Case Information

*1 767-15

ELMO FORTENABERRY

AM CASE NO. 11-15-00077-CA

STATE AND TEXAS

TIIAL COURT CASE NO. CR. 43001

COURT OF ORIGINAL APPEALS

JUN 26, 2015

PETI TIGU FOL O. SEECTIONARY REVISU

Abel Acosta, Clerk

ABEL Old NOT FICL AN APPEAL HIS SELF BECAGGONF OF ORIGINAL APPEALS

BEEY MANLY ON HIS ROYGS AT LACK OF PERFORMANCE, JUN 26, 2015

ADEL Acosta, Clerk

PERSONS V. STARE 771 SUS 2A 195 (6999)

DEPUTY E. GONCEL ACTIVY, "IN A BRIDGE OF EARLY" OUTSIDE

The COLOF OF LAW. HE WASHINGTON THE EACH AND KILD OF

EELONY AND HE HAD NO WARCAUT. I TERMINATED THE EACONY OF

WHEN I LOT HIM NO T WAS NOT QUIAG TO TALK TO HIM I WANTED

SHEIFF PRINTERS, YOU WILL FICD THIS ON DEPUTY REPORT MAKED

(EXHIBITS, E, F) Keep in mind WE AIC ON HITAT PROPERTY AND

A HITAT DING, O. DEMOND AND MEN THING BENN HITAT.

HOW LET'S BING, IN I AMENDMENT FREO SMOCEL MY LARQUADE

WAS BAD. BECKUS I HAD BEEN DERIVED A NOTES CONSTITUTION

AL RIGHT IY TR EQUAL DISTECTION BY LAW. TERMINAT EACONYTES

DEPUTY NOW OUT SIDE COLDINGE LAW. Y TR AMENDMENT

The right of People TO BE SECURING THE SEGUE IN THEE PERSONS, ANGES, PAPERS AND EFFECTS, AGAINST WARRASONABL

SERCHS AND SEIZURES, This MEANS HITAT PROPERTY

DINGES, YAKES, ROYERS, AND GHEER, TEAUY EULAI WEDDIC

The right of People to be secure in these persons,

*2 Seizures The Fourth Amendment also Protects Against unreasonabl government Seizure of Person's and property. The Fourth Amend. only applies to government Actions that Terminate freedom of movement. Through means intentionally applied Seizure of A Person occurs when a reasonable person would not flee. Free to leave decline. The officers request of otherwise ferminat. The Encounter. The Court must take into account all of the Circumstances Surrounding the Encounter. An Encounter with an officer does not constitute a seizure unless the officer restrains. The individuals. Liberty By means of Physical Force or Show of Authority to which The individual submits. U.S. V. Smith 594 F. 3d. 538-39 (6thcic 2010) No seizure when defendant tried repeatedly to push past police in HALLWAY. I was standing on the side of the Drive by a gate. with Deputy E. Gomez Came At me, see (Exhibit E.F)Deputy Report. Since He says I pushed Him away He should not have been trying to put His hands on me. I Had already Declined, Terminated the Encounter. Where is a warrant there is no felone and no evidence being destroyed, I had and HAVENOT Broken AnyLaws, I CAll ed making a complaint or Actuly my wife CAlled First They Told Her They Could no Do Any things There was no one hurt And no property DeSTroyed. I Get mad

*3 (3)

Whiw we qot Home I got a whisky DoTLe, at Home, about 30 minits Lotter is whiw I started. Or. Them we can's the Law. Dus not say some are. Has to get out of the, or property destroyed before they Do. There Job. I Had not broken any law. Though my consist'tit, owal Right's Had been violated by sheriff's office. Go To Renal Code. sec. 39.01 Definitions. (1) "Aw relating to a public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly; (2) imposes a duty on the public servant. (There Job seve and protect, not call the mayor ambulance or arecker to keep the's. This, is from Happow, 'aq is there Job.) (3) governs the conduct of the public servant; I would say this means not atTacking a person on there or property with out good canse. And for shue not ticking them. Though a qot that Hocdes Horses in a field or pin horses using 1100 and 1300 pounds so for me to go. Thrugh that 600. Like He sAis I was Hit Excessively Hard, A 1300 pound Horse pushing on that quite an it. Don't open. Excessiv force is that conduct for policy to follow. How Let's Go back to what He states His REASON For Being These was. To ADvise Right's on?

*4 well THAT is good but by. yall's LAW He should HAVE been there to TAKO A complaint, And ALL This Come to The side of the road so we can'talk never Happened. If I WAS in the middle of the Road How after He CANC AT me Did I G IADA GAIT. I WAS AT The GAT while He Got out of His Car parked in the middle of the road coming at me yelling yout under chest for AI. Very little of what E. Go me I STATES in His Report is FACT of WHAT Happend, E. Gomez Sais He is coming To Advise Rights He pulled in To my Parking Wren Then Backed BACK out FACiary His Car at me coming Down Fireeline. If He WAS There peacfully why Did He Not Just wait for me to get to Him. NOW YALL'S LAW COULCede SELF YULOIS 24 Hour TOLL Free Number (a) The department shall provide a 24 hour TOLLfree Telephone number for use by the public in reporting traffic Offenses, including driving while inTEXicated, suspected criminal activity, and traffic accidents and other Emergencies, I would SAY 911 Emergencies and DARGCrs to PUBL:C I WAS NOT VIOLATING The LAW. (b) Once Gerving a report of ane offense, the department shall contract The LAW Enforcement Agency of the Sur/sdict iew where The reported suspected driver or incident was observed at SAAL DISDATCH department officers. (You No To Find The 18 whetler be for He Dose Run over 500 more and kilk or Do seared HARm To PecS00 and or pro porty, "There JOB"!)

