Case Information

*1 IN THE COURT OF APPEALS THIRD DISTRICT

ROBERT LEE MARTIN V.S.

03-16-00575-CR

THE STATE OF TEXAS Appellee

MARTIN RECEIVED DEC 22 2016 THIRD COURT OF APPEALS APPENDISE BREF.

FILED December 22, 2016 Third Court of Appeals Jeffrey D. Kyle Clerk

Appell From The 331st District Court Travis County, Texas Cause Number D-1-DC-95-955390

Appellants Response To The STATEs Appellee BREF.

Now Convers Albert Leemartin and respectfully Sulomits this bnief in response to that of the appellee.

*2 FACIS Appellant was, Orrged with agerowated Tesual assoy with a deasly weapon refaciting a 198 , incident. There, Nass, testified that appellant offered her some Greek, cocaine, called a suite on her and forced her to have oral and vaginal intercourse. She testified that appellant threatened to kill her and during the incident, She was forced through mind and water. She reported the incident, The following day and picked appellant from a photo, then up. The compalment acknowledged, that, She used Grook cocaine and that, She had a Error, felony conviction for which She seased there in the Inspiration, Division of the Texas Department of Criminal, Justice, She admitted, that, She used Grook cocaine, and that, She had two becks with appellant Error to the alleged assault. Austin Police Department officer Charles Johnson testified acknowledged that drug addicts may go to extremes to get crack-cocaine. LAR III 661.

2.

*3 Summary of The Arguments Appellants appeal is timely the trial court (1) (1) (1) (1) (1) (1) (1) (1) (1) (1) (1) (1) (1) (1) Octobee-11/7-2016.

Appellant relies upon Newly Descever evidence obdressed in a notice, is sived by the Reus Forensic Science Commission on August 27-2015. It was a Notice regarding DNA J mixtures analysis conducted by Reus Crime laboratory. Appellant Motion For DNA database, Search This nothing to do with jurisdiction, granted under Chapter 189 of the Reus Code of Criminal Procedure. Appellant Motion for DNA database search has been providing in the 3312 District Court Travis County's Sieve March-2019 the Trial Court never consider or ruled out.

Appellants Reply To Appellees Brief

1. Appellants Notice of Appeal was Timely To a criminal case, appeal is perfected by timely Filling a Surticient, notice of Appeal

*4

asa Criminal Cases.

La Rights to appeal [2] of the defendant, a defendant in a Criminal Case has the right of appeal: The trial court shall enter a Certification of the defendants, right of appeal each time it exters a judgment of guilt or other agreeablel order.

[b] Perfection of appeal: In a Criminal case, appeal is perfected by timely filing a Sufficient notice of appeal. In a Criminal case, appeal is perfected by timely filing a [C] Form and Sufficiency of Notice: In Notice, must be given in writing and Filed with the trial courtclerk. Filed with the trial [2] Notice is Sufficiency if it Shows the party's desire to appeal from the judgment or Other appealable order.

[d] Certification of defendant, right of appeal: The defendant is the apperant, the [2] of the defendant is the apperant, the [2] of defendant, right of appeal under the asassion of 4.

*5 The Certification Shall include a notice that the defendant has been informed of his rights, concerning an appeal, as well as any right to File a pro-sellection for discretionary review. This, notification, shall be signed by the defendant, with a copy given to him. The Certification should be part of the record when notice is filed but may be added by Timely amendment or Sub-Emendation under this rule or Rule 315 (osul) or Rule 321 or by order of the appellate court under the 315 (cbtal). [h] Advice of right of appeal: $◻$ When a court enters a judgment or other appealable order and the defendant has a right of appeal, the Court carally or in writing a Shall advice the defendant of his right of appeal and of the requirements for Timely Allow a Sufficient Notice of Appeal. Notice of appeal was Timely, were on April-1490 after holding law evide-tion, hearing andexamining the tests results. The trial court issued findings of fact and conclusions of law (2) 1490.

