Brittain, Kevin Lee
WR-83,002-01
| Tex. App. | Apr 14, 2015
Case Information

*1 Kevin Lee Drittain 30 March, 2015 30 m / c m .2015 83 , 002 − 01 3295 Fm 3514 Beaumost, TX 77705-7655

Honorable Abel Acosta, Clerk Court of Criminal Appeals P.O. 88 Y 12308

Austra, TX 78711-2308

RECEIVED IN COURT OF CRIMINAL APPEALS APR 142015 AbelAcosta, Clerk

RE: Cause No. F1219562-A

Dear Mr. Acosta,

Please find enclosed the following:

1) Memorandum of "Legal Citations and Regiments" as provided for in CCA institution 27 for Application for a Wilt of Habeas Corpus; and, 2) Appieants' Response to 1453 District Judges' "Debr. Senying Appieatios for Wilt of Habeas Corpus," with supporting documents.

All materials are in reference to the above numbered and stifled tause. Sincerely, Quasi Silly Cc: Naccgloches Court, District Clerk Lorette Clamrock.

*2 Cause NO: F12-19502-A Ex RATE: 145th Judieate District Reven Le Ertian § §

In The DistrictLevet N. Meisobrnes County, Texas

Aptlicans's Response to Drdse Benyins WREt of Habeas Corpus with "Findings of Fact"

On the 30 th

day of March, 2015; a, Keven LeE Ertian, TDCS*01915233, Ex RATE, file this RESPONSE to the above numbered and styled judges Dedee and Finding of Fact. 𝒱 , hewinafter referred to as Sppplicant, will address and refute, with referenced supporting and documented evidence, each enumerated "Finding of Fact" and subsequent "Conclusions of Law" as set forth personally by the hand of the Honorable ofudge loy . a) will follow the same chronological format as the Dedee filed by the judge, and again, will provide documented evidence provided by the ofudge himself, as well as reports and sworn statements from the casefote itself, in addressing the numerous inconsistencies and fabrications in this Cluee and Dedee.

RQ. 1813

*3 To WIT:

  1. Beginning with FINDINGS OF FACT (1.) in Judge's Order Denying Application of Wist of Heteas in pass, thereinagtac referred to as Judges Order, see Exhibit "E" pp 1-3), Judge los claims he never recued a removed himselfafion Appieants proceeding in 2000. At is an establishedfact that Appieants' afathes was previously a Maste Folic office with the Needoches Folic Department, and since that time, has long since been an Investigator with the Needoches County Attorneys Office; and, by Judge los's own words on page 2 (Judge's Order (3.), has had a very long and personal relationship with Judge los, including being "... the only person to arrest this DistrictJudge." Based on that relationship, Appieant and his father discussed numerous absences from the Senek in 2000 proceeding by Judge los as being attributed to an ethical response

Pq. 2 8/13

*4 to a Judicial Conflict (Reiterent, Judge los claims this never occurred, but provides no documentation in support of that claim. 2. An Enthusiasm of Fier (2.) of Judgies Under, ofudge los Denies the employment of Timofones as Applicants' attorny was ineffective based entuel, or an affilient filed bydition, of Gene as the sole source of effect. Deference attone Timofones filed this affidavit, in support of the States position, only after Judge los disclosed to him that an 11.07 Writ had been filed and an Ineffective Assistance S Pounsel claim had been lodged against him in said Writ. A deceived observer might logically conclude that an attone, aimed with such Annotatio, would file an affidavit so constructed as to illustrate wotling but a steller and ethical representative of his client. Nonetheless, Apphient will illustrate demonstrate the inconsistencies of Attone, of gens' affidavit and its clearly triased client in Judge los, with whom Supporting 8.3 f 13

*5 he has enjoyed a professional working relationship for decades. In Dtorny James (Jebuicd (see Exhibit"E, pp.1-3), first I), states that (he) "...took this case positions out of respect fodfwin Evittain Family." This establishes two sports: first, that Ten foms is a friend (the Evittain Family, and second, that Ten fomes has enjoyed a professional in What is an appreciably small legal community for many, many years, with thefeent, the goes on to state that he "...interviewed all witnesses and the sureating officers...", and that "...witnesses did not see the actual bonfiontation with the knife... And he further stated that "One writes (emphasis added) even stated that Mr. Evittain pulled the knife out and hung at the deputy." (See Exhibit"C, Pg.1) Exhibit"C" is an Investigator Report prepared by Anvestigator Army Ration, hired by this same Attorney, James, which states in fact,

*6 that, "After reviewing all original statements, viewing the sides and interviewing persons with first-hand privrndedes of the brief time period of the alleged assault (a Peace Officer, Partin can only find ONEMENTION (emphasis added) of a lunge or any motion towards Deputy Mfotanders in all the information gathered. This was two centreces in the favorable Cause of Hident, who was NOT present in the time period the act is alleged." (See Exhibit"D," Pg.1). An Exhibit"D," note the time stamp in the Warrentess of Hident, the report, prepared by Deputy Mf. Dondl. He could not have been a witness, the "One witness" stated by Dttony of James in the Fight, further, in the Voluntary Statement (ExhibitA, pp 1-2) given by Buyn Loudenslager, who not only witnessed but physically participated in this ention entine allegorism, Pg. 51813

*7 There is NO MENtION made of any lunger or more toward Deputy M Mdanders made with the kenife. And, according to a Judeclog's Earwissers of FACIT (Exhibit C, Pg.3), this buenritness, who witnessed the alleged assault, lhunger with the kenife, ". . . is the crux of the indictment." (Emphasis added.) Next, in affidait point (2), Attornesphous claims that he "registered the States by the from 15 doun to 5 years." This is simply, usture. Attonnes, affonss maintained throughout his representative, up until two weeks before the trial date, that the beee was "longus and ofobicated," rife with inconsistencies and choddy pubies work. (All of which was investigated and reported to him by a reputable and established schustrigates, Gaay Pattin, Whozeffinding of fact he completely ignored in his representative (Applicat.) Additionally, as part of a spraving list of unutulized witnesses, (in Exhibit"E, "Pp.1-3), who will find a devon statement (Defenice Condenslages, the property boxer and Pg. 10813

*8 original alleged "riction" of the 711 Cell (which was made by Bryan Lenden- slope, Who was not even at the scene.) Here is one of many pieces of exculpatory evidence which was never used by this attorney. Aypoint (3.) B. Affdavit, Attorney Deans, "The inciminating filen containing the Laffesaia was the main evidence," and "... the advance experiences," (Singular, as in "one", the only "eyeliftess who was not even present.) And a "Laffesaia?" Appiciant and ALC evidence reflect that there was NO Laffesaia, even. Of there had been some "Laffesaia," there would have been nonexed for any negotiations or plea Abstower. An point (4.) B. Affidavit, a decades-long relationship with Amestigata D. B. Brittain and the British family, has already been established, as has the bannon Amestidge that Amestigata Brittain had barrested offridge-loy. For Bffiant to state that "...he had not in previous years detained either offridge-loy... "is a Laffesaia. And in a further and perhaps more β 7813

*9 Growing statement, Altony fomestates that, "... the facts never took place, and even had it occurred, there were no grounds for a Change of Venue or a Motion to Pause the Fledge. " emphasis added.) In affidavit point ( 6. ), Altony fomess, who is allegedly a defense attorny for Explicant, Convicts his own direct with conclusive statements in "... the person (he) assaulted was a policeman, "and, "... the person assaulted was a peace officer..." When all evidence, including but not limited to the investigation and reports generated by his son of investigation, the last serious eyculpatory doubt on the entire case. In affidavit point (7.), exexplicants Defense Altony fomess woues a beckiet for the yung, stating said, "yuu, ... would have surely sentenced hinto substantially more time in prison."

