Hayes, Gerald v. State

r« =4 ISH7-W OR! IN THE COURT OF CRIMINAL APPEALS OF TEXAS ~"AUSTIN, TEXAS FILED IN COURT OF CRIMINAL APPEALS COURT OF APPEALS APR 17 2015 FOUR|PE&gT"H JUDICIAL HOUSTON,TEXAS Abel Acosta, Clerk CAUSE #01-09-00193-CR GERALD ALAN HAYES/APPELLANT VS. STATE OF TEXAS, APPELLEE PETITION FOR DISCRETIONARY REVIEW ORAL ARGUMENTS REQUESTED RECEIVED IN f^SSoFcmm. appeals APR 16 2015 sta, IDENTITY OF PARTIES AND COUNSEL APPELLANT Gerald Allen Hayes TDCJ NUMBER 1578806 Mark W.Ellis Unit 1697 Farm to Market Road 980 Huntsville, Texas 77343 DEFENSE COUNSEL AT TRIAL Appellant prose STAND 9* COUNSEL Allen Isbell 202 Travis Street, Suite 208 Houston, Texas 77002 PROSECUTORS AT TRIAL Alison Baimbridge Assistant DistrictAttorney HARRIS COUNTY DISTRICT ATTORNEY'S OFFICE 1201 Franklin Street, 6th Floor Houston, Texas 77002 PRESIDING JUDGE The Honorable Mark Kent Ellis 351ST DISTRICT COURT 1201 Franklin Street, 14th Floor Houston, Texas 77002 APPELLANT'S COUNSEL Franklin G. Bynum Assistant Public Defender HARRIS COUNTY PUBLIC DEFENDER'S OFFICE 1201 Franklin Street, 13th Floor Houston, Texas 77002 APPELLANT pro gie—appointed U TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL INDEX OF AUTHORITIES STATEMENTS REGARDING ORAL ARGUMENT STATEMENTS OF THE CASE STATEMENTS OF PROCEDURAL HISTORY 3 •H STATEMENT OF THE QUESTIONS ARGUMENTS 15 PRAYER FOR RELIEF CERFIFICATE OF SERVICE DECLARATION APPENDIX in -t INDEX OF AUTHORITIES STffT^. CAS2-S ^w^ V., STftT€_ ^TP ^|^3^SU ^3d ^-7^8- Oxc^^Yf ^^i^^ ^^ n VI s n n 10 8 n Co r( io •S,i3> <b 8 SiX-^ ftr^&^d y5Ca-TXCcf 32A3 n STATEMENT REGRADING ORAL ARGUMENTS This case is one of possible first impression and concerns several relevant State and U.S. Constitutional issues based on the riqhts of A prose defendant at trial and pro se Appelant counsel once appointed by the Court of Appeal. The defendant/ Appellant/ pro se , has evidence within the record and personal knowledqe as counsel durinq the (6) years that due process of law and abuse of discretion by trial court and Court of Appeals-First District has repeatedly occured in part due to his attempt to defend himself and brinq the truth(withheld evidence) to li^ht* Oral arguments would help clarify and corroborate the history and evidence of this case that appointed counsel have refused to do as an advocate for the client and justice. The opinion to follow in this case if properly litigated before this court would be a standard for the lower Courts to follow. "3P STATEMENT OF THE CASE, A Harris county Grand Jury indicted Gerald Hayes July,22 2005 for Aggravated Robbery-Firearm( ), amended Aggravated Robbery-Pellet Gun(CR:09) 1/18/2008 and reindicted Aggravated robbery -Firearm (Oft.1*) 1/9/2009. May 17,17,2007, a Faretta hear ing conducted granting Mr.Hayes request to represent himself at trial, removinq Allen Isbell but appointing him standby.