*6 The trial Court did not enter [issue] a Certification of the demandants, right of the opal when it enter its April-Jun 2010. Findings of Fact and Conclusions of Tax Rule on appealable order. See Rules App. Reo-Buie 25.2 (a) (2).

6.

*7 It's readily apparent that the trial court did not file its IICertification on the day if issue on appeal. But, on April-14-2003 The Trial Court Certified appellants, right to appeal and gave him permission to appeal on October-17-2003. Textiles Applied Rule 25.3 TATLTIBS. Six years later. Six years later the appellants Notice of Appeal was filed on August 22, 2003. This Notice, "of Appeal was filed on 20 August 2003, and on second March 2004, the the the trial Court Certified appellants permission to appeal on October-17-2006. The State adults this in its appellers Brief See page 2 States appellers. Brier The State, Further admits in its brief the same standards for any other criminal appeal apply to an appeal of Chapter 64. Heavings in Jex. case Lrimes. Tastes

*8 The appellant has Satisfied the requirements of Subsection The appellant Notes of Appeal was filed the trial, and an event, with the trial, court filed the certification of the appellants, right of appeal, and within 30 in days other, without the trial courts permission to appeal. Trial Courts Certified appellants, right to appeal and gave him permission to appeal for Octobr-17-2016. Appellant Filed Notice of Appeal on August 28-2016 Therefore, appellants, Notice of Appeal was timely and the trial court of Appeals has jurisdiction to address the megths of the appeal, further tax rules of App. 106. 34.5: J. Glentis. States, Unless the parties designate the Fihins in the appellate record by agreement with Bule 349 the recall, met include copies of the Follow-up: LAS in legational cases, a Certified the trial courts Certification of the defendant's right of appeal under Bule 25.2 (see Deans's State) 11/34-5W3d 60-611-615 18 105W3d 174-175

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II The States opposing, argument appellant relies on facts outside the appellant record. and he fails to support his arguments, with evidence from the records irrelevant.

Argument # Authorities

First of all the Case law that the State used in its opposing, argument Whitehead State 1395 W. 34 1866-1872-this case is about an indigenous, determination to see if defendant consist of Appeals was reversed in part and affirmed in report.

A appellant Гdefendant Law raise a matter not I determination, Hong the record for the fact that appellant raised a matter not determining the Hong the record, upon which [see BeuesV State 849 5W3d 812] Texcinnity 1993] Exhacte, Wilson 724 5W 2d 72-74 Texcinnity 1993] Bandiev State 847 5W3d 576 Texcinnity 1993

*10 The defendant weed only assert reasonable grounds, For relief that are not detecylinable from the record in order to be omitted to a hearing. The purpose of the hearing is to fully the Motion of Jordan's State as Suited by the Standard of Review Article 40.001 Texas Code Crim. Pooc. New trial on Material Evidence A newtrial shall be granted an accused where material evidence favorable to the accused has been discovered since trial. Under that Statute a defendant is omitted to have his Motion for very trial granted it. As the newly discovered evidence was unknown, to him at the time of trial, (2) his failure to discover the new evidence was not due to his lack of due difference. (3) the new evidence is admissible and not merely Cumulative corroborative, Col lateral, or impeaching and (4) the new evidence is probably true, and will probably bring about additerent result at trial.

*11 [See Kector V. State, 745 S. W3d 31-36-37Texcl. 190093 A defendant is entitled to a heading on his Motion for new trial, if the Motion and accompanying affronts raise matters of determinable from the record upon which the accused could be entitled to relief. [See Keyes V. State, 849 S.W. 2d 812-816 [Tex. Grim. 1903] To be sufficient to entitle the defendant to a heorising the Motion, For New trial and accompanying affordants wee not establish a orima facie Case for New trial Dordany State, 883 S.W. 2d 664-665 (Texctpany] Rather they must merely reflect that reasonable grounds exist for holding that such relief could be granted. 1 [See Matthew V. State, 74 S.W. 3d 719-22 [Texclim 2003] The purpose of the hearing is to give the defendant an opportunity to fully develop the matters rasised in his Motion Id. at 211

11.

