the state's psychiatrist. On this record, we cannot say that counsel's efforts fell short of what the Constitution requires. Porter v. McCollum, 558 U.S. 30,

130 S. CI. 447, 453, 175 L. Ed. 2d 366 (2009) (finding counsel's failure to investigate and present mitigating evidence, which did not reflect reasonable professional judgment, deficient and prejudiced). Rompilla v. Beant, 545 U.S. 374, 390, 125 S. CI. 2468, 162 L. Ed. 2d 360 (2005) (finding deficient and prejudicial counsels' failure to examine court life relating to petitioner's prior conviction). Wiggins, 539 U.S. at 532, 538 (granting petition where counsel conducted unmeasurable insufficient mitigation investigation that fell short of prevailing professional standards), see also Wong v. Belmonte, 336 U.S. 15, 130 S. CI. 383, 385, 175 L. Ed. 2d 328 (2006) (per curiam) (denying IAC claim where counsel "understood the gravity of this) aggravating evidence" and "built his mitigation strategy around the overriding need to exclude it). The state court reasonably denied this claim.

3. Appellate Counsel

Hurles alleges that appellate counsel denied him the effective assistance of counsel by not challenging the trial court's failure to weigh the mitigating evidence cumulatively. The state court reasonably denied this claim.

A criminal defendant enjoys the right to the effective assistance of counsel on appeal. Zotts v. Lacey, 469 U.S. 387, 391-97, 105 S. CI. 930, 83 L. Ed. 2d 821 (1985). We consider claims of ineffective assistance of appellate counsel according to the standard set forth in Zhtickland, 466 U.S. 668, 104 S. CI. 2052, 30 L. Ed. 2d 974. Miller v. Keeney, 662 F. 2 d 1428, 1433-34 (9th Cir. 1969). Hurles must show that appellate counsel's representation fell below an objective standard of reasonableness, and that, but for counsel's errors, a reasonable probability exists that he would have prevailed on appeal. Iz. at 1434. The trial judge found beyond a reasonable doubt that Hurles committed the crime in an especially heinous, cruel and depraved manner, a statutory aggravating factor. As to crucify, the court found that the victim

*109 remained conscious while being stabiled thirty-seven times: she attempted to reach a phone to call for help and responded to paramedics who treated her at the scene. She also suffered fifteen defensive stab wounds struggling to protect herself. The court also found that Hurles inflicted gratuitous violence on the victim, establishing that he committed the murder in a heinous or depraved manner. In addition to the fifteen defensive wounds, the victim suffered eight stab wounds to her head and neck, twelve to her torso and two to her legs. Of the thirty-seven wounds, three could have been fatal; the victim bled to death. The court concluded that the attack "had to have been mind-running and terrifying and excruciatingly painful" for the victim (TW F. 3d 1634) and that Hurles committed the murder in an especially heinous, cruel and depraved manner. The trial court also considered the evidence in mitigation. The court found that Hurles did not establish statutory factor (O)(1), A.R.S. 1 13-703(O)(1), which concerns diminished capacity, or the ability to appreciate the wrongfulness of one's conduct or to confirm one's conduct to the requirements of law. While the court found that Hurles is "borderline mentally retarded" and has a learning disorder, he still understood the consequences of his actions and attempted to cover his tracks to evade detection. The trial court accepted evidence that Hurles had been drinking before the crime but found it insufficient to establish incapacity due to intoxication. The court found that Hurles had proved, by a preponderance of the evidence, two nonstatutory mitigating circumstances:

Number one, the defendant had a deprived childhood and was raised in a clearly dysfunctional home environment. Defendant's father was abusive to defendant and to his siblings, molested his daughter, had sex with his son's girlfriend. Defendant's brothers were in trouble with the law frequently throughout defendant's life and may have abused alcohol throughout their lives.Number two, the defendant had good behavior while incarcerated prior to the commission of this crime. While incarcerated, I defendant attended available counseling sessions and performed well in his work as a cook in the prison kitchen. The court then noted that it had considered other factors. Hurles had raised in his briefing, including his low intelligence and lack of education, as well as his inadequate mental health treatment while incarcerated. The court did not find those factors mitigating. The trial court concluded that Hurles had not shown that any of the proven mitigating circumstances were sufficiently substantial to warrant leniency and impaved a sentence of death. Hurles contends that the trial court considered evidence of his mental deficiencies and intoxication for the limited purpose of dirrimming whether he suffered from diminished capacity at the time of the crime. He argues that the trial court failed, in the final analysis, to consider evidence of his mental deficiencies and intoxication cumulatively with the other mitigating evidence. Hurles claims that counsel erred in failing to raise this issue on appeal.