*5 You Code, sec. 411, 0195 , Public Complaint's They should Have Beem Coming to take a complaint not arrest me, like I said he attract me not me attack his sec. (Exh:ait 6,6) The should have Beef There to take A complaint not advise rights. They should have never Told me there was nothing they could be no Haran Had Deem Duser. (2) The department shall maintain a system to promptly and EFFiciently act on complaints. Filed with the department. The department shall maintain in formation about Parties to The complaint, The subject matter of the complaint, A summary of the result, of the review or investigation of the complaint, and it's disposition. (b) (c)

My lawyer should have Filed a notipn to D. 5 m : 55 under grounds. of lack of evidence no crim officier out side the law and his Report. STATES H. 5 ViOLAT. ONS TO me, the Did not Even have Atreo and Udep or said. Thay Did not Beefus it would not have shown any rowg by me. Sec. 39.03 official ompression A public servant acting under color of his office or employment committs an offense if he, (1) internationaly subject's A whether to mistreatment or to arrest, deTention, or lien That he knows is unwuchly (2) Iatentionally denies or impedes another in the exercise of todayed right. Ashiag For Help for me and others, Drinking at Home, Choking who I talk to with out a WWW/ART, telling me I have to,

*6

My lawyer accepted the states position that I committed the defence. Craig V. state 847 sw2d, 434 (1993) The July Decision would have been bisfirent iE my lawyer. Had nextacted the way we did at Trial, LiK I was Rony for complaining.

Day of Trial

Trial Held in 238th District Court, BUT The Indictment was for the 385th District Court, which they changed to the Day of Trial so the Court Could leave abattoT July for them. As a lawyer accepted it not making them follow the Law And Judici's procedure's Like Filling a motion for Traus Ee or get another Indictment for that court get 21.26 Order Traus Eeting cases. All Court's Have to have motion or order to Traus Ee. Even appeal Court allh, we are taking about District Court I am Just 5 hour in All Court have to follow the same rules see, tex BuEof Court Rule, 5 Traus Eers of Related Cases between the first and the Fourth Court of Appeal's (A) How is fixed (b) docket Traus Eered cases.

The clerk of the Court, without delay, should liver the indictment in All Cases Traus Eered, together with all the papers relating to Each Case, to the proper court of justice, as directed in the order of Traus Eer, and shall accompany Each Case with A Certified Copy of All The proceedings taken

*7 Therein in the district court, and with a bill of the costs that have accrued. Therein in the district court, the said costs shall be taxed in the court in which said cassies is tried, in the event of a conviction. The transexists from both preties, he will have been transferd with all other paper to 238 th district court along with a bill of cassis to this point. Act 33.02 to 6.2 Day for criminal backer. The case no. has to be on the backer for the court tried in at less 2 Day before trial to backer call in court. A vile 246 clerk to give notice of settings and all cases to defendant and attorneys. Rule 82 Determination of motion to transfer. No later than 7 days prior to hearing Day 9 of 416, concuerent Jurisdiction. First court to have indicated a complaint is to detain Jurisdiction, but both court's have to have indicated a complaint, (that's what the transfer. is about) under Act 21:28 version's C.C.P. G. Burdon of proof where a criminal case returned to the district court was tried in the county court, the burden was on the state to show the transfer. of the case. D. T. Forth V. State (Cr. 240 (904) 46 Tov.crim 424,80 5 W. 628 Criminal Law (4) (4) 24730,08 order of transfer. 2. TrangecipY and cert. E.icate in general.

*8

The record of the presentment of the indictment should be eentified to the court to which the cause is transferred as apart of the proceedings taken in the district court which is state 18797706212 transfect of indictment deannow is state (1897) 554192; Indictment presented to district of grand July: Estes is state (Caiapo 1899) 33 7061920, 28 541962 EXh:bit (G7 H) show which court Judgement was fixed in Decaus indictment was in that Court, EXh:bit (H) shows which court July was picked from They wanted me to have that survey IT Had Police Through out it. (As lawyer should have asked for contemnity ALSO m:dland told District Court of Appendix I Plce Bargand EXh:bit(G7 H) shew proof of July Trial. "I Had A biast July had fait in court act: on forme and my lawyer let it happen" All Court? HAVE to have motion as order to transfect,

III.

Indictment

First office out side Color of Law The indictment should have never been accepted I am not the one that did the MTACKing an aysulting second no legal predictment in court I was tried in the indictment was for 285th not 238th and no

Transfect should have been a motion to

*9 EN HANCEMENT my LAWYel Should HAYA WANT ONCE The EHANCEMENT with me but He did NOT ABOUT IN EAKIA. YS(A,C) IF He WOULd HAVE He WOULd HAVE NORE The DATE WAS RONY ON The CONVICTION EAK OFEAKIE ISY ALMOST 13 years 1991 and 2004. 2004 makes it Look Like I COULd MAILY STAY OUT OF TEUBL EAK 13 years where IT WAS REALY 23 years. EX PATE LILLY 656 SW. 2 d 490 (TeA. LIIM, MPA 1993) COURSEL WAS INEXECTIVE WHEE he did NOT CONSULT WITH defendant did not review prosecutors E2es had NOT Conducted AN INDEPENDANT INVESTIGATION, had NOT InTEXIVIENDED THE STATES WITHESS, AND HAD NOT FEVIEME THE ENHANCEMENT ALLEGATIONS.

My LAWYel REEUSED TO CUTME TEST. EY AND TOLD ME IF I TAY AD TO SAY ANY THING They WOULd FIND ME INCOMPUT AND HAVE THE TEST OF THE TICK WITH OUT ME THEY! "DU prabes VISUATION" ALSO DORITY U. STATE 781 SW. 2 d. 439 (1999) COULd NOT CIEAT MY ON COGENT defENsIVE THEORY Tell what realy HAPPANDS like WANT HE WAS REAL SAYING, when He WAS COHING at one while I WAS BY FIRCE. YOU Are UNDER ATEST EAF. IOWN COGNEt THEORY. HERMAN deZ U. STATE 943 SW. 2 d. 930 (1997) I COULd NOT PITECT MY SELF

*10 Did not File a motien for lesser included eference charge to be given to July. The July CAN NOT Dring charges on these one they HALL TO be Drought by court judge to July. AUT 37,09 lesser included eference ANAFFense is Alesse im aluded eferense if: (1) It is EStAKished by proof of the same or less than will the factS required to Establish the commission of the eFeme e charged (2) — (3) It didifFers from the eFferese charged only in the respect that Alesse cugapable mental state suffices to EStAblish it's commission ior (4) it COHSS.5TS of AN Attempt to commit the eFferse charged or an otherwise included eFferse, see, EXh:A:t (F) I marked Less charge Resisting Prest Sec 8,04 Intoxication (d) For purposes of this section Intoxication" means disturbance of mental or physical capacity resulting from the introduce. on of any substance into the body. sec.49,07 Intoxication ASgULT (A)A Person commits an eFferse if the person by accident or mistake; (5) 2. Elements 6. lessiaduded eFferse s ill Instruction

To have a Fair AN Impartial Tury determination Jury can not bring charges on these our. I would NOT Aecn comlifted of ASgult on public servant

*11

IT may LAwy would have been working for me and not the state I would not be in prisión For Doing what the LAW plavely allows at most All I would have been convicted of WAS Resisting AVEST, AND I don't NO How I could have been Avested for that even E. Gomes came at me not me at Him.

VII

Burden of Proof The Deputy saying His car did not have AUTd and vided is not proof, AUTd and vided is in the cars to stop racia profiling see these Articals at 2:132 LAWENForecomant RACIAL Profiling The AUtd and vided is there to protect them and the public, at 2:135 Audio and vided. At 2:132 Provision for funding for Equipment, though Texas Department of Public Safety to keep cops from vanging the public, and to prove which may HAVE NOT VIDLATED THE public's CONSTITUTIONAL RIGHTS Like E. Gomez did me, proof of this comes DEe paper work from the state not a Deputy that will SAY ANY Thing. I det If I had broke the LAW WISTED OF The Officer The Car would have Had AUtd and vided. Just like I no the two Cars that were there first need AUTd and vided. Out It would have shown D. Effect THAN His STATMEL

*12 to beckus He said when officers arrived I was steep combatiV and He had to have help wandeuEfriagme His Testi many was the only one that said I was violating the cawe IT's like one Deputy Toldme if my Dogs were Amucac Asian they would iC'll than my Dogs Havenot bothered any worse so He was Just making a forestic Threat to one of my Dogs or realurKids He De sived to be talked DAD to, then on the way to nos Aftle He hitme in the month that is whin I sTarted spitting Dood out of my mouth my lawyer even let the medical proof be the officers word NO Hospital repat or any medical Documcat. my lawyer let the say and Do what ever they wanted to know ever they wanted. Burdon of proof FALLS on the STATE AND NOT JUST TO SAY some thing is that way that Ant Proof. EX PART VAr elas, 45,5003d. 627 (TesCrim,AM, 2001) HABEAS related granted, DeFeuSe attoray was iNefectiv for Failing to request burden of proof or Li miting Ins- tructions regarding Evidence of DEEeAdAntS EXTRAuUS ACTS: AS presented by theSTATE. These was a reasonable probability the outcome would have deeAdiEfecent but for The artorways Act. 10 us. NO Testimony Corroborated ANd thing the officers said Art. 38.12 Two witness required The two witness TheSTATEHAd SA:d the EXACT ops:I aE E. Goma

*13

Which Testimony was True E. Govez or The Two Officer's That Testified to FACTS OF What They Never

VIII

My LAWYel Should HAVE Filed. A Motow on perjured Testimony AT Trill E. Gomez said Halest His Radio And could not call for Jack up, He also said I pulled Him to Ground By His EAY He also said He Had to Have Help Hand Cuffing me. And whin OFFICer Aried They Helped Cailan me down Decans I was steal being Combativ, And I Have Airedy Shown He was not Alling Uwder Color of Law He was the ogresser not me. That was on Page's 1-5 Perjured statements, Exhibit (D) Like 8. He said Public Rondway, Ariat maintained only marked country Road 97, for Emergency and mailing purposes Brown 5 iqn not green or Выish Green, Ariat Drive Arals Accuust Dead-ends into A Filed or pasture Just past mywhere we were. So, now 'Bota Officer!' said in Testimony That E. Gomez Called for Jack up And He Had me Hand Cuffed Whin They Aried And That is All no combativness. I think I mention This lot of StUE Uwder Burdon OF Proof. E. Gomes was his own profession witness And All The

*14 Proof They needed. He new what He was saying was. Now, the state and my attorney new what He was saying said what they had said about Police. Being credited with a man, they did not care they only wanted to connect me so I would stop trying to get the sheriff's department to do there to better the partment. I don't say that he was the best as a member to person or property not just mine before. The testimony E. Goncz gave and the deputy report were different to. See transcripts and deputy report see. The ERI story He gave in Report said what He said on sTand. And call for back up on Report and or sTand and kangcuff story in Red or stand as sTand as he said. Even in this period. There is questioning. Difference There. I never saw any of these. The offendavid, deputy report, indibictmen, in kancment pages. I'll I was in prison. (Eth:bit A, E, D)

Vernins c.c.P. art. 38.18 Per.Jury and Adgraviated Per. Jury.

The FALSITY OF The STATement assigned must be shown by Two Credible Witnesses, of one credible Witnesses этому Corroborated by other Evidence. We HAVE TWO WITNESS AND E. GONES. REPORT All The FACtors To Prove Per. Jured To sTAMOMy

*15 AT This poin MY LAWYN Should HAVE CAiled For DeFendAnd, SUDqie, DA., And Defenu Counuely, Confresce to Let The Sudge no There would be A MOTION ON PERTUY. He Did not He WAS WORking For STATE NOT TAYing TO Help me.