(4:RR36) Jury selectedon February 20,2009 (9RR:14) and guilty verdict re-, turnedof lesser included offense Robbery-Pellet Gun on Feb. 24,, 2009(11RR:127) The trial court granted Allen Isbell a continu ance for punishment proceeding, April 15,2009 Judge Ellis made a findinq of true on both enhancement paragraphs , both plead as "not true" and sentenced to Life in prison. (13RR at 27-29) Scott Ramsey, Appellant counsel, filed and conducted New TriAC hearing March 20 2009(IVCR:637) denied on June 252009(MNT1RR:106) and filed and argued Bill Of Exception at hearinq on Nov.5 2009. Ramsey filed direct appellate brief on Dec.14 2010 prior to his removal. Hayes elected to represent himself as appellate counsel due to claims of incomplete record and a Faretta hearing was orde and held August 4 2011 (1RR:15), COA granted order to proceed pos se on Sept. 18 2011. Pro se hearing pursuant TEXR.APP. P 34.6^f"> held. • Appellant Hayes, pro se, timelv filed direct appeal brief on ^pT, liJWland adopted Scott Ramsey's Briefing, COA ordered prose counsel removed and struck filed brief on ^maJBv 2012., a3ainst the. wished and objections— no hearings held—objections denied(COA D£n>< > Motion to have new appointed counsel Franklin Bynum removed-denie^j State Bar Grievance filed against Franklin Bynum at his request. Bynum filed Ander's brief on April 9,2013 and Pro Se Response to Ander's timely fied and supplement to Response Court of Appeals affirmed Appellant conviction and Ander's brief on OckX.'Z a^/freconsideration filed and denied. Appellant now comes before this Court filing PDR pursuant TEXR. APP.P 68. I STATEMENT OF PROCEDURAL ^iSTORY ,9,0 £W\ of A?^_ 4«s<^W, D//to<db / -U ^ or ^ <V^ ****** Ccu*o*^~tW J Questions Presented tor Review i. \MheVHer -foe Court o£ Appeals erred [n concluding the record was wholly -frivolous and NO arguable 'QrouncKexisl for Appeal, Tj£££fcfiiL<30co a.\AJhetW4|ne standard and guideline in \Mhich -Phe Court ofAppeal used +o remove PROSE"APrWflE CooHSEL and sVrike/ brief was procedurally wifhoul P/^cW and GDndrary4o^ sdandardWrth to-toe OoviProeOfimina] Aypealsaod aS.ConsVi+ufional c\ue proems perVathiV>g -fo Appellate, SQ^reo^eMahbn. Whether the Court of Appeals erred in concluding the record was wholly frivolous and no arquable ground exist for appeal, (slip op at 2-3) ARGUMENT As a threshold matter, Appellate counsel filed an Anders brief on April 9,2013 alleqinq that pro se litiqant created a re cord that completely devoid of any non-frivolous issues.(fenders 18) claiminq only one issue raised by Allen Isbell.(11RR:107) Appellant filed a pro se response,supplement and reconsidera tion, all addressinq reversible errors pursuant T.R.AP. 44^2(^a^b^ and T.R.A.P. 33.1 (la, 2 a,b) on 4/9/2013,5/9/2013, 6/3/2013, with factual and evidentiary challenged, record claims that should had been permitted to be litiqated on direct appeal. Ex parte Garder 959S.W.189,198-200(TEXCRAPP1998) Response focused on same issues previously brief and filed by attorney Scott Ramey Dec. 14,2010 and pro se brief Sept. 12,2012. (see: filed briefs) The COA should had denied counsel's certification of meritlessness appeal since the record support several arquable claims. Bynum's brief did not aduquately address the COA attention on the arquable claims that were evident from the prior (2) briefinqs. (See; Appendix) The appellant was deprived of constitutional adequate representation on appeal by Court of Appeal's affirminq of trial court judgment as prescribed in the Ander's brief, counsel's Anders brief failed to satify the standard when it fail ed to refer to ANYTHING IN THE RECORD THAT MIGHT ARUGABLEY SