Case Information

*1 Dear Clerk:

Sir, I would highly appreciate your kindness if you would please present this correspondence to the Honorable Court Judge.

Your appreciation is highly appreciated that you.

However, I am sorry about the handwriting but I have a injury hand and waiting to have surgery.

Thank you Kindly,

Sincerely, Lovely,

RECEIVED IN COURT OF CRIMINAL APPEALS

MAY 14 2015

Abel Acosta, Clerk

*2 Lowell Quincy Green AKA Lowell DdLincy Green Coffied Unit 2661 Fm 2054 Tennessee Cotooy, TX.75884 Re: Tr. Ct. No. 2012-790-C2 WK-82,981-03 To This Honorable court of Criminal appeal 5

comes now, Applicant Lowell Quincy Green in the above mentioned cause number above. respectfully pray that this Honorable Court will please grant review of Applicant II. 07 Habers corpus which this Honorable court denied without written order on the findings of the trial court without a hearing on 4-1-2015.

Applicant contends that the trial court finding's were vague and did not address allegations of applicant claims which is found to true would grant relief. Applicant contention is a fit and proper subject for this court to review under post conviction habers corpus jurisdiction.

Applicant contend that he forward to the 54th District Criminal Court Honorable Judge matt Johnson [material facts] supporting applicant claims along with [exhibits] to support[fact] if found true would entitle applicant to relief.

Applicant is unable to provide this Honorable court with additional copy's of the transcript and exhibit's. Applicant

*3 pray this Honorable Court by its power obtain such document's from the 54th District Court Judge Honorable matt Johnson, with all due respects.

Applicant pray this Honorable Court allow applicant to proceed and make refences to material fact, that if proven will entitle him relief. If so granted, applicant will proceed in chronologically order.

GRounO one: Applicant complain of Prosecutor misconduct whereas, applicant was arrested for the offense. Aggravated Robbery with a deadly weapon, on march 24, 2012, however, there was no weapon recover at the scene of arrest.

On march 26, 2012 applicant girlfriend did in [fact]contact Robbery Division Detective Manual Chavez and turn over a 202 BB handgun. (RR Vol. 5, Page 42, Line 7-25), (RR Vol. 5, Page 43, Line 1-25), (RR Vol. 5, Page 44, Line 1-25), (RR Vol. 5, Page 45, Line 1-4); See (EXHIBIT'S # 2,3,4,5).

Applicant filed a motion for Discovery order on July 30, 2012 in good faith requesting the state to turn over any and all material evidence to the defense. However, the state turned over applicant girlfriend Kimberly Bitterman statement (EXHIBIT 3 ). However, the state failed to [disclose] the [CO 2 BB handgun] in compliance with the Discovery order. There is no motion granting the state [Suppress] the [CO 2 BB handgun].

There is no [Suppression] hearing on record, in the 54th Criminal District Court with a [Ruling] from Hon. Matt Johnson.

May 13, 2013 Applicant proceed to trial by trier of fact [Jury]. Prosecution informs the jury that law enforce-

*4 ment recover a weapon but he knows it was a firearm. (RR vol. 3, Page II4, Lines 10-25) (Page II5, Line 1-4, II-24) see (Page 154, Line 5-25) (Page 155, Line 21-25) and (Page 156, Line 1-15), (Page 158, Line 10).

This was a deception of the jury. [FACT] law enforcement recovered a [CO2 BB handgun] a [B8 gun] is not a deadly weapon, per se. Lee v. State, 51 S.w. 3d 365 (Tex. App.-Austin 2001) at [21] also Mr. Calvin S. Story Jr. Expert Forensic Firearm Examiner with the Austin Police Dept. [FACT] Police report's are generally not exhibited to the defendant prior to the officer taking the stand, however, fact's reflect that the prosecutor actively or negligently suppressed or failed to disclose evidence which may be material to the defense is reversible error. See (Jenck Act); see (Exhibit's # 2, 3, 4, 5) these police report are [FACTS] that a [CO2 BB HANDGUN] was recovered, however, that [CO2 BB HANOGUN] was not [DISCLOSE] that means the [CO2 BB HANDGUN] was [SUPPRESS]. Therefore, the 54th district Hon. math Johnson fact finding is in error. Applicant provided copies of [FACT] to the 54th count. The State alleged the [CO2 BB HAND GUN] in the Government [In Olctment] therefore, the [CO2 BB HANOGUN] was material. KyleS V. whitley, 514 U.S.419,433. citing BankS V. Dretke, 540 U.S. 668,675 "The court observed that one can hardly be confident that [defendant] received a fair trial, given the jury's ignorance of the [withheld] information." [FACT] Applicant was denied due process]. Applicant reallege and incorporate the FACT above].

*5 Grouno. Two: Trial Counsel failed to conduct a formal discovery of the (undisclosed) material evidence. The prosecution tendered [Kimberly Bitterman] statement however, the statement was in [Fact] germane to the [Co 2 BB HANDGUN]. Trial Counsel failed to conduct a formal discovery was deficient performance. Kimmelman v. Morrison, 447 U.S. 369, "The Supreme Court concluded however, that attorney's failure to obtain discovery of the evidence could not be explained as a reasonable start e.gic decision, but reflects a "starkling ignorance" of law, and placed his conduct outside of the prevailing profes. sional norms. Strickland v. Washington, 444 U.S. 6 98(1984).