2.8813

*10 Applicant asserts that the scope and content of the entire Epidemic of Alttony yamus is at best contrived and misleading and at worst evictation of Rules I.O3 and 3.04 (d) of the Teyes Displinary Rules of Doduct. All rules and documents, as well as sworn pleading, have been submitted to the Chief Displinary Consol of the State Eac of Teyes. Applicant resents that as a basis credible source of facts for the ofudgeistude of Denial, it is rather credible source for the basis of Areflective lsssistane of Counsel asdemonstrated herein. 3. An Judge Order 3) (Exhibit" E, P9.2), ofudge log was semantics to dismiss Applicants' entire familiar employment claim because Applicant examensly specified his ysthe is being a long time of investigal for the District Alttony, rather than the Loanty altorney's Office. This does nothing to change the orecall of facts of the claim that P4.9813

*11 relationship biases very well can be said do exist in the decades-long relationship between this and the Inequality of Office Buitan. If we ever go on to fully explain that in fact does exist, and a prior event if I was not in fact more increased; and again, if we can attempt to explain this most away with the inviolity does not change the effects. I was not change the effects. I I was not in the group of friends gathered to "witness" an aggravated assault rather than an illegal sheet racing event. It was the only of my current theories that I did in a private office. But I did not think I would like to illustrate that of the Inequality of Office Buitan, and it was a harassment I was not in the same single himself by the law that I would have been in the law of the relationship I could not be in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I I was not in the law of the relationship I would have been in the law of the relationship because of the relationship I could not be in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship because of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the law of the relationship I would have been in the

*12 These are not personal musings by 1 Ippiciant, this is all Avon, documented, and refue nced hercin. Ippiciant asked Mtorny of fom by a Mtorny for Ldange of 1 lonne (Just as even the very truppetion of Mtorny of fomess), but this request and counties other pleading were never arcued or fulfilled, nor did Mtorny of fomess ever bring clearly excubpatory evidence uncoured by of ivestgate to night. 4. Judges Mfatos 4), Judge boy Vains that Ippiciant was never being inter mated by Deputy, in his document marked EXthlit Three, yet in Mont 5, he has, the Judge references stotements by 1 fices and Ippiciant as the sides. 5. Judges Mfatos 5), Judge boy again heavily refue nced the 1 Ippiciant of Mtorny of fomess as his benchmark. 1 Ippiciant expects that he has already herein reprintedly called into question the credibility and validity of Pg. II 713

*13 Agames Affidavet and its inconsistency with any corresponding, documented effects Additionally, Appliant would like to clearly emphasize the words of a body by himself here (Exhibit E', pp. 3) in 5) of the Eyydpeis Cholis "He states that one of the eye witnesses stated that they saw the Applicant lung (sic) at an Officer with a smile (WHICH IS THE Crux OF THE InDICITMENT.) (Emphasis added.) Applicant has provided documentation herein that there were No witnesses to the alleged "huge with a smile at the Effice," the bone exception being the statement by a deputy also was not even at the scene to witness the alleged attack. "Eyydpeis Cholis "Concuersons of I. "Eyydpeis Cholis Concuersons of Law 1.), the dyndge Healy states the following, verbatim in his bus words, that we but ne last clear example.

*14 of =Areflective Resistence of Counsel; of judge log states the following: 1. "I Gravid One, the Appointment makes glectual blans about his would most likely constitute ineffective assistance of Counsel." Applicant contends, that for a preponderance of all evidence and gfactual documentatios he has provided herein, that he has clearly proven his allegations as being TRUE. And therefore, by of judge log's own of conclusions, the chabitment is invalid and that Tmofones performance, or lack the thereof, was clearly definitive of ineffective assistance of Counsel. Applicant has begun and will continue to make every effort to the letter of the law, and the State Ease, to correct this injustice, and in fact, denied of due process. Respectfully submitted,

Ketton Lee Eertrand TDCs 8 / 915233 CAUSE NO, F12-19562-A Q. 13813

*15 INMATES LNSWORN DECLARATION

AFKYIN LEE ERITTAN, TOCI DI915233, being presently incarcerated in the Texas Department of Criminal Justice, Larry Grist Unit, 3295 Fm 3514, Beaumont, TX 77705, As solemnly a wean under penalty, 5 perjury that the Jogging Applicants Response to Judges Under Denying, Wist 7 Habeas Corpus, and, Memorandum of Legal Citations and Arguments, are both true and correct in their entrusts.

Signed by my head on this the 30-day of Mforsch, 2015.

CHEN LEe ERITTAN, EX PARTE TOCS # DI915233

RE: Cause No. F1219562-A

*16 STATE OF TEXAS 1 NACOGDOCHES COUNTY)

VOLUNTARY STATEMENT

CASE: S1116 9.53 DATE: 9 − 5 − 12 TIME: ◻ PLACE: 2001 C C 4111

MY NAME IS EXYAN (D) WAYSENCE MY DATE OF BIRTH IS 2 / 25 / 1965 I LIVE AT 440 CE 496 AGC TX MY HOME PHONE NUMBER IS 936546192 MY NEAREST RELATIVE IS EEN ALBANDS LACVE AND THEIR PHONE NUMBER IS 9365561507 I AM GIVING THIS STATEMENT TO J. Spinks WHO HAS BEEN PROPERLY IDENTIFIED AS A DEPUTY SHERIFF FOR THE NACOGDOCHES COUNTY SHERIFF'S DEPARTMENT.

I was called by my courier Alyca Lavenelasse who lives a 2000 CE 411 AGC, concerning a male suspect, Kevin Batinci, who dysitens as Alyca wasa me @ 2009 CE 411 because Kevin was yelling was curseing. I then immediately called 911 as worths on what was taking place a 2009 CE 411. I was you called by Alyca telling me to honey. I sawing as was able to take with Kevin who any incomew. Conventin lures now 45 mins (unple) then 450 hours as sailit folles the other one to live as insurders. I am there just sisobyes ones as the pulla a knife when office get his peppes.

Bryan made no MASIA of bauit hanging of apabah grown only mactonstain didn't bau orders of africans not satectane. 21000000

LIGOING STATEMENT WHICH CONSIST OF PAGE (S) ORRECT. I GAVE THIS STATEMENT OF MY OWN FREE E TRUTH AND I WILL TESTIFY TO THE SAME IN COURT.

*17 spray out. Run the pulses out his knife on blouse was open. Offin ousum Kmin to stop as the come to him the officer. Office saib stop as per asum the Knife. Kmin saib shoot me, Kmin saib throw the Knife near the house. Offin then holsteum weupen: as this to hendef Kevin but he sesisterg as offin took Kevin to the gowns. Offin was unable to hassett Kevin asd I heus Kmin (C) turns to leaps Fim hitting the office. 2 to officer Arview as assisted 1st offin in Arresting Kevin.