Under Act. 38.18 PERTUY and Aqquwaded perjury a"credible witness", as used in CCp. 1879 ACT. 746 on eand one who beiny competent to give evidence is worthy of belief, STUL UNDA ACT. 38.18 The Term "corroborated strongly by other Evidence" meant that this other evidence should come from another source than from the WITNESS who was to be corroborated. The witness to be corroborated could not be corroborated by proof of his own ACTs and declarations.

See, Transcripts, Deputy Report, defAdavid for His TestAmonay And Transcients For Testamony of other Two OFFICEs. E. Gom eZ could not be corroborated By Two OFFICEs or His own Declarations or By His ACTs. So The Transcripts, Deputy Report and defAdavid show proof of FALS Testamony By His OWn declaratiom And ACTS MUtCh Less the two OFFICEs That Testified

The STATE Traged To Help that is why They Did not bring the Aided And Vided out of E.Gom eZ's

*16 CAre IT would Have Shown A Completely Different Story To His Testamenty And sWORN AEPADAVid or ATLeAST THAT is WANT BAPER- PAVid is suppoT To Be I Believe And Even The Deputy Report is supost To Be A swormn Startmeut. art 38.18 Perjury And AGG, perjury Code C. 1 P.OC. 1879 art. 746 or the Substance These of should have been given in charge To the study, where The defendant had not confessed quit? In open covet. art 38.19 steel Where but one witness Testified To the Falsity of defendant's statement, It WAS Error To Refuse To instruct Thent if the study believed that such witness was not A Credibly witness They should Acquit. This is Right Meas And Now we Test, E. E. is a To The So CAllied Victom or plaint, E. STATS WITTMED, I Should Have Been AC Quited at First Trial art 38.18 Perjury And AGG Perjury To charge The Study in Felony Cases upon the Law Applicable To the case, whether asked or not, is under our Law, Addly I proposed imperatively upon the Trial Judge. The Trial being upon the plea effect, quit, and not upon certessiven In open covet, The omission of the Trial court To give in charge To The Study the Substance of the Abone stratony precision's WAS EFFOC. BYn.g. tAWYg. maSTATE

*17 Penal code Sec. 37.03 Approximed PeriUry (A) A Person commits an offense if he commits PeriUry aside Fined in section 37.02, and the FALSe STATMENT (B) is made during or incomnection with an offense proceding: And is material Sec. 37.02 PeriUry (A) A Person commits an offense if with intent to deceive and with Knowledge of the statement's meaning? (B) he makes a false statement under OATs or swears to the truth of a false statement previously made and the statement is required or authorized by Law to be made under OATs or

Testamoke of E, Gomez see Transcrip, Deputy Report and Affordand Radio HeLost and could not call for BACK up to make study Think He was in Real Harm, "Ear" Allied To Ground By Ear Just Really Being Handled By a 50 year old man with NO Self Defense Training AT ALL. Wenerer ASK or my lawyer never ASK about Self Defense or miscatory Training of E, Gomez, Every thing Dut By my Lawyer Had The STATE WAS Dut To Keep it Like The Officer WAS in SeUal Danger WhiWY WAS The oUre Being ATACKed and ASsulted

Exhibit (D) The FALSe STATement About The Road WAS PUEtUy To make it Loak Like They Did not need A WAYANT And HAD A Right to Tell me where to and How to Do study.

*18 And They Didnot Tharwas on lime 8, Now see Line 16 WITNess N/A OR NO B WITNess whin There WAS BwitNess Just NOT Dine ThAT WOULd Tell there EAbricated STATman To Hece them get me dodifeted By Grand JUy It wouldnot have belpT Them it would have HARMEd Them. I would BeT TE what is on line 18 w0C True even sober I could not Even do what They SAy I Did I only have A partiliRightsholdor I Had serquy on my rolorcUE 30 year ago. It would have made A difference If A Impartial Cury Had de third this sICEE. Just one case For now United STATS U. WALLACH 335 F.2d. 445,456 (999) see (1) Criminal Law I HAVE ANuCH nOKE TE YOU WANT IT, IVX EXTRAINS ALTS EXPART VAtelAS, 45343 d. 627 TEX CIIm App 2001 Limiting instructions regarding evidence of Defendants EXTRAINS ALTS, AS presented by STATE. EHN the but come would HAVE BeE N DIFING DUT For The Attorney's ACTIOM SEGALSO RULE 404(b) And Fed.RULE 006 (b) BeCANGE The used UNRJudicated Crimes to Prove Charictor

*19

The D.A. Even SA.'s THAT is why He is usiny than He SA'd this wile prove what is indoe ar His charicTory which is improper for state to make that situation. PLUSS OTHER'S Thay made, EATRANUS ACT'S NIE NOT ADMASSABLE TO PAVE CRAVICtor only Nothinay They Branght showed AS SULT AT ALL The EUSHAC Element.

I

Prepestion

He never reviewed The thing in prosecutors Eile's with me. Had not EnVesticated my side of the STory, I DRAught PictuIs The DAY OF TriAL Showing Hisat LARA Sige is what is SA'S NOT ROAD or DriWe it STATES DARly LARA FACT. He HAD NOTCONTACTed ANY WITNESS ON my BEHALE THAT WOULd HAVE TESTI Eied to HOWMEAY times The SICriEE DEPARTMEAT HAD REEUSed to Help me, with Kids Caiminal Teasparssing and Comitting Caiminal mistie, and hece Time I CAliEd CbinAL 7 neus AROUT 4 PITOULL DOES Kile ing Chickens Ducks Goats and mHeming my COW OQ as my son I Loved THAT DoQ Like A SONSTILL do. Ihey REEUSed to Do ThCE IOM AT ALL TO HELP me. And I CAUT OUH A GUN BUT THAT is De side The point The point is it is ThCEe Job To serve And protect Person's And ALL Property THAT mean's while the ReIsons HdAdS DCE Tied They HAVE A SHOYAR DUTTY.