Counsel did not raise any sentencing issues on appeal, which the Arizona Supreme Court noted. Hurles, 314 P. 2d at 1299. Even so, the state supreme court conducted "a thorough and independent review of the record and of the aggravating and mitigating evidence to determine whether the sentence (only justified," in (quoting State v. Brewer, 170 Ariz. 486, 626 P. 2d 783,797 (Ariz. 1862)). The court summarized the trial court's findings regarding the mitigating evidence and stated: A difficult family background, including childhood abuse, does not necessarily have substantial mitigating weight absent a showing that it significantly affected or impacted a defendant's ability to perceive, to comprehend, or to control his actions. No such evidence was offered, and the trial judge did not err in concluding that Hurles's family background was not sufficiently mitigating to require a life sentence. The judge also found that Hurles had good behavior while incarcerated prior to committing the murder. Taken either by itself or in combination with Hurles's family background, we do not believe this sufficiently mitigates the quality of the aggravating circumstance. (TW F. 3d 1635). A life sentence would not be more appropriate. In at 1299-1300 (citation omitted). The state court denied Hurles's claim of ineffective assistance of appellate counsel, which he raised in his first PCR. The court reasoned that Hurles had not met the Strickland standard, that the state supreme court independently reviewed the sentence and that the outcome on appeal would not have been different if Hurles had presumed this claim explicitly. First PCR at 3. We must consider whether this denial of Hurles's claim of ineffective assistance of appellate counsel quatifies as objectively unreasonable. In order for us to grant the petition, Hurles must show that the state court's denial of this claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87. Hurles has not made such a showing. Even if we presume deficiency, we find prejudice warning. Strickland, 466 U.S. at 697 (holding a court deciding an IAC claim need not address both components of the inquiry if the defendant makes an insufficient showing on one). Hurles has not shown that, but for appellate counsel's failure to raise this claim, the state court would have invalidated his death sentence. Miller, 882 F. 2 d at 1434 .

The Constitution requires a sentencer to consider any and all mitigation evidence offered by a defendant at trial. Lockell, 436 U.S. at 604. This mandate requires the consideration of nonstatutory mitigating evidence in order to safeguard individualized decisions that are essential in capital cases and that give due respect to the uniqueness of the individual defendant. In at 605 Monnover, "Qust as the State may not preclude the sentence from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence." Eddings, 455 U.S. at 113-14. In considering mitigating evidence, however, the sentencer "may determine the weight to be given relevant mitigating evidence." Id. at 114-15. Astoria law in existence at the time of trial required sentencing courts to consider all mitigating evidence, even if it did not establish a statutory mitigating factor. State v. McMurthey, 136 Ariz. 93, 664 P. 2d 637, 546 (Ariz. 1883) (an basic). In addition, the Arizona Supreme Court specifically directed sentencing courts to consider each mitigating circumstance, whether or not enumerated by statute, both individually and cumulatively. State v. Gallego, 178 Ariz. 1, 670 P. 2d 1097, 1116-19 (Ariz. 1884). Also at the time, the Arizona Supreme Court would conduct a de novo review of the trial court's rulings concerning aggravation and mitigation to decide, independently, whether the death sentence should stand. Brewer, 826 P. 2 d at 790-91. Had counsel presented a claim to the Arizona Supreme Court that the trial court failed to consider the cumulative weight of the mitigating evidence presented, we see no probability that Hurles would have prevailed. At sentencing, the trial court stated on the record that it had considered nonstatutory mitigating circumstances, "including any aspect of [Hurles's] character, propensities or record" that might call for leniency. The court also noted that it had

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the trial in which the jurors unanimously found him guilty of premeditated and felony murder. Nor did he raise such a concern at sentencing, where under then current Arizona rules, the trial judge acted alone in imposing the death penalty. Nor did Hurles's direct appeal or first petition for post-conviction relief raise a judicial bias claim. 2

2 Per Arizona Rule of Criminal Procedure 32.4(e), Hurles's first petition for post-conviction relief was assigned to Judge Hilliard. The trial court denied the petition, and the Arizona Supreme Court affirmed. Arizona v. Hurles, No. CR-99-0422-PC, Order Denying Petition for Review (Ariz. Jan 7, 2000).D

In January 2000, Hurles filed his first federal haboes petition in district court and filed an amended petition a few months later. The district court determined that Hurles had failed to present two of his claims to state court, and so (706 F.3d 1945) Hurles returned to the state court to exhaust these claims. In January 2001, Hurles filed a motion in the state court proceedings to recuse Judge Hilliard from further involvement in his case because he intended to file a second petition for post-conviction relief that would raise an appearance-of-free due process claim based on the special action proceeding. Hurles's recusal motion was referred to a different state trial judge, Judge Ballinger, who ruled that there was no basis to transfer Hurles's case to another judge. 3

3 Judge Ballinger consinued Hurles's motion as a motion for change of judge for cause. whth. under Antrumal Rule of Criminal Procedure 10.1(d), petition a detemied To a disease of judge if a file and impartial hection or trial cannot be held by motion of the interest or presuftor of the assigned judge. In March 2001, Hurles submitted his second petition for post-conviction relief, which was assigned to Judge Hilliard pursuant to

A09CASES

2317 Matthew Bender &; Company, Inc., a member of the Local/Accia Group. All rights reserved. Use of this product is subject to the restrictions and terms and conditions of the Matthew Bender Master Agreement.

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181 L. Ed. 2d 311 (2011) (per curtain) "Doubts about whether Smith is in fact guilty are understandable. But it is not the job of this Court, and was not that of the Ninth Circuit, to decide whether the State's theory was correct. The jury decided that question, and its decision is supported by the record."); Cullen v. Pimbalder, 131 S. Ct. 1388, 1410-11, 179 L. Ed. 2d 557 (2011); Feikner v. Jackson, 131 S. Ct. 1305, 1307, 179 L. Ed. 2d 374 (2011) (per curtain) (stating that our decision that the state court's determination was an unreasonable determination of the facts was "as inesplicable as it is unexplained."); Swarthou v. Cooke, 131 S. Ct. 859, 863, 178 L. Ed. 2d 732 (2011) (per curtain); Harrington v. Ridkler, 131 S. Ct. 770, 785, 178 L. Ed. 2d 824 (2011); Phems v. Moore, 131 S. Ct. 733, 746, 179 L. Ed. 2d 846 (2011); Rose v. Collins, 546 U.S. 333, 342, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) ("The panel majority's attempt to use a set of debatable inferences to set aside the conclusion reached by the state court does not satisfy AECPA's requirements for granting a writ of habess corpus."); Schirtn v. Smith, 546 U.S. 6, 8, 126 S. Ct. 7, 163 L. Ed. 2d 8 (2005) (per curtain) ("[The Court of Appeals] exceeded its limited authority on habess review . . ."); Middleton v. McNee, 541 U.S. 433, 437, 124 S. Ct. 1830, 159 L. Ed. 2d 70 (2004) (per curtain) ("[The Ninth Circuit's] conclusion failed to give appropriate deference to the state court's decision."); Yarbrough v. Gentry, 540 U.S. 1, 11, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003) (per curtain) Woodford v. Visconti, 537 U.S. 19, 20, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per curtain) (reversing Ninth Circuit's grant of habess relief because it "sccered[ed] the limits imposed on federal habess review by 28 U.S.C. § 2254(d)"); Early v. Packer, 537 U.S. 3, 10, 123 S. Ct. 362, 154 L. Ed. 2d 283 (2002) (per curtain) (admonishing the Ninth Circuit for "repeatedly and erroneously subsitict[ing]" the phrase "failed to apply" clearly established Supreme Court law" for "the more demanding requirement of $\S$ 2254(d)(1): that the decision be 'contrary to' clearly established Supreme Court law" (emphasies added)); see generally Hon. Darmuid F. O'Scanistan, A Decade of Revenue: The Ninth Circuit's Record in the Supreme Court Through October Term 2010, 87 Notre Dame L. Rev. 2185, 2168-76 (2012).

Our responsibility here is clear: under the strictures of AECPA and Supreme Court precedent, we are bound to uphold the state court's denial of Hurles's due process claim, which is neither contrary to Supreme Court precedent nor based on an unreasonable determination of the facts. Because the majority's decision invalidates a lawfully imposed capital sentence, further frees the (increasingly threadbare) fabric of our AECPA jurisprudence, and lays the groundwork for other Previous habess challenges to trial/judges' impartiality, I dissent.

Footnotes

" Charles L. Ryan is substituted for his predecessor, Dies B. Schirtn, as Director for the Arizona Department of Corrections. Fed. R. App. P. 43(d)(2).

We cite to Caperton, the Supreme Court's recent decision regarding judicial bias throughout this opinion. Caperton is not controlling insular as it announces new clearly established Supreme Court precedent that post-dates the state court decision at issue here, although we do not read Caperton to announce a new rule of law that affects our analysis. We refer to Caperton, however, where we find its analysis of previously established Supreme Court jurisprudence helpful to our resolution of this matter. 1 Under Arizona law, the denial of a motion for appointment of a second attorney is not immediately appesitable, and so a petitioner seeks review of such a ruling by filing a petition for special action in the Arizona Court of Appeals. See Hurles I, 849 P. 2d at 1 n. 1.

2 Per Arizona Rule of Criminal Procedure 32 A(e), Hurles's first petition for post-curviction relief was assigned to Judge Hillard. The trial court denied the petition, and the Arizona Supreme Court affirmed. Arizona v. Hurles, No. CR-99-0422-PC. Order Deming Petition for Review (Att. Jan 7, 2000).

3 Judge Sallinger consinued Hurles's motion as a motion for change of judge for cause, which, under Arizona Rule of Criminal Procedure 10.1(a), entitles a defendant 'to a change of judge if a fair and impartial hearing or trial cannot be had by reason of the interest or prejudice of the assigned judge." 4 The state trial court's decision is the last reasoned decision on the claim, and therefore the one that we must constrer under AECPA review. See 'Fist'v. Nunnemeier, 501 U.S. 797, 805, 111 S. Ct. 2560, 115 L. Ed. 2d 706 (1991). Because the court did not exprecisely apply the Supreme Court's decisions considering when a probability of judicial bias rises to a constitutional level, only the "contrary to" prong of $\S 2254(\mathrm{d})(1)$ is at issue here. See Williams v. Taylor, 529 U.S. 362, 405-07, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (describing the situations in which the "contrary to" prong will apply). 5 See, e.g., Cavanza v. Smith, 132 S. Ct. 2, 7, 181 L. Ed. 2d 311 (2011) (per curtain); ("Doubts about whether Smith is in fact guilty are understandable. But it is not the job of this Court, and was not that of the Ninth Circuit, to decide whether the State's theory was correct. The jury decided that question, and its decision is supported by the record."); Cullen v. Pimbalder, 131 S. Ct. 1388, 1410-11, 179 L. Ed. 2d 557 (2011);

Feikner v. Jackson, 131 S. Ct. 1305, 1307, 179 L. Ed. 2d 374 (2011) (per curtain) (stating that our decision that the state court's determination was an unreasonable determination of the facts was "as inesplicable as it is unexplained"); Swarthou v. Cooke, 131 S. Ct. 859, 863, 178 L. Ed. 2d 732 (2011) (per curtain); Harrington v. Ridkler, 131 S. Ct. 770, 785, 178 L. Ed. 2d 824 (2011); Phems v. Moore, 131 S. Ct. 733, 746, 178 L. Ed. 2d 849 (2011); Rice v. Collins, 546 U.S. 333, 342, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) ("The panel majority's attempt to use a set of debatable inferences to set aside the conclusion reached by the state court does not satisfy AECPA's requirements for granting a writ of habess corpus."); Schirtn v. Smith, 546 U.S. 6, 8, 126 S. Ct. 7, 163 L. Ed. 2d 8 (2005) (per curtain) ("[The Court of Appeals] exceeded its limited authority on habess review . . ."); Middleton v. McNee, 541 U.S. 433, 437, 124 S. Ct. 1830, 159 L. Ed. 2d 701 (2004) (per curtain) ("[The Ninth Circuit's] conclusion failed to give appropriate deference to the state court's decision."); Yarbrough v. Gentry, 540 U.S. 1, 11, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003) (per curtain); Woodford v. Visconti, 537 U.S. 19, 20, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per curism) (reversing Ninth Circuit's grant of habess relief because it "sccered[ed] the limits imposed on federal habess review by 28 U.S.C. $\S 2254(d)$ "; Early v. Packer, 537 U.S. 3, 10, 123 S. Ct. 362, 154 L. Ed. 2d 283 (2002) (per curtain) (admonishing the Ninth Circuit for "repeatedly and erroneously subsitict[ing]" the phrase "failed to apply" clearly established Supreme Court law" for "the more demanding requirement of $\S$ 2254(d)(1): that the decision be 'contrary to' clearly established Supreme Court law" (emphasies added)); see generally Hon. Darmuid F. O'Scannistan, A Decade of Revenue: The Ninth Circuit's Record in the Supreme Court Through October Term 2010, 87 Notre Dame L. Rev. 2185, 2168-76 (2012).

AIRCASES

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*118 IN THE GMEESTON COUNTY SON DESTRE of COURT EXPANTE THOMAS WAYNE FLORENCE COPY AT

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NOTES

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