*18 I, Janice E. Loudenslager, was at my residence at 2009 CR 411. Kevĩn Brittain arrived at my house at or around 9:30 A.M. as I was getting ready for church. We had decided to break up after a 2 plus year relationship and were separating. He calmly and kindly asked me if he could get his belongings (Ex-clothes, bibles, shoes, ect) I asked him to hurry and he began to raise his voice at me. When he walked outside with some of his belongings, I closed and locked the door behind him. He stayed outside for about another five minutes, then he left in the direction of his parent's house, who live just down the road from my house. I left and attended church. At approximately 6:00P.M., Kevin came back to my house, unaware that my two daughters Alyssa Loudenslager and Adysson Loudenslager were at home with me. I was standing in my kitchen when he knocked on my front door. I walked into the living room where Alyssa was sitting in the living room floor cutting out pictures for her science project. I opened the front door and Kevin asked to get the remainder of his things, I let him in. I didn't want to have any altercations with Kevin with my daughters there, as we have both agreed to keep our differences away from the girls. I could tell Kevin was emotionally upset. As he got his things, we were both crying and emotional. Adysson, walked up to Kevin and asked "Where is Kolten?" (Kevin's son) "He is with my parents and I just have some things I need to get." He walked into the kitche. 1 and asked me for a trash bag out of the utility room to put his clothes in. I said "yes" and that I would help him. I waited for him to get a bag. Kevin's class ring and a pocket knife were laying on my bar. I handed them both to him and he put them both in his shorts pocket. The longer he was there the more emotional we all became. Kevin walked into our bedroom and opened the chest of drawers where he kept his clothes and began to get them out and putting them into the bag. He walked back into the living room and sat down the bag still looking for all his belongings. I asked him to hurry and that seemed to frustrate him. I could tell he was hurt, I was hurt. The girls were watching and crying. We had been a family for over two years. It was hard to do, especially for my girls. I asked Alyssa to call her dad (Bryan Loudenslager) with the sole intention to have him come over and pick up them and and take them home with him, in order to let Kevin and I talk through things without my girls being present. Alyssa did as I asked. Kevin overheard this and got very upset, not knowing my intentions, I suppose. Kevin has never liked the character of Bryan and always tolerated him for the girls. He began to raise his voice at me wanting to know what I was thinking by calling someone like Bryan at a time like this. Kevin began looking around his room for his things. He lifted the couch looking for the ipad he bought me as a gift, because I sometimes slide it under the couch. Things seemed to become more and more tense, so I again asked Alyssa to call her daddy and make sure he was coming. She did as I asked her. About ten minutes later Bryan and Brenda, his wife, arrived. At this point everyone was upset. Brenda came into the house to get the girls and Bryan stood at the door. Kevin and Bryan walked into the front yard and began

*19 talking as I, Brenda, and my two daughters stayed inside. Kevin and Bryan calmly spoke in the front yard for about five to seven minutes when the police car came barreling into my driveway. I was instantly aggravated, because I knew that Bryan and Brenda must have called them and that is something I did not want to happen. It was uncalled for. I was completely unaware that the officers were called. The officer asked me if we were ok and I said "yes, we are all just fine." He walked over to Bryan and Kevin. They were still having a calm conversation. I saw the Officer put his hand over his pistol and also, I think on his pepper spray. Kevin obviously saw too, and started backing away from the officer slowly into the yard. I could see Kevin's' face was nervous. Kevin stepped at least eighteen to twenty feet from the Officer while the Officer stood still. Then the Officer pulled and pointed his pistol at Kevin and began to yell for Kevin to get on the ground. Kevin said "You haven't even told me what l've done. Please put the pistol away!" Kevin had his hands in the air and I was terrified that the Officer was going to shoot Kevin, Kevin was terrified too. Kevin pleaded with the Officer to put the gun away and that he was unarmed. The Officer asked for any weapons, Kevin responded "No, but I do have a pocket knife you would consider a weapon." Then said "If I get it out I am afraid you will shoot me" the officer screamed for Kevin to get the knife out and throw it. Kevin complied and asked the officer not to shoot. Kevin pulled the knife out of his right bottom pocket of his shorts, the same one I had given him moments before in the kitchen. Bryan began to scream "He's got a knife" and "he's going to shoot him, get inside the house." That made everyone very nervous. Bryan was standing probably five to eight feet from the Officer. The Officer told Kevin he was about to shoot him and Kevin threw the knife away so hard it bounced off the house to the right of Kevin. Kevin didn't charge or lunge at anyone with the knife. He was scared and threw it instantly. I could tell Kevin was terrified. I was terrified. It was horrible to see him this way. Kevin raised his hands, palms up opened and slowly walked towards the Officer. When Kevin was eight to ten feet away from the officer Bryan grabbed Kevin by the arm and the Officer holstered his gun and "bulldogged" Kevin so hard. Kevin slid three to five feet on his back across the yard. Bryan jumped on Kevin and tried twisting his arm behind him. The officer was lying on Kevin as well. Never did the Officer ask for Bryan's help. The second Officer arrived and Bryan started yelling "Taze him, taze him!" and they did over and over and over again. Then Bryan jumped in and started trying to twist Kevin's arm behind him again when he was flat on his back. During that time the second Officer arrived and ran up to them. He hand cuffed Kevin and started Tazing and shocking him over and over again. Kevin's body was locking up. They pulled Kevin up by the handcuffs and tazed him more. Kevin could hardly walk. Kevin has never even acted like would do any harm to me or the girls, and he did not deserve this at all. Kevin has never been anything but a very loving father figure and is my very best friend, who I love dearly. The police should have never been called and I strongly believe that the calls made against Kevin by Bryan / Brenda were unnecessary and very

*20 likely fabricated. Bryan has always tried to destroy and come between every relationship l've had since our divorce. He knew that he could cause a big problem by calling the police, and did just that. Till this day I love Kevin Brittain and trust him completely at my home and to be in company of my daughters with or without my presence. He loves us and we love him deeply. I believe, Bryan called the Officer and made false statements that Kevin had "gone crazy" and was vandalizing my home. No wonder the Officers approached Kevin with such force when they arrived. I never saw Bryan or Brenda make a call, so they had to have made the false calls before arriving, as if there was anything to report. Besides, this is my home and Kevin had committed no crime. I just didn't want my girls there while he was getting his things. It was too hard on all of us. I or my daughters have ever been victimalized by Kevin. He loves us, and we love him dearly. Furthermore, I will not pursue charges on any innocent man. Bryan and Brenda are no longer welcome on my property since this happened. Kevin is allowed and always will be. Kevin could've been killed just so Bryan could do what he does best, cause drama. Also my girls think more of Kevin as a father than Bryan anyday.

*21

INVESTIGATION REPORT

CLIENT: KEVIN BRITTIAN

DATE: 12 / 3 / 12

INVESTIGATÖR

DATE: 12 / 3 / 12

RARY PARTIN

AFTER REVIEWING ALL ORIGINAL STATEMENTS, VIEWING THE VIDEO AND INTERVIEWING PERSONS WITH FIRST HAND. KNOWLEDGE OF THE BRIEF TIME PERIOD OF THE ALLEGED ASSAULT OF A PEACE OFFICER, PARTIN CAN ONLY FIND ONE MENTION OF A LUNGE OR ANY MOTION TOWARDS DEPUTY MOLANDERS IN ALL THE INFORMATION GATHERED. THIS WAS TWO SENTENCES IN THE PROBABLE CAUSE AFFIDAVIT PREPARED BY DEPUTY MCDONALD, WHO WAS NOT PRESENT IN THE TIME PERIOD THE ACT IS ALLEGED. MCDONALD STATED "DEPUTY MOLANDERS ORDERED THE DEFENDANT TO DROP THE KNIFE'. 'THE DEFENDANT OPENED THE KNIFE AND LUNGED TOWARDS DEPUTY MOLANDERS". "THE DEFENDANT THEN THREW THE KNIFE INTO THE FLOWER BEDINFRONT OF THE RESIDENCE". NO OTHER PERSON SUBMITTING A STATEMENT MADE MENTION OF A LUNGING TOWARDS THE DEPUTY MOLANDERS. ONE PORTION OF THE CASE REPORT AS SUBMITTED BY MCDONALD REFERS TO BRITTIAN LUNGING AND THROWING AWAY THE KNIFE. IT APPEARS THAT KEVIN BRITTIAN WAS ATTEMPTING TO KEEP THE DISTANCE BETWEEN HIMSELF AND DEPUTY MOLANDERS GREAT ENOUGH THAT MOLANDERS COULD NOT PEPPER SPRAY OR TAZE HIM. PARTIN NOTED NO ACTION OF DEPUTY MOLANDERS TO RETREAT BACK FROM A LUNGE WITH'A KNIFE. THE ACTION NOTED ON THE VIDEO WAS MOLANDERS REHOLSTERING HIS DUTY FIREARM AND THEN ADVANCING RAPIDLY IN THE DIRECTION BRITTIAN IS LOCATED AT THIS TIME. THE EX-HUSBAND OF JANICE LOUDENSLAGER GRABBED THE LEFT ARM OF KEVIN BRITTIAN AFTER BRITTIAN THROWS AWAY THE KNIFE AND HELD BRITTIAN IN A FIXED POSITION UNTIL DEPUTY MOLANDERS COULD RUN TO THE SPOT BRITTIAN AND LAGENSLAGER WERE STRUGGLING AND JUMP ON BRITTIAN IN AN ATTEMPT TO "TAKE BRITTIAN TO THE GROUND". THE ATTEMPT OF MOLANDERS TO TAKE DOWN BRITTIAN WAS SLIGHTLY

*22 MISCALCULATED AND MOLANDERS FELL TO THE GROUND LANDING ON HIS SHOULDER, THEREBY INJURING HIMSELF.

IN THE REPORT, MCDONALD WRITES "DEPUTY MOLANDERS ORDERED KEVIN TO DROP THE KNIFE AS KEVIN WAS BACKING AWAY FROM DEPUTY MOLANDERS. KEVIN THEN LUNGED AT DEPUTY MOLANDERS AND TOSSED THE KNIFE INTO THE FLOWER BED." IT APPEARS THAT BRITTIAN CONTINUED TO MOVE AWAY FROM MOLANDERS DURING THE ENTIRE ACTION UNTIL BRITTIAN WAS GRABBED BY BRYAN LAGENSLAGER. IT SEEMS LAGENSLAGER MADE THE INITIAL ASSAULT ON BRITTIAN, HOLDING HIM UNTIL MOLANDERS COULD CATCH UP WITH BRITTIAN AND ATTEMPT TO TAKE HIM TO THE GROUND. BY WITNESS STATEMENTS AND OFFICERS STATEMENTS, KEVIN BRITTIAN NEVER ATTEMPTED PHYSICAL CONTACT WITH DEPUTY MOLANDERS, BUT CONTINUED TO KEEP A DISTANCE SAFE FROM THE PEPER SPRAY OR TAZER OF MOLANDERS. PARTIN BELIEVES BRITTIAN DID NOT LUNGE AT MOLANDERS AT ALL, BUT CONTINUED MOVING OUT OF RANGE OF THE PEPER SPRAY. BRITTIAN DID THROW THE KNIFE AWAY FROM HIS POSSESSION IN A RAPID MANNER IN THE FEW SECONDS THE ENTIRE INCIDENT LASTED. TWO WITNESSES STATE THAT BRITTIAN BEGAN TO WALK TOWARD MOLANDERS WITH HIS HAND EXTENDED PALMS UP TO SURRENDER WHEN BRYAN LOUDENSLAGER GRABBED BRITTIAN'S ARM AND BEGAN TO STRUGGLE WITH BRITTIAN. THE ENTIRE INCIDENT LASTED VERY FEW SECONDS.

THE ORIGINAL REPORT HAS MANY FALSEHOODS WRITTEN INTO THE BODY OF THE REPORT. THE SHERIFF'S DEPARTMENT VIDEO, EVEN THOUGH DOES NOT SHOW 100 PER CENT OF THE INCIDENT DOES DISPLAY ENOUGH TO SHOW THE FALSEHOOD ENTERED BY THE SUBMITTING DEPUTY.

AS FOR THE KNIFE SAID TO HAVE BEEN USED TO LUNGE AT DEPUTY MOLANDERS, MOLANDERS HAD ASKED BRITTIAN IF HE HAD ANY WEAPONS AND BRITTIAN HAD VOLUNTEERED THAT HE HAD A KNIFE. MOLANDERS TOLD BRITTIAN TO TAKE OUT THE KNIFE AND THROW IT AWAY, WHICH BRITTIAN DID. WHEN BRITTIAN PULLED THE KNIFE OUT OF HIS PANTS POCKET,

*23 BRYAN LOUDENSLAGER STARTED YELLING REPEATEDLY "HE'S GOT A KNIFE"! "HE'S GOT A KNIFE"! OTHER WORDS WERE SAID BY LOUDENSLAGER SUCH AS "GET DOWN, HE'S GONNA SHOOT HIM"! BRITTIÁN THREW THE KNIFE AS EAR AWAY FROM HIMSELF AS HE COULD AND ASKED DEPUTY MOLANDERS DON'T SHOOT ME, I HAVE A LITTLE SON AT HOME, PLEASE DON'T SHOOT ME! ABOUT THIS TIME, BRYAN LOUDENSLAGER GRABS BRITTIAN BY THE LEFT ARM AND HOLDS BRITTIAN UNTIL DEPUTY MOLANDERS CAN ADVANCE AND JUMP ON BRITTIAN AFTER HAVING REHOLSTERED HIS DUTY FIREARM. MOLANDERS ENDS UP TANGLED UP WITH BRITTIAN AND LOUDENSLAGER ON THE GROUND. MOLANDERS FALLS ON THE GROUND AND HURTS HIS SHOULDER. LOUDENSLAGER ATTEMPTS TO GET BRITTIAN'S ARMS BEHIND HIS BACK TO CUFF BRITTIAN, BUT THE INJURED DEPUTY IS LAYING ON BRITTIAN IN SUCH A MANNER THAT HOLDS BRITTIAN'S ARMS IN A FIXED POSITION. ABOUT THIS TIME, DEPUTY MCDONALD -ARRIVES ON THE SCENE AND IS TOLD BY BRYAN LOUDENSLAGER "TAZE HIM"! TAZE HIM"! MCDONALD TAZES BRITTIAN SEVERAL TIMES AND THE BODIES BECOME UNTANGLED. BRITTIAN IS SUBDUED AND PLACED IN THE PATROL UNIT OF MCDONALD.

PARTIN BELIEVES THAT BRYAN LOUDENSLAGER RECEIVES A TELEPHONE CALL FROM ALYSSA LOUDENSLAGER TO COME GET THE TWO GIRLS WHILE JANICE LOUDENSLAGER AND KEVIN BRITTIAN TRY TO WORK OUT THEIR PERSONAL PROBLEMS WITHOUT THE TWO YOUNG GIRLS BEING PRESENT. BRYAN LOUDENSLAGER CALLS 911 AND ADDS TO THE STORY ENOUGH TO CAUSE DISPATCH TO BELIEVE THERE IS A DISTURBANCE IN PROGRESS AT 2009 CR 411 EVEN THOUGH HE IS NOT PRESENT AT THIS LOCATION. WHEN BRYAN LOUDENSLAGER RECEIVES A SECOND CALL FROM ALYSSA TO CHECK TO SEE IF HE DID GET STARTED TO THE HOUSE, HE TAKES WHAT INFORMATION ALYSSA GIVES HIM AND ADDS TO THAT STORY WHEN HE CALLS BACK TO 911. THE INFORMATION NOW GIVEN TO DISPATCH IS THAT KEVIN BRITTIAN HAS GONE CRAZY AND IS VANDALIZING THE HOUSE AND DISPATCH PASSES THAT INFORMATION ON TO THE YOUNG INEXPERIENCED PATROL DEPUTIES. BY THIS TIME THE

*24 PROBLEM IS TOTALLY BLOWN OUT OF PROPORTION: FROM LISTENING TO THE RADIO TRAFFIC ON THE VIDEO, RARTIN CAN HEAR THE CALL SOUNDING VERY SERIOUS. WHEN MOLANDERS PULLS UP TO THE SCENE, KEVIN BRITTIAN AND BRYAN LOUDENSLAGER ARE STANDING ON THE SIDEWALK BY THEMSELVES HAVING WHAT APPEARS TO BE A CONVERSATION. MOLANDERS STOPS A SHORT DISTANCE FROM THE TWO MEN AND THEN WALKS UP DIRECTLY BETWEEN THE TWO MEN HE MOST LIKELY DOES NOT KNOW. HE NEXT HAS A WORD OR TWO WITH A FEMALE BELIEVED TO BE JANICE LOUDENSLAGER. MOLANDERS THEN ATTEMPTS TO APPROACH THE TWO MEN AND KEVIN BRITTIAN BEGINS TO MOVE AWAY FROM MOLANDERS. THERE IS NO SOUND ON THE VIDEO. ALL OF A SUDDEN THINGS GET CRAZY AND BRITTIAN KEEPS MOVING AWAY FROM MOLANDERS. MOLANDERS CAN BE SEEN DRAWING HIS DUTY FIREARM AND THEN A VERY SHORT TIME LATER REHOLSTERING THE WEAPON. THIS ACTION CAUSES PARTIN TO BELIEVE BRITTIAN HAS DISCARDED THE KNIFE AS ORDERED BY MOLANDERS. MOLANDERS ARRIVED' AT THE LOCATION AT 1829 HOURS. AFTER SHORT VERBAL CONTACTS WITH AT LEAST THREE PERSONS AT 1829:56, MOLANDERS DRAWS HIS FIREARM (APPEARS TO BE GIVING VERBAL COMMANDS) THEN REHOLSTERS HIS WEAPON AT 1830:17 (A SIGN THAT BRITTIAN HAS DISCARDED THE KNIFE, FOLLOWING MOLANDERS' ORDERS). MOLANDERS HAS HIS WEAPON OUT OF THE HOLSTER FOR TWENTY ONE SECONDS ONLY.TWENTY ONE SECONDS SEEMS TO BE A PRETTY FAST RESPONSE TIME TO GET RID OF A WEAPON.

*25 1838:59 (CONVERSATION BETWEEEN OFFICERS AND BURL EVANS) "HE'S GOING TO JAIL, AGGRAVATED ASSAULT ON PEACE OFFICER WITH A KNIFE AND BURGLARY HABITATION"

1839:35 CONVERSATION BETWEEN OFFICERS? "WE'VE GOT BOH AGGRAVATED ASSAULT ON PEACE OFFICER." NOBODY GOT INJURED BUT"

1843:46 MCDONALD LEAVES SCENE TO TRANSPORT BRITTIAN TO JAIL.

AT NO PLACE IN THE VIDEO TAKEN BY MOLANDERS' UNIT COULD ANY INDICATION OF A "LUNGE" BE SEEN AS MOLANDERS SAID KEVIN BRITTIAN DID WITH THE KNIFE. DURING THE TIME MOLANDERS ADVISED BRITTIAN LUNGED WITH THE KNIFE, MOLANDERS WAS IN THE PROCESS OF PUTTING HIS SIDEARM BACK IN THE DUTY HOLSTER. IF A LUNGE WITH A KNIFE HAD OCCURRED AT ANY TIME DURING AN ARREST, IT IS UNREASONABLE THAT AN OFFICER COULD REHOLSTER HIS WEAPON AND PROCEED TO TAKE A SUSPECT TO THE GROUND BY JUMPING PHYSICALLY ON THE SUSPECT.

NO MIRANDA WARNING NOTED MCDONALD ASKED QUESTIONS DURING TRANSPORT

CHARGES ACTUALLLY FILED CRIMINAL TRESPASS "A" RESISTING ARREST OR TRANSPORT "A" AGGRAVATED ASSAULT OF PUBLIC SERVANT "F1" THE PLAYERS IN THIS INCIDENT ARE IDENTIFIED AS FOLLOWS: KEVIN LEE BRITTIAN, WM, 7/1/75 ALLEGED ACTOR JANICE EDWINDA EMERSON LOUDENLAGER, WF, 11/22/72, ALLEGED VICTIM

*26 ALYSSA ERIN LOUDENLAGER, WF, 1/18/99, DAUGHTER OF BRYAN AND JANICE LOUDERLAGER

ADYSSON LOUDENLAGER, WF, 6/22/07, DAUGHTER OF JANICE AND DRYAN LOUDENLAGER

KOLTEN BRITTIAN, WM, 2/1/10, SON OF KEVIN BRITTIAN AND HOLLY SCOGGINS

HOLLY SCOGGINS, WF, EX-GIRLFRIEND OF KEVIN LEE BRITTIAN AND MOTHER OF KOLTEN BRITTIAN, PRIMARY CQUSTODIAN OF KOLTEN BRITTIAN HOLLY SCOGGINS CONTACTED PARTIN BY TELEPHONE AND WANTED TO TELL PARTIN OF THE PLANS SHE AND BRYAN LOUDENLAGER DISCUSSED TO USE KEVIN BRITTIAN AS A REASON TO GET CUSTODY OF ALYSSA LOUDENLAGER AND ADDYSON LOUDENLAGER FROM JANICE LOUDENLAGER. SHE SAID THAT BRYAN LOUDENLAGER WANTED THE PORTRAY KEVIN BRITTIAN AS A BAD PERSON THAT IS HAVING A BAD EFFECT ON THE TWO YOUNG GIRLS. SHE ALLOWED THAT SHE WOULD TESTIFY TO THOSE DISCUSSIONS BETWEEN HERELF AND BRYAN LOUDENLAGER. SHE TOLD PARTIN THAT KEVIN HAD BEEN CLEAN AND SOBER SINCE THE BIRTH OF HIS SON, KOLTON.

OTHER WITNESSES MAY BE DISCOVERED THAT WOULD AID IN THE DEFENSE OF BRITTIAN.

DEPUTIES INVOLVED IN INCIDENT: DEPUTY STEVEN MOLANDERS, NEW HIRE WITH ALMOST NO EXPERIENCE ON THE STREET. FORMER OCCUPATION WAS THAT OF A "RAPPER", TRAVELING WITH AND DOING "HIP HOP" SHOWS WITH BLACK ENTERTAINERS. STEVEN MOLANDERS IS THE NEPHEW OF DEPUTY KENNETH KING ON NCSO. MOLANDERS APPEARS TO PARTIN TO BE PRETTY IMMUTURE AND TOO INEXPERIENCED TO WORK ALONE ON THE STREETS. DURING THIS INCIDENT, MOLANDERS USED VERY POOR TACTICS IN CONTROLING THE SCENE. HIS INJURY WAS MOST LIKELY DUE TO HIS ATTEMPT TO JUMP ON BRITTAIN AND TAKE HIM DOWN TO THE GROUND. MOLANDERS WAS SAID BY AT

*27 LEAST TWO PERSONS TO HAVE LANDED ON HIS RIGHT SHOULDER AS HE FELL ON TOP OF BRITTIAN.

DEPUTY AUSTIN MCDONALD, MAY HAVE A YEAR ON THE STREETS WITH NCSO. HE WAS A RESERVE FOR A WHILE AND MAY HAVE WORKED IN THE JAIL. MCDONALD OFTEN RODE WITH SEVERAL OFFICERS WHILE HE WAS A RESERVE. HE IS MOST LIKELY A BETTER DEPUTY THAN MOLANDERS. MCDONALD COMES FROM A TROUBLED HOME IN GARRISON WITH PARENTS DEEPLY INVOLVED IN SUBSTANCE ABUSE. HE IS A PERSON WELL KNOWN TO PARTIN. AUSTIN MCDONALD WAS RAISED BY HIS PATERNAL GRANDPARENTS WHO WERE GOOD CHRISTIAN PEOPLE.

DEPUTY 525 WHO WAS THE LAST DEPUTY TO RESPOND TO THIS LOCATION IS A PERSON UNKNOWN BY PARTIN. HIS ACTIONS ON THE VIDEOS CAUSE PARTIN TO BELIEVE HE IS AN EXPERIENCED STREET OFFICER.

THE DISPATCHER WORKING THIS EVENT IS SAID TO BE COLTON MURRAY WHO IS CURRENTLY WORKING NIGHTS AT THE NCSO LEC JAIL. AFTER PARTIN LEARNS MORE ABOUT THE PHONE CALLS BETWEEN ALYSSA LOUDENLAGER AND BRYAN LOUDENLAGER, PARTIN WILL ATTEMPT TO INTERVIEW MURRAY.