*20 BACK TO PreprATION HAD NOT EMERVied STATE witness and He my LAWYel Helped The STATE DIS Credit my wife's Testimony. She HAS SEIZURS AND WAS ON STRESS medS And she never that our LAWYEL would try to TICK HIR AND ALDY. The WGATES in the two DictU'S were SFeET ABATT so she was TEST Thinking A Gout The VACINITY I WOULD HAVE WAVEN LET Her QAT UP Thare I'E TWOOD HAVE EVEN. ThAU GHT He WOULD Do Some Thing Like That. And NO EVIDENCE WAS PRESENTED ON my DEHATE LET'S START WITH, "Criminal Procedure" At T. 2 OII, MUNICIPAL PROSERUTION (D) It is the primary duty of a MUNICIPAL PROSECTION not To CONVICIT, but To See THAT JUSTICE is dONE.

The STATES ATT. ENSTED OF pickins up Both SETS OF pictures should have started looking at Conflict OF interest see. WOOD V. M. BORQUIA 450 SU. 241 (1981) The trial court is self. As a duty to inquire of APPREIENT CONFICIT'S OF RECORD, EXPecily WHIM CONUSSEL is Hired by DEEENDANT BUT PROTECTINY The STATE. ALSO WHCAT V. STATE 486 US. 153 (1988) I HAVE LEAFING my LAWYE is X STATE ATT.

*21 My lawyer while talking about me calling for Help Acting Like The LAW Don't Help them why should they help me now or less see. Transcripts. And Brewer VI. STATE 6495 W. 2d. 628 (1983) Counsel made dispersing comments Concretring my ACTOUS OF Calling For Help from police. OOWe Again If my lawyer would have help me not the state I would not be in this situation qQ DACH TO PREE 18, MAYL TOT EXTRADES ACTS. HCAY is all the case now. to Wardsudicated extraneous offenses RUTA VI. STATE 5225 W. 2 d. 517 (1975) Concreting opinion (TICA) Evidenced other crimes not on Tille for CudeVSTATE 5885 W. 2 d. 895 (Tex crim ABP 1979) Callaway VI. STATE 5445 W 2 d 440 (Tex crim ABP 1920) Bdyingrow VI.STATE 7385 W 2 d 704 (1985) they used these to make me cook like Au'sis person which in EACT SHAd broken no law's. The police HAd And Constitutional laws AT ThAT. And GoV cod's TO. EXPAIT VAielas 455 W 2 d 627 (Tex crim ABP 2001)

Confering with deErndant and prepair A deFense, independent in vesting of FACt's.

*22 EXPANt MAVEZ 505 SUZd 930 (Tex crim APD 1974) EXPANt Howard 591 SUZd, 906 (T.C.A. 1980) EXPANt YbarrA 629 SUZd, 943 (TE.A. 1982) EXPANt Lilly 656 SUZd 490 (T.C.A. 1983) EXPANt Abbarin 658 SUZd 604 (Tex crim APD 1983) STrickLandVi state 747 SUZd, 59 (Tex APD Texprk 1988) FAlur io Intervicw wittess both to prosention and defense. flores Vi state 576 SUZd 632 (Tex.crim.APD. 1978) Srepert Vi scott 2853d 1415 thcir 1994 EXPANt DuEfY 607 SUZd 507 (Tex.crim.APD. 1980) OUTt ex Vi state 716 SUZd 48 (T.C.A. 1986) If the lawyer would HAVE InterViled wittans, He would HAVE Bev ANle To Help then HAVE the GAMme TestANomy ThATS my LAvger BeCALG, He WAS For The state ADme.

Counsel must Adequatiy prepare the wittness; to Tect. EY at Triae that means more than 5 minet's in a Rome the DAY OF TriAl EXPACiAL, whin you AD the WITNES is OR mEdication, EXPANt GuzmON 730 SUZd 724 (TexCrim.APD. 1987) OR mEd's EXPANt DuEfY 607 SUZd 507 (1980)

*23 The Stickland Standard Applies to a Lland in electric assistance of counsel using undevarticle 1, 810 of the Texas Constrictor Hernandez V. state 726 5W2d 53 (Tex crimappig 8L) Defendant HAS shown This PLoSs and defendant has proved peepudice under the standard of Stickland where it is evident counsel had a conflict based on self interest He draught as case can extract for time of Total stickland $U_1$ washiugtion 466 us 669 ( 984 ) stickland $U_1$ state prejudice self interest monreel V. state 947 5W2d 559 (Tex crimapp 1997) Beets $U_2$ scott 65 F 3d, 1258 (5"cix.1995) 134 c.Ed. 2 d . ( 550 ( 1996 )

Cuy Lel V. Sullivan 446 us 335.1005 . c T. 1708 My counsel's error's weve so serious I could not Get a Fair Trial And Midland And Letting papal Have Fair There enemy I believe I have known my Trial who fondamintany in Fair from Start to Endish denying Even Due process, constrictionRigh $\%$ , Civic Righ is Even police benging me help Magar Duprocess Vidal ation 5 , The police outside Color of LAWY Midland HAVing A Trel in court that SURV suis them not Irmis Evy PerJury By state W. T. 1495 , Ineffectiv Council

*24 EvewLi'ke PepatyReport should HAvie Deen given to me AfTe E. comce Testitied see RDe Gt5 (A, B,C,D) And ALSO see Fed. Cumbroc. 18 &; 3500 (b,C,) this is All About ProDUCin A wITWesses STAPEmest in criminal cases like guce Gt5 (a) motion to Producs my Layeyer Didnot File He didnot want me to see. Also (b) Producisay entire statement (c) producing Redenced startuess (d) Recess to Examin I Did NOT STAWd A CAArecs

I AM Praying for YAL'S Help in This Bad sitration GoD $tr$ Kno's I WAS TUST TYying TO GOT the police Dpartant to Do the Job And I pray you All see I realy WAS NOT The aqgressel Hear I Pray you sec all the Error By my LAUye and the sizte, INALL you. S. 60 N Cene Fortenberty RATE 6 19 2015

*25

EH:O:T (A)

AFFIDAVIT OF PROBABLE CAUSE

STATE OF TEXAS

$\{\begin{array}{c}\text{'NTY OF MIDLAND}\hfill \end{array}$

UNDERSIGNED AFFIANT, BEING A PEACE OFFICER UNDER THE LAWS OF TEXAS AND BEING DUI

H MAKES THE FOLLOWING STATEMENT AND ACCUSATION:

'IS

'IS THE BELIEF OF AFFIANT, AND HE HEREBY CHARGES AND ACCUSES, THAT SAID SUSPECTED

DMMITTED THE FOLLOWING OFFENSE: alt On A Public Servant

FFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS, TO WT $1/04/13$ at approximately 1700 hrs I Deputy Eliss Gomez was dispatched to 6703 E.C.R 97 in reference to a advis ed that the complainant sounded intoxicated. Upon arrival I noticed a white male wearing blue overall's in the mid contact with the male who was identified as Elmo Fortenberry. I asked Elmo what was going on. As soon as I ask d "fuck you I want Sheriff Painter out here". I then told him first tell me whats going on. The male kept on yelling told Elmo to get out of the street and to come to the side of the street to talk about what was going on. Elmo refuse walked up to him and told him to calm down. Elmo then placed his hands on me and pushed me. At that point I gr ried to detain him. Elmo pushed away once again and then began striking me with his fist. At that time I grabbed a t and both of us fell down. On the ground Elmo tried to grab shold of my patrol issued taser and thats when I strike ace to get him off of me. At that point I called for more units to help me. Elmo then came at me again in a fighting managed to get shold of both his arms and finally placed him in handcuffs. Deputies then arived and assited me. 9 to calm down I did detect a strong odor of a alcoholic beverage emitting from his person. I then placed Elmo und: :bic Servant as well as Public Intoxication and resisting arrest detention. Elmo was also charged with Abusive 911 he was told not to call on 911 and to call on the non emergency number which he refused to do so. A copy of the c transported to Midland Memorial by Deputy Martinez for jail clearance. EOR.

SCRIBED AND SWORN TO BEFORE ME, THE UNDERSIGNED AUTHORITY, BY SAID AFFIANT ON TI

*26

EXHIBIT-(8)

ORDER RECIINDING AMENDED RESIDENCE AND REPORTING CONDITIONS

Date: December10, 1992 On the 11th day of $\frac{\text{September}}{}$ ., 1992 , the Court considered the defendant's application for permission to move and maintain $h$ is residence in Panner County $$ , and to have certain conditions of $h$ is probation amended in certain respects, it was ordered that such permission to change $h^{\text{is}}$ residence was and the same was granted, and the judgment of this Court rendered on the 7th day of $\frac{\text{October}}{}$ , 1991 , wherein said defendant was found guilty of the offense of Burglary of a Habitation and $h$ is punishment assessed at confinement in the Texas Department of Corrections for a term of ten (10) years, probated, was amended by changing conditions of probation ( 5 ) and ( 9 ).

Upon the defendant's application, it is hereby ordered that the amended conditions of probation ( 5 ) and ( 9 ) dated September 11, 1992 be rescinded and that the defendant will abide by the conditions of probation as heretofore granted on the $\frac{7\text{th}}{}$ day of $\frac{\text{October}}{}$ , 1991 .

SIGMED AND ENTERED this $$

*27

EXHIBITO

NO. 43001

THE STATE OF TEXAS V.

ELMO RAY FORTENBERRY JR.

IN THE DISTRICT COURT 385TH JUDICIAL DISTRICT MIDLAND COUNTY, TEXAS

NOTICE OF STATE'S INTENT TO ENHANCE PUNISHMENT FOR A FELONY OFFENSE UNDER SECTION 12.42 PENAL CODE BY PROOF OF A PRIOR FELONY CONVICTION

COMES NOW the State of Texas by and through her District Attorney and gives the Defendant notice under Section 12.42 Penal Code that the State intends to enhance the range of punishment applicable to the felony offense charged in this cause by proof that before the Defendant committed the primary offense charged in the indictment in the above entitled and numbered cause, the Defendant was previously convicted of the felony offense or offenses as follows:

Count 1 Paragraph 2 (Enhancement)

That before the commission of the offense of Retaliation charged in the indictment, the said Elmo Ray Fortenberry Jr. was convicted of the felony offense of Burglary of a Habitation on or about the ${29}^{\text{th}}$ of June 2004 pATe 40 kg in cause number 29723-C in the 251st District Court of Potter County, Texas.

Rule EV. 1 denc. 609.(B)

*28

$E{X}_{h_1\theta ·T}(D)$

3

Deputy Report for Incident 14-00167

Supplement

OPPENSE: Assault On A Public Servant MIDLAND COUNTY ENERIFF'S OFFICE P.O. Box 11287, 400 South Main

Midland, Texas 79701 $432-688-4600$ REPORT (Specify Information or Offense) Offense $Y_c\mid$

1. Complaint # $0.25\#14-0003$
2. Received By/Now

324/In Person 3. Offense (type)

Persons (Pelony) 4. Victim's Name (Firm's Name if Business), Address, Zip Code, Phone (Res. Bus.) State of Texas 400 S Main Midland TX 79702 $432-688-4600$ 5. Victim's Occupation

Law Enforcement 6. Date and Time Reported

January 04, 2014 at approximately 1707 hours 7. Date and Time Offense Occurred

January 04, 2014 at approximately 1707 hours A. Type of Premises Where Occurred

Public Roadway P.O. WAY 70 Ad WAY 9725 marked Fos EmuWgency 9. Location: Number, Street, Apt# A Ad MA#LL DOLOSAS ONLY

