Longoria, Felix

1 IN THE //YA/^ H P 1C: \ hi A 1 UmbtlMnL court OF CRIMINAL APPEALS

AUSTIN , TEXAS

EX PARTE FELIX LONGORIA § Appellant/ COURT OF CREINAL APPEALS § VS f& 02 2015 NO.PD-1141-14 § THE STATE OF TEXAS, Appellee ^^h^ffff^Clerk § COURT OF CRIMINAL APPEALS APPELLANT'S MOTION FOR REHEARING f£Q Qo 2015 TO THE HONORABLR COURT OF CRIMINAL APPEALS: Abel Acosta, Cierk Comes now, Felix Longoria/ appellant pro-se in the above-styled and num

bered cause and moves this Court pursuant to the Texas Rules of Appellate Procedure,Rule 79.1 and 79.2 (c), to consider the Court's order of January 14,2015 for rehearing. In support thereof ,v Appellant will show the following:

I.

This Honorable Court of Criminal Appeals has subject-matter jurisdiction to hear this motion under Appellate No, 03-13-00603-CR and the Rules of Appel late Procedure, see Rule 79.2(c).

II.

On January 14,2015 this Court ordered Appellant's Petition for Discretionary Review refused. Appellant received the order on the 21st of January,2015.

III.

Appellant follows the Court's directives found in Rule 79.2(c), and pur suant to the Texas rules of Appellate Procedure, appellant so certifys that this Motion for Rehearing is grounded on substantial intervening circumstances and is made in good faith and not for any delay which would tend to prejudice the State or the interests of justice.

IV.

The interest of Justice is the objective upon which the appellant seeks by asking this Honorable Court of Criminal Appeals to reconsider the Petition -for Discretionary Review refused on January 14,2015. The issues within the

-1 -appellant's Motion for rehearing refer to appellant's substative right which is material to his incarceration and punishment. The reason(s) for the Review asked whether the appellant is allowed to get before the Court exculpatory evidence that had been ignored by the appellant's Attorney,the State, and the Trial Court Judge,although testimony revealed that this evidence existed. The Attorney for Felix Longoria never sought to search for the Woman named Debbie in order to establish a Constitutional right to have and present witnesses in appellant's own behalf. DIETZ V. STATE, 123 S.W.3d 528, at 532(Tx.App.-San-Antonio 2003),citing CHAMBERS V. MISSISSIPPI, 410 U.S. 284,at 303(1973). The appellant and his witness at the revocation hearing gave testimony concerning the existence of such a witness that would have been able to give testimony, about the elements of the offense against the Appellant and a tape of Debbie stating that she and the victim Joni Longoria caused the injuries Joni sust ained because of the assault,and not the appellant. The rules of Appellate Procedure Rule 33.1 requires that any ground for Appellate Review must be es tablished through objection by a party and a ruling by the Tial Court upon matters in issue. Appellant's Attorney never established any such ground to preserve an Appellate claim. Moreover, The failure of which should not be att ributed against the Appellant. RANDLE V. STATE, 847 S.W.2d 576, at577 and at 580(Tex.Criminal Appeals 1993). The Trial Court was alerted to this substan tive right as the need to establish a fact, see Article 2.01. The prosecutor had a duty to establish whether or not the appellant would have been exculp ated through a finding of his innocence. Which appellant claimed,plea notwith standing. These intervening events must certainly show the circumstanees for a rehearing by the Court.

Appellant, was not refused with prejudice. A refusal of ••/Petition for Discretionary review...does not constitute endorsement or adopt of the rea soning employed by the Court of Appeals, see BUGARIN V. STATE,789 S.W.2d 594, at 595(Tex.Criminal Appeals 1990), Appellant cites this reasoning although an

- 2 -

appellant pled true to the allegations against him at the revocation hearing. Before his testimony to plead to the allegations and the trial court hearing, his trial Attorney was made aware of the Tape that Debbie spoke her out-of- court statement concerning the assault. This may have been reliable and also

material towards appellant's claim of innocence and through his Attorney he would not have had to plea as he had. This fortfeited his chance at effective

assistance of counsel and the Sixth Amendment right accorded to establishing Compulsory right to witnesses in his behalf. The Proscutor also was aware of

the Tape. Appellant should not be held in error v/here even Constitutional

rights may be waived. EDDIE V. STATE, 100 S.W.2d 437, at 440-441( Tx.App.- Texarkana 2003).

CONCLUSION AND PRAYER

In conclusion, the appellant requests that this Honorable Court of Cr iminal Appeals reconsider the substantial intervening circumstances that are present. The above events are secured on trial record. Appellant prayes that because of the argument above the appellant asks that the Motion is Granted. Signed on this Jj(* day of ?\/J£rf/?Juuy^ ,2015.

Respectfully Submitted,

\ ^7 0 ^ - ^ -XT'

Felix Longoria, appellant Pro-Se.

c e r t i f i c a t e of service

A true and correct copy of appellant's Motion for Rehearing was mailed to the State Prosecuting Attorney pursuant to Rule 9.5 T.R.A.P. at Lisa C. Mc- Minn-State prosecuting Attorney,POB 13046-Austin,Texas 78711.

szZjl/ciL (KS?7j '^/^

- 3 -

^o- ^ ^. ^ X

I ^ "t I ••o

m •:.\

{••••

i\v \ y fi ^ ^ ^

a') ^ ."M ^ 1 1 - <A 5» t> 0» P j? ft*- 3 rtss"

•wLr

u PJ l,y a w H Un *** *ia

.j T

m ?5 i* N ,tf