*28

NACOGDOCHES COUNTY SHERIF'S OFFICE Warrantless Arrest Probable Cause Affidavit

State of Texas County of Nacogdoches

Cause 8: Case 8:

The undersigned, of the NACOGDOCHES COUNTY SHERIFY'S OFFICE under oath states that there existed probable cause for the arrest without warrant of the person named below based upon the following:

Name of arrestee: KEVIN L. BRUTTAIN Date of arrest: 09/09/12 Place of arrest: 2009 CR 411

The above-named person is currently being detained on the following charges:

Offense

AGG ASSAULT AGAINST PUBLIC SER 3.CEIMINAL TRESPASS HABIT/SUPERF 3.RESIST ARREST SEARCH OR TRANSP

Date/Time 09/09/12 19:12:03 09/09/12 19:13:33 09/09/12 19:20:18

Statute Code 22.02 (b)(2)(14) 30.05 ( a ) ( 1 ) ( 2 ) 38.02(a)

CC Bail Amt FI MA MA

The undersigned believes that probable cause existed for this warrantless arrest and the continued detention of the above-named person based upon the following information which was either known by the undersigned personally or was obtained by the undersigned in his/her capacity as a peace officer: on 09/09/12 at approx 1815 hours deputies were dispatched to the 2000 Btk of cr 411 in reference to disturbance in progress. Upon arrival deputy molanders a 532 ∘ observed male and female subject yelling at each other on porch [2] Deputy molanders ordered the defendant to step away from the porch and speak with deputy molanders. The defendant refused and reached in his pocket. Deputy molanders drew his duty weapon and ordered the defendant to keep his hands out of his pockets, when the defendant pulled a knife from his pocket. deputy molanders ordered the defendant to drop the knife. The defendant opened the knife and lunged towards deputy molanders. The defendant then threw the knife into the flower bed in front of the residence. Deputy molanders took the defendant to the ground in attempt to arrest him. deputy mcdonald arrived and observed the defendant resisting and pulling away from deputy molanders on the ground. deputy mcdonald drive stunned the defendant with his duty to the staff to be suffered during the incident. deputy mcdonald spoke with the victim of the disturbance who stated that the defendant entered her residence to get his things but refused to leave. The defenant was yelling and vandalized the inside of the residence. The undersigned requests the magistrate to whom this statement is presented to execute an ordered determining that probable cause existed for the above-described warrantless arrest, authorizing the continued detention of the above-named person on the stated charges, and setting appropriate bail, if any.

Deputy MP Bonsid 5531 was NOT even on the scene of incident at the time he Allages hevein he wstnesses defordant lunge at Molendex, and, he is the OWg witness who stated this.

CC Bail Amt FI MA MA

*29

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

On this the 10 th day of February, 2015 came on to be considered Relator's application for Writ of Habeas Corpus filed on February 3, 2015. The Court has carefully considered the Relator's Application for Writ of Habeas Corpus, the attached exhibits, the sworn pleadings, the Counsel's personal recollection, and finds that the Application is unfounded in fact and/or law and should be denied. Therefore, the relief sought in the Application is hereby DENIED. The findings of fact and conclusions of are set forth below

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FINDINGS OF FACT

  1. The Applicant is a repeat offender who was placed on probation for Aggravated Kidnapping back in 2000 and later revoked in 2004. He received a five year sentence for his case when his probation was revoked. In Ground Two of his application, the Applicant claims that I, the trial judge, recused myself in that matter. After reviewing the papers in that prior case it is clear that I never recused myself.
  2. In Ground One the Applicant complains that his trial attorney was ineffective by telling him that he could not get a fair trial, and that he would receive a 99 year sentence or a

*30 life sentence if he did not take the five year sentence that the State was offering. The Applicant also claims that he did not have time to look for another lawyer because his attorney used up all of his available time on the case. His trial counsel, Tim James is Board Certified in criminal law. Based on the affidavit of Mr. James (attached as Exhibit #1), the Court finds that Mr. James never said that the Applicant could not get a fair trial nor that he would receive a sentence of 99 years or life in prison. Based on the affidavit of Mr. James, the Court finds that the Applicant was given several months to consider the 5 year plea bargain and that he was advised by Mr. James to talk to other attorneys about his case. 3. In Ground Two, the Applicant claims that his father is an investigator for the Nacogdoches District Attorney's Office. The court finds that his father is an investigator for the Nacogdoches County Attorney's Office. Therefore, the claim regarding his father's employment is false. The Applicant goes on to claim that his father had detained both the District Attorney and me during a disturbance. This is absolutely false. There has never been any disturbance involving me and the District Attorney. The Applicant claims that his attorney knew all of this and said that he would file a motion to have the case transferred to another court; however he failed to do this. Based on the attorney's affidavit, the Court finds that this claim is false.

  • Furthermore, the applicant's father did detain me once but it had nothing to do with the District Attorney. Here are the details of that temporary detention. In either 1978 or 1979 a group of fifteen to twenty teenage boys, including myself, gathered after a Key Club meeting to watch two other boys race their cars on the Loop in Nacogdoches. After the two boys raced by, Officer Brittain (the Applicant's father, then an officer for the Nacogdoches Police Department) drove up beside the group and detained all of us. We were instructed to drive to the police station. We did as we were told. At the police station, two of us asked to see a copy of the law that they were holding us under. They indicated that they were holding us for "participating" in an illegal street race. We pointed out that we were merely observing and not participating. The officers agreed and let us go. Ever since then the Applicant's father and I have often joked that he is the only person to arrest this District Judge. Investigator Brittain and I have a good relationship and kid each other on a regular basis. There are no hard feelings by me that would prevent this Applicant from receiving a fair trial in my court.

  • In Ground Three, the Applicant complains that his counsel failed to appeal the fact that I denied a motion to suppress. The counsel could not appeal because part of the 5 year plea bargain offer was that the Applicant would not appeal the denial of his motion to suppress. (See the Applicant's Certification regarding appeal marked as Exhibit 2.) The Applicant's attorney asked me at some point to make Findings of Fact and Conclusions of Law regarding the motion to suppress. I did so and they are marked as Exhibit Three.

  • The Applicant complains in Ground Four that his attorney told him that he could not win his case due to the facts of his prior felony conviction, that the jury would be older Republicans, and because the victim was a "cop". In his affidavit Mr. James states that in

*31

his opinion the Applicant would have had a difficult time obtaining an acquittal due to the facts of the case. This includes the statements of the officers involved and the tape including the statement of the Applicant. He states that one of the eye witnesses stated that they saw the Applicant lung at an officer with a knife (which is the crux of the indictment). He also was concerned with the fact that if the Applicant took the stand the State could use his prior felony conviction to impeach him. He states that the Applicant made the decision to take the 5 year plea bargain because he knew that a jury verdict would place him in prison far longer than the minimum which he received. The Court finds that the Applicant decided to plea due to the facts of the case and because of the fact that the State could have used his prior conviction to impeach him. There was no unfair coercion by his counsel.

CONCLUSIONS OF LAW

  1. In Ground One, the Applicant makes factual claims about his trial attorney that if true would most likely constitute ineffective assistance of counsel. However, the Court finds these factual allegations to be false, therefore the Court does not have to make any conclusions of law as to these allegations.
  2. The same points made in Ground One apply to Ground Two.
  3. In Ground Three, the Applicant claims that his attorney should have appealed the trial Court's decision denying his motion to suppress. As mentioned in the findings the attorney could not appeal the Court's ruling because it was part of the plea bargain that the Applicant was giving up his right to appeal all issues. Therefore there was no ineffectiveness of counsel.
  4. In Ground Four, the same points made in Grounds One and Two apply to Ground Four.

A copy of this order shall be furnished to the Honorable Nicole Lostracco, District Attorney for the 145 th Judicial District Court and the Applicant, Kevin Lee Brittain, TDCJ #1915233, Larry Gist Unit, 3295 FM 3514, Beaumont, TX 77705. Signed and entered this the Ω day of February, 2015.