Midland, TX 79706 10. Person Reporting Offense- Race, Sex, Age, DOB, Phone# Residence-Business

Deputy S. Gomez Midland County Sheriff's Office $432-688-4600$ 11. Residence Address, Zip Code

400 S Main Midland, TX 79702 12. Name of Business, Address of Person Reporting Offense

Midland County Sheriff's Office 400 S Main Midland, TX 79702

1. Property Descriptions (Describe all property involved first)

*29

[lost, stolen, abandoned, found, etc] [LIST QUANTITY THEN VALUE OF EACH]

NONE

1. SUSPECT (List), Arrested?, Race, Sex, Age, DOB, Mt, Wt, Hair, Eyes, SMT, Address, Phone

ARRESTED Elmo Ray Jr. Fortenberry W/M, 50 YOA, 05/03/1963, Mt: 5'15", 180 LBS, Blonde/Hazel SMT: NONE ADORESS:6703 ECR 97 MIDLAND, TX 79706 CELL PHONE:

1. SUSPECT VEHICLE, Yr, Mk, Series-Body Style, Color, License-Year-State, VIN

NONE

1. WINNERS (List), Race, Sex, Age, DOB, Mt, Wt, Hair, Eyes, Address, Phone H/A $m\mathrm{m}/\mathrm{f}\mathrm{e}$
2. VIDEO WINNERS STATEMENT (List), Full Name, DOB, D.L.B, DL STATE,

SEN, ADDRESS, CITY, STATE, ZIP, NONE PHONE NUMBER, WORK PHONE NUMBER, CELL NUMBER, ALTERNATE ADDRESS, WORK ADDRESS.

NONE

1. Weapons/Instruments or Means of Attack.

Mands

1. SYNOPSIS

On January 04, 2014 at approximately 1707 Deputy Gomer while on patrol responded to a call located at 6703 ECR 97 in reference to an advise of rights, where an-intoxicated male subject was calling 911 multiple times after he was advised by dispatch to call on the non emergency line.

Upon Arrival Deputy Gomer noticed a white male wearing blue overall's in the middle of the street on ECR 97. Deputy Gomer made contact with the male who was later identified as Elmo Ray Jr Fortenberry. Deputy Gomer asked Mr. Fortenberry what was going on. As soon as Deputy Gomer-stepped out of his patrol vehicle and asked him he replied and stated "cfuck-you"! went objectif Painter outthere." Deputy Gomer told him first tell me what's going on. Mr. Fortenberry kept on yelling the same thing over and over. Deputy Gomer told Mr. Fortenberry to get out of the street and to come to the side of the street to talk about what was going on. Mr. Fortenberry refused to listen to Deputy Gomer instructions. "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you" and "See you"

*30

EXh:G:T( $F$ )

Deputy Report for Incident 14-00167

times in the face to get him to let go of the taster. At that point Deputy Gomer called for more units to help. Deputy Gomer struggled get ahold of Mr. Fortenberry's hands due to the fact that he was attempting to grab Deputy Gomer's hands. Deputy Gomer managed to get ahold of both his arms and finally placed on one hand in a handout. While Deputy Gomer had Mr. Fortenberry pined on the ground waiting for the assisting units to arrive, Mr. Fortenberry yelled to his wife multiple times telling her "let my dogs go so they can get this mother fucker ". Deputies then arrived on scene and assisted Deputy Gomer in getting Mr. Fortenberry under control due to the fact that he was still being combative and aggressive.

While Deputy Gomer initially approached Mr. Fortenberry to calm him down Deputy Gomer detect a strong odor of a alcoholic beverage enitting from his person as well as a slurred speech and red blood shoot eyes. Mr. Fortenberry was placed under arrest for Aesault On A Public Servant due to the fact that he committed an act against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant. Mr. Fortenberry was also charged with the following offenses Reaiering Arrest Search or Transport, Take Weapon From An Officer, Abusive Call To 511 Service and Public Intoxication.

Deputy Gomer obtained a copy of the calls that Mr. Fortenberry made to 911. Mr. Fortenberry was transported to Midland Memorial by Deputy Mactines for jail clearance. Photographs of Deputy Gomer's injuries were taken transferred into a compact disc and turned into evidence. 20. Deputy making report, Badges#. Section, Date

Deputy E. Gomer, 324. Patrol, January 64, 2014

*31

FAKING

FILED

2014 AUG 13 AM 10: 22

NO. CR43001 COUNT I ROSS BUSH DISTRICT CLERK MULAND COUNVICHEXAS DIVID IN THE DISTRICT COURT

V.

ELMO RAY FORTENBERRY, JR. MIDLAND COUNTY, TEXAS

JUDGMENT OF CONVICTION

TRIAL BY JURY - FUNISHMENT BY COURT CONFINEMENT IN ID-TDCJ

| Judge Presiding: | HONORABLE ROBERT H. MOORE, III | | :-- | :-- | | Date Judgment Signed: | The 13TH DAY OF AUGUST, 2014 | | Date Sentence Pronounced: | The 13TH DAY OF AUGUST, 2014 | | Defendant's State Id #: | $03055130$ | | Defendant's Birth date: | $05/03/1963$ |

| Attorney for State: | MICHAEL C. MCCARTHY | | :-- | :-- | | Attorney for Defendant: | JEFF ROBNETT |

| Offense Convicted: | ASSAULT ON A PUBLIC SERVANT | | :-- | :-- | | Degree Offense: | THIRD DEGREE FELONY OFFENSE |

| Date Offense Committed: | The 4TH DAY OF JANUARY, 2014 | | :-- | :-- | | Charging Instrument: | Indictment | | Flea of Defendant: | NOT GUILTY |

Jury Verdict: GUILTY OF THE OFFENSE OF ASSAULT ON A PUBLIC SERVANT Poreperson of the jury: Findings on Use of Deadly Weapon: NO AFFIRMATIVE FINDINGS Punishment Assessed by: COURT PURSUANT TO A PLEA BARGAIN AGREEMENT ON FUNISHMENT

Punishment: SEVEN (7) YEARS in the Institutional Division of the Texas Department of Criminal Justice and a fine in the amount of ZERO. The State will waive Notice of State's Intent to Enhance Punishment paragraph two enhancement after the Court has accepted the defendant's plea of guilty to count I and assessed the defendant's punishment.