*12 If the trial court dries a hearing on the Monst, for nontrifl and the defendant appeals, From that denial the appellate Court must review the trial. Results decision for abuse of discretion Id. 222. The appellant relles on which discovered evidence that was wikow to Ulim when the trial Court senter Lissus I. 175, April 12220 Findings of Fact and conclusions of law The appellant was posecuted for an othouse where the evidence used against him, included a DNA mixture analysis conducted by a Texas Crime laboratory.

1. This, wewly discovered evidence, in particular, During the DNA analysis of Tone or more samples relating to Case Case 22222 The Opini delreark Ido appears to have used the ESTs 1889 and 12201 S.E. Population Database, which was recently found to contain Minor discrepancies.

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1. Further during the DNA analysis of one or more DNA mixtures relating to this case Cause the Orm appens to have used a protocol and, by the last, to recourt SORRITIO developments relating to the interpretation of DNA mixtures.
2. A DNA mixture refers to evidence that includes DNA from more than one person. When a DNA mixture is analyzed, the laboratory, report of ten includes a statistic, informing the prosecutor judge, or any how probable it is that a large, caseft person in the population who is unrelated to you could be included in the DNA mixture. Additional information concerning these issues is addressed in a Noti- fication issued by the Texas Forensic Science Commission on August 27-2015. The Texas Forensic Science Commission is currently in the process of assembling a pawl of exports and criminal justice stakeholders to determine what guidance may be provided to assist sex. Idiotargets in addressing the issue-13.

*14 The appellant can Support his arguments with a newly discovered evidence. Outside, of record where, Material evidence favorable to the appellant has been discovered since the trial Court issued, its April-14-2010 Findings of Fact and conclusion as of law.

Further because the appellant raised a matter. Outside of record upon which he could be entitled to reflect. See Exports. Wilson 724 S.W. 2d 72-247. Wald

*15 The appellant weeds the number of occurrences of the also genetic profile within the state of was DNA database to be able to attach the Statistical accuracy of the Mach-0200 SNP and CELMAR laboratory DNA test results identifying him as the perpetrator. Appellant Motion for DNA Database Search is readily apparent that it has nothing to do with classification granted under Chapter 61 for the of Cm. P0c. The tifl fount in its Apol-1-2010 Evidence admitted the also genetic profile evidence Appellant filed this Motion respecting the trial fount to use its authority of the State of was convicted database for all occurrences of the also people. Atrial fount cannot bave a defendavite access to evidence that could have assisted him in establishing his uniopeace by possibly casting a Serious doubt on the States Identification Evidence. bobs so would Call into question the integrity of the criminal process.

*16

The State's primary evidence identifying a product as the offeady ways a B 10 ci andhys between his DNA profile, and a Male-DNA profile obtained from the Victims Vaginal SIGids. The State provided the tries of Fact with this Statistical analysis evidence, which supports to explain the parity of a certain DNA profile. [ see USV-ONVES, 887A.2d 1012100, (dnt offeysus.]

Conclusion

Appell Seeks to, contextualize, the theoretical iscientifie conchupous in his case by examining the probability of finding a B 100 profile matches in the state of Texas convicted offender DNA database. As the State was able to introduce the astenemical statistics in regard to b 10 ci matches it would certainly be both material and relevant to counter-thase Statistics with the probability of finding a B 1000 matchss in the Texas database. The State has unlimited and unfettered access to Texas convicted database.

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*18

CERTIFICATE OF SERVICE

Ihe

*19 December-14-2016 Jeffrey D. Life Clerk Middlesex 2547 Austin, Texas 78711-2547 Dear Clerk Evolved you will find agnolants Robert Leemhach response to the states appoltes Brief moud of the third court of Appetts. Theuk you for your larsitization

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