DISTRICT JUDGE

*32

NO. F12-19562-A

STATE OF TEXAS

§

OF

KEVIN LEE BRITTAIN

§

IN THE 145 TH DISTRICT COURT § OF § § NACOGDOCHES COUNTY, TEXAS

AFFIDAVIT

My name is Tim James, I am an attorney in Nacogdoches, Texas. I am a Board Certified criminal defense lawyer and I have been practicing for 45 years. I am making this affidavit freely and voluntarily and am stating as follows:

  1. I took this case pro bono) out of respect for Kevin Brittain's family. From the earliest time, I informed him that he had significant exposure because of the fact that he did have a knife and he was recorded after his arrest at the patrol car telling the arresting officer that when the officer pulls a gun on him he will pull his knife on the officer. He then apologized to the officer. I was as surfin my monshortive question. Why would you be in the first case that the witness statements, that either the witnesses did not see the actual confrontation with the knife or did not agree with Mr. Brittain's version that he only threw the knife in a flower bed and that it had opened accidentally as he was pulling out. One witness even stated that Mr. Brittain pulled the knife out and lunged at the Deputy. We reviewed the videotape and based on the tape and the witness statements, we again emphasized to Mr. Brittain that this was a very serious case. I've been slump the wreath, he, and he would not

  2. We negotiated the State's offer from 15 years down to 5 years, which was the minimum for an enhanced Assault on a Public Servant case. We relayed this offer to Mr. Brittain several months before his plea and continued to meet with him and discuss the case.

*33

  1. Mr. Brittain had ample time to talk with any other lawyer and we in fact encouraged him to do so, to see if anyone else had any ideas that would be of benefit. I do not know whether he spoke with anyone else, but there were no other alternatives other than to try his case to a jury. We set this case for a Motion to Suppress. The incriminating film containing the confession, was the main evidence. The Motion was overruled by the judge and the case was then set on the jury trial docket. It was then up to Mr. Brittain as to whether he wished to go to a Jury trial. He continued to ask us our opinion and we continued to tell him that he was probably going to lose the case based on the statements contained in the tape and the testimony of the two Deputy sheriffs and the adverse eye witness. We also explained this to his family.

4 . Mr. Brittain's father was not an investigator for the District Attorney's office and he had not in previous years detained either Judge Cox or District Attorney Nicole LoStracco. This allegation was never made to us by Kevin Brittain and was never presented by him as any grounds supporting any request for a Change of Venue or Motion to Recuse. Such conversation never took place, the facts never took place, and even had it occurred, there were no grounds for a Change of Venue or a Motion to Recuse the Judge. 5. After the adverse ruling on the Motion to Suppress, the next step in the case would be the trial of the case. A Motion to Suppress cannot be appealed by the defendant before trial, but must be carried along through the trial and made a part of any subsequent appeal if there is an adverse verdict at trial. 6. In evaluating the case, it was obvious after investigation, after reports, after extensive work, (all of which is reflected in our file) that Mr. Brittain would have a very difficult time obtaining an acquittal from a Jury. This was based on the facts of the case, not on the fact that he had a prior conviction or that the person assaulted was a policeman. Those factors would probably play into some of the decision-making by a jury, but in a case of this nature, the big dilemma would be whether or not Mr. Brittain would choose to testify because by doing so

*34 his prior conviction would be placed in evidence before the jury. It would be naïve to assume a jury would not consider that he was a prior convict and that the person assaulted was a peace officer with no prior criminal background. Kevin Brittain's decision to plead guilty was based on the fact that he understood a jury verdict would probably place him in prison for a very substantial amount of time and almost certainly would be far more than the offer that was negotiated at the minimum limit. 7. All efforts, investigations, and strategies were done on Mr. Brittain's behalf. He received excellent representation and a thorough investigation and evaluation of his case. It was his decision based on our mutual analysis of the case to accept the plea and to avoid exposure to a jury, which would have surely sentenced him to substantially more time in prison.

SWORN TO AND SUBSCRIBED before me, the undersigned authority, on this the YTN t day of FEERWAR 𝒴 2015.

*35 Cause No. F1219502-A (I)

  1. The Texas Constitution Provides that,
  2. the people shall be secure in their persons,
  3. Papers and Assesions, from Allanverso
  4. Able Seizures or Searches, and Movement
  5. to Search any place, or to seize any person
  6. orthing, shall issue without desceibing
  7. them as were as may be, nor without
  8. probable cause, supported by or athem-
  9. ation. Tex. Const., Act I, §9.
  10. "False Recess" "Presentless Recess"
  11. Aetitioner asserets or contends that upon
  12. the arrival of other Mo landers at the home
  13. of Ms. Janice Louders' ager and Kevin Seithin,
  14. Other Mo landers visited the right of Kevin
  15. Seithin according to Tex. Const. Act. I, §9. when
  16. other Mo landers' did not identify himself,
  17. nor did Mo lander state his reason for
  18. being there. He came straight at Kevin Seithin
  19. ceddeing him to go and stand by his patient
  20. Car. The objective test in a consensual encounter
  21. is whether a Reasonable person would thank
  22. that hewere free to go. The following are suga-
  23. actions for the law enforcement officer to estab-
  24. his a consensual encounter:

Ane (1) δ ∫ ( 9 )

*36

  1. Constitutional Law, The governments actual
  2. or effective acquisition of private property
  3. either by ousting the owner or by destroyinging
  4. the property or severely impairing its utility.
  5. There is a taking of property when government
  6. action directly interteres with or substantially
  7. disturbs the owners use and enjoyment of
  8. the property. Also termed constitutional taking.
  9. The IETPQ Amendment, states that, No 10. Person shall be denied the right to be secure
  10. in their persons, houses, papers and effects,
  11. against unreasonable searches and seizures,
  12. shall not be violated, and no whenents shall
  13. issue, but upon probable cause, supported
  14. by both or affirmation, and particularly desueib.
  15. in the place to be searched, and the persons
  16. or things to be seized. Tex. Const. Aet. 1,59
  17. There was in fact a illegal search of seizure
  18. at the home of Kevin &; Janice. see Kaupp V .
  19. Texas 539 U.S. 629 [41948-1949]. A seizure of the
  20. person within the meaning of the fourth and
  21. Fourteenth Amendment s ocues when, taking
  22. into account all of the circumstances surrounding
  23. the encounter, the police conduct would have
  24. communicated to a reasonable person that he- Page (2)(4)

*37

  1. WAS NOT AT liberty to ignore the police presence
  2. AND go about his business. Plovidn V. Bostick
  3. 501 U.S. 429, 437, III S.ct. 2382,115 L.Ed. 2d 389(1991)
  4. (quoting Michigan V. Chestkenut, 486 U.S. 567,569 , 5. 108 S.ct. 1975,100 L.Ed. 2 d 565 . This test is deeived
  5. From Justic stewnets opinion in United States
  6. V. Mendenhall, 446 U.S. 544,100 S.ct. 1870,64 L.Ed.