Restitution/Reparation: ZERO Time Credit: Concurrent unless otherwise specified. The defendant shall be given credit as required by Article 42.03 V.A.C.C.P. towards the sentence in this cause for all time spent in jail in pretrial confinement in connection with this cause from the date of arrest of the defendant to the date of the sentence of the defendant as certified by the Sheriff and/or ordered by the court in a separate order filed in the papers of this cause.

*32

EXHIBIT (H)

FILED

2014 AUG 13 AM 10:22

NO. CR43001 COUNT I ROSS BUSH, DISTRICT CLEHK MIDLANO COUNPY, TEXAS THE STATE OF TEXAS V.

ELMO RAY FORTENBERRY, JR.

IN THE DISTRICT COURT

JUDGMENT OF CONVICTION

TRIAL BY JURY - PUNISHMENT BY COURT CONFINEMENT IN ID-TDCJ On the 12TH DAY OF AUGUST, 2014, the above numbered and entitled cause was regularly reached and called for trial when came the State of Texas by her District Attorney and the Defendant in person and by the Defendant's Attorney and both parties announced ready for trial. Thereupon the Defendant in open Court pleaded not guilty to the charge contained in the indictment or information and a jury was duly selected, impaneled, and sworn, and after having heard the indictment or information read and the Defendant's plea of NOT GUILTY thereto and having heard the evidence submitted and having been duly charged by the Court, the jury retired in charge of the proper officer to consider their verdict. Thereafter the jury was brought into open Court by the proper officer, the Defendant and the Defendant's counsel being present, and in due form of law returned into open Court the following verdict which was received by the Court and is here now entered upon the minutes of the Court, to-wit: " We, the jury, find beyond a reasonable doubt that the Defendant, Elmo Ray Fortenberry Jr., is guilty of the felony offense of ASSAULT OF A PUBLIC SERVANT as charged in count I of the indictment."

$08/12/2014$

KEVIN GOLDSMITH

The Defendant elected to have his or her punishment fixed by the court, and thereupon the state and the Defendant entered into a plea bargain agreement on the punishment to be assessed, and after considering the

*33 I, the undersigned witness, hereby certify that on this day, I affixed the thumbprints of the defendant as appearing below on the Judgment in cause number $\frac{10000000000000}{{258}^4}$ rendered in the $\frac{{258}^4}{}$ District Court of Midland County, Texas and witnessed the said Defendant affix his or her signature thereto.

SIGNED the $\frac{15}{15}$ day of $\frac{10000000000}{20}\frac{14}{14}$ SIGNATURE OF WITNESS $\frac{{258}^4}{}$ OFFICE OF WITNESS

I, the Defendant in this cause, hereby certify that thumbprints appearing below are my thumbprints affixed by me to the Judgment in cause number $\frac{100000000000}{15}$ in the $\frac{{258}^4}{}$ District Court of Midland County, Texas on the $\frac{15}{15}$ day of $\frac{1000000000}{20}\frac{14}{14}$ .

DEPENDANT Cause Number: $\frac{100000000000}{200000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000

*34

*35

Opinion filed April 23, 2015

In The

(Fiehenth Court of &;ppeals

No. 11-15-00077-CR

ELMO RAY FORTENBERRY, JR., Appellant V.
THE STATE OF TEXAS, Appellee

On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR43001

MEMORANDUM OPINION

Elmo Ray Fortenberry, Jr., Appellant, filed an untimely pro se notice of appeal from a conviction for assault on a public servant. We dismiss the appeal.

The documents on file in this case indicate that Appellant's sentence was imposed on August 13, 2014, and that his pro se notice of appeal was filed in the district clerk's office on April 7, 2015. On April 6, 2015, this court received and filed Appellant's motion for extension of time to file his notice of appeal. The clerk of this court notified Appellant by letter dated April 7, 2015, that the notice of appeal appeared to be untimely and that the appeal may be dismissed. We requested that Appellant respond to our letter and show grounds to continue. Appellant has responded but has not shown grounds upon which this court can continue the appeal.

*36

Pursuant to TEX. R. App. P. 26.2, a notiçe of appeal is due to be filed either (1) within thirty days after the date that sentence is imposed in open court or (2) if the defendant timely files a motion for new trial, within ninety days after the date that sentence is imposed in open court. A notice of appeal must be in writing and filed with the clerk of the trial court. TEX. R. APP. P. 25.2(c)(1). The documents on file in this court reflect that Appellant's notice of appeal was filed with the clerk of the trial court 237 days after his sentence was imposed. The notice of appeal was, therefore, untimely. Absent a timely filed notice of appeal or the granting of a timely motion for extension of time, we do not have jurisdiction to entertain this appeal. Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993). Neither the notice of appeal nor the motion for extension were filed within the fifteen-day period permitted by TEX. R. App. P. 26.3. This court, as an intermediate appellate court, has no jurisdiction to grant an out-of-time appeal or to grant an untimely motion for extension; the Texas Court of Criminal Appeals is the only court with jurisdiction in final postconviction felony proceedings. Olivo, 918 S.W.2d at 522-24, 525 n.8; Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991). Additionally, we note that the trial court's certification of Appellant's right of appeal indicates that Appellant has no right of appeal because this is a plea-bargain case and because Appellant waived his right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d).

This appeal is dismissed for want of jurisdiction.

PER CURIAM

April 23, 2015 Do not publish. See TEX. R. App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.