Grouno THREE: Trial counsel failed to challenge bias venire person (RR Vol. 2, Page 135, Line 10, 15-16). Trial counsel failed to give venireperson the court instruction before challenging for cause (RR Vol. 2, Page 132, Line 1-20) See Art. 35.16 Vernon's Ann.Tex. Cr. Proc. LBJ. Prosecutor response (RR Vol. 2, Page 181, Line 20-25). The trial court fact finding is in error. It is a [Fact] found in the record.

Grouno four: Trial Counsel failed to object to an unquthor 12 ed verdict and void Judgement. And the unauthorized sentence was 'Stacked'on top of a prior conviction (RR Vol. 5 Page 97, Line 16-25), (Page 98, Line 1-25). Applicant will show [Facts] that he was denied a fair trial

*6 and the verdict is Unauthorize. The trial court fact finding and conclusion is in error. Applicant Pray that this Honorable Court use it Power to Administer Justice in Accompanse with the law...

Analysis [Fact] Court Charge: To the [Jury] (RR. Vol. 3, Page 137, Line 6-23) (Page 139, Line 1-25). [Fact] State Argument: (RR Vol. 3, Page 159, Line 9-II) (Page 159, Line 12-19). "The prosecutor specifically expound on a firearm." [Fact] Jury verdict: (RR Vol. 3, Page 163, Line 5-21) The jury verdict do not express firearm or bb gun, however, it would be nonsencial to say "we the jury find the defendant guilty of Aggravated Robbery with a deadly weapon Firearm or BB handgun." The [Jury] made no finding on a deadly weapon. [Fact] Court Charge: Second main court charge to the jury (RR Vol. 5, Page 67, Line 10-23) (Page 93, Line 7-29) "The jury, having found the defendant, Lowell auincy Granguilly of the offense of Aggravated Robbery, as alleged in the indictment, do further find beyond a reasonable doubt that the allegations with respect to prior convictions in the Enhancement Allegations and Habituel Allegation to be true. "THE JURY DID NOT EXPRESS A FNDING ON A DEADLY WEARN TO BE TRUE..."

*7 [FACT] JUPOMENT OF THE JURY: Ending on deadly weapon N/A, however, this means "NON-APPLIABLE."

The trial court did not address these allegations because these allegations are [FACTS] found in the [STATEMENT OF FACTS] support by [EXHIBIT'S] How the trial court came to the conclusion "DENIED" Habeas relief based on the trial court's facts findings.

Applicant [ FACTS] are [TRUE] and should be entitled to [RELIEF]... vacate Judgment dismisses with prejudice:

However, the state response was citing Maldonado, 698 S.W. 2d 114 (1989). I disagree, whereas, my case is distinguish. Applicant contend that this not trial charge error but in fact "judicial omission" based on reasoning and sound determination, whereas, the jury "omitting" the finding on the issue of deadly weapon. They was given a choice firearm or bb handgun, they specified "neither."

In Maldonado, applicant was indicted for the offense of A99 ravated Robbery by use and exhibition of a deadly weapon, however, he was found guilty by the jury. Maldonado complained of charge authorise a error improperly instructed for an offense other than a99 ravated robbery.

The court of criminal Appeals concluded that Maldonado "utterly fails to allege facts, which, if true, entitle the applicant to collateral relief. However, the court dismissed without prejudice. This court gave Maldonado the opportunity to replead and support the allegation.

(Please see other side)

*8 With adequate reasoning, argument and bestimonial and recorded evidence which illus brates the error so in. fected the trial process as to deny him a fair and impartial trial.

Applicant contend that he has put more than the court asked maldumada to replead, whereas, applicant Case at bar 2012-709-C2 has presented [STATEMENT OF FACTS] to the COURT which attached to 11.07 habess corPus. Applicant attached [ Police REPORTS], [WITNESS, STATEMENT, [TRIAL CHARGES To THE JURY], [INDICTMENT] and [VERDICT].

No Affirmative finding expressed in the judgment, however, applicant was found guilty of aggravated robbery and sentence imposed at life, imposition 42.12839, this in fact unconstitutional due process, whereas, applicant must serve so calendar year before becoming eligible for parole consideration, absent an affirmative finding enter in the judgment, this not legislative intent, Polk v. state. Applicant contend a nunc pro tunc can not correct, "judical omission" or "judicial error" this not a "clerical error" in nature. See Poe v. state, in Poe it allège (gun) Poe was found guilty, however, the judgment expressed N/A. A nunc pro tunc was proper because indictment allègd (gun). whereas, my indictment allège[Firearm or 66 handgun]. Nunc Pro Tunc can not be used to put what the court think should have happen in the proceedings. ResUESTED RELief as REOUEST IN HABEAS CORPUS IN REFERENCE TO CASE 2012-709-C2