8 2d 497. SEE: (Alibewin V. Hodnei D., 499 U.S. 621, 9. 627-628, III S.ct. 1547, 113 L.Ed. 2 d 690 . Which 10. gave several [E]xamples of ciecumstances 11. That might indicate a seizure, EWEN wheeE 12. the person did not attempt to leave, including 13. "The Theatering presence of the officece 14. officers, the display of a weapon by an office" 15. Some physical touching of the person of the 16. citizen, or the use of language or tone of use 17. indicating that compliance with the officee's 18. request might be compelled Mendenhall 19. supra, at 354,100 S.ct. 1870. Retitione contends 20. and assets that the police office [Mlender] 21. Investigative procedure was so qualitatively and 22. quantitatively that it became so intensive; 23. that, it became disrespectful to Attitiones lights of 24. freedom of movement, and privacy interests -

Thive ( 3 ) ε 0 2 ( 4 )

*38

  1. As to teipger the full protection of the tweth
  2. and toueteenth Amendments). It cannot
  3. Seriously be suggested that when the deteclives
  4. began to order Petiticnee, a reasonable person
  5. in his situation would have thought he was
  6. standing in his tewit yad as a matter
  7. of choice, listening to office Mctanates
  8. invesigative convies sation, and teet to
  9. change his minet and go home to in the
  10. heuse at any time... See, Hays, supen, at
  11. 815 − 846 , 1053 , c t , 1693 . A. Twettg the Resisture (II) "Weougful use of Judicial Pences. 13.
  12. IPT here is a false Interest claim, changes the 15. that claim couke the time of detention up until 16. Issuance of peocess oe neenign ment, but not 17. more. From that point on, any damages 18. Recoverable must be base on a Malicurs 19. PROsECTION claim and on the weougful use 20. of Judicial Decess rather than detention 21. itself. See: Keeton, Super, 8119 , at 888 ; 8 speiser, 22. Syden, § 28.15 at 30 . See: Albeight V. Olive, sio 23. U.S.266-275,119 S.Ct. 807.
  13. Petiticnee Asceet and constents that his ATtoney 25. Tim James did in fact reude Inteffective Resisture 26. of Counsel.

Pine ( 4 ) 2 ( 4 )

*39 "Criminal Law § 44.4 Counsels duties"

  1. In representing a criminal defendant,
  2. Counsel owes the client a duty of loyalty,
  3. A duty to avoid constricts of interest, a duty
  4. to advocate the defendant's cause, a duty
  5. to consult with the defendant / Petitioner on
  6. Important decisions / matters, a duty to keep
  7. defendant informed of important developments
  8. in the course of the persecution, and a duty
  9. to being to beware such skill and Knowledge as
  10. will reindee the trial a reliable adverseial
  11. testing process.

12 "Counsels Investigations"

  1. Inguiey into criminal defense, counsel's
  2. conversations with the defendant may be ceitical
  3. to a people assessment of counsel's investigation
  4. decisions, since when the facts that Support a
  5. certain potential lives of defense are generally
  6. known to Counsel, Because of what the defendant's
  7. Petitioner has said: "Counsels—peejudice"
  8. The test for prejudice resulting from the
  9. I wotfectiveness of criminal defense counsel regula
  10. the defendant to show that there is a reasonable
  11. probability that, but the counsel's unpertens-
  12. local states, the result of the peoceding
  13. would have been different,

Pace ( 5 ) ∤ ( 4 )

*40

  1. See: Ex-paete Wilson, 724 Sw. 2d 72, 73.
  2. A defendant's election to plead guilty
  3. We Nolo contendere 1 Mo bono, when baseupon
  4. Exeoneous Advice of counsel is done Voluntarely
  5. And Knowingly, On review of the record,
  6. The coust found that the state coust took
  7. No remedial action atthou gh it had actual
  8. Knowledge that Fstitioner had received
  9. Constitutionally ineffective assistance of

  10. Counsel as it is evidence from the cousts

  11. decision and out come.

  12. Fstitioners assaets and contends that
  13. The criminal justice system has so geosely
  14. Mathinstioned that the states subsequent
  15. Impeisonment of the defendant is a violation
  16. of due process. U.S. Const. Amend. XIV state
  17. action is present, not because a state
  18. official Knew of should have known the past
  19. icutures of the unthinness but because the
  20. System has failed. See: CantrellV. Alabama,
  21. 546 F.2d 652,653.
  22. Fstitioner Admits that his attorney Tim
  23. Times did do the necessary investigatiou ion
  24. On the case to prowe Fstitioners invocenes.
  25. However, Counsel failed to expeesent the-

Ate (6) ∅ ∫ ( 4 )

*41

  1. Evidence collected toward the Fettitioners.
  2. innocence. Which cause Fettitioner Collateral.
  3. Consequences. The State Actions are present.
  4. Not because the whole peocediny is fundament.
  5. Ally un thic" but eathes because a state official
  6. Riew or should have known of the "pneticulnes
  7. of the untrueness." Id. The language of fite-
  8. gerald v. Estelle, super, quoted in Cantrell
  9. V. Alabama, super, concerning the sixth Amend.
  10. denial of assistance of counsel is to find
  11. state involvement in retained or couet appointed
  12. counsels conduct which is adjudged to
  13. be less than reasonably effective. Therefore
  14. ifthe teial judge or the prosecutor can be
  15. shown to have actually known that apnet
  16. icuiber detendant is deceiving incompetent
  17. representation and takes no remedial
  18. Action, the state action requirement is sat.
  19. istied. If they directly participate in the
  20. incompetency, it is even so. It is abundantly
  21. cleve that the county couet of Macogdoches, in.
  22. had actual Knowledge[**] that petitiones
  23. was receiving incompetent representation
  24. And took no remedial action. see: Cantrell,
  25. Super, 546 F. 2 d at 654.

Pase (1)(2)(3)

*42

  1. *Petitionee Aspects and contends that his 2. Counsel did not ask the necessary questions 3. dueing Voie dice of the examination of 4. the witnesses, Also, ATIENEY Tim 5. James did fail to act for the safety of 6. the outcome of the Petitionees Rights 7. by not questioning the witnesses the 8. the Defendant Kevin Coitman in a motion for 9. discovery hereing which is the Petitionees 10. Rights to the Process of Law. That would have 11. conducted a legal proceeding to established 12. rules and principles for the protection 13. and enforcement of private rights 14. including notice and the right to série 15. hereing before a tribunal with the power to 16. decide the case. Petitionee has all of the evidence 17. to pence his innocentess on the false charge 18. that the Petitionee is presently doing time 19. for. which did in fact come from Petitionee: 20. counselor LTim Jamesl, This leaves the 21. Petitionee the to believe that the challenged 22. conduct was so out a agedus, that no cam. 23. petent atberey would have engaged in it 24. See: Goodspeed VS. state, 187.S.w. 3d.390, 25.392, (Tex Crim, App.2005).

*43 "Due Process of Law"

  1. Due course, as used in the state constitutional
  2. provision that no citizen of this state shall
  3. be depeived of life, liberty, property... except
  4. by the due course of the law of the land is
  5. virtually the same as due processes, as used
  6. in the federal constitution U.S.C.A. Const.
  7. Amend M. Veenonis Ann. Texas Const. Aet. 1819.
  8. Traenot Appraisal Dist. V. Batewny Center Associates.
  9. Let 34 S.w. 3d 712.
  10. The actions of office Motandee violated
  11. the constitutional and statutory rights
  12. Of the Petition, undee the 4th 5th 6th 11th 12th 13th 14th 15th 16th 17th 18th 19th 20th 21th 22th 23th 24th 25th 26th 27th 28th 29th 30th 31th 32th 33th 34th 35th 36th 37th 38th 39th 40th 41th 42th 43th 44th 45th 46th 47th 48th 49th 50th 51th 52th 53th 54th 55th 56th 57th 58th 59th 60th 61th 62th 63th 64th 65th 66th 67th 68th 69th 70th 71th 72th 73th 74th 75th 76th 77th 78th 79th 80th 81th 82th 83th 84th 85th 86th 87th 88th 89th 90th 91th 92th 93th 94th 95th 96th 97th 98th 99th 100th 101st 102th 103th 104th 105th 106th 107th 108th 109th 110th 111th 112th 113th 114th 115th 116th 117th 118th 119th 120th 121st 122th 123th 124th 125th 126th 127th 128th 129th 130th 131st 132th 133th 134th 135th 136th 137th 138th 139th 140th 141st 142th 143th 144th 145th 146th 147th 148th 149th 150th 151st 152th 153th 154th 155th 156th 157th 158th 159th 160th 161st 162th 163th 164th 165th 166th 167th 168th 169th 170th 171st 172th 173th 174th 175th 176th 177th 178th 179th 180th 181st 182th 183th 184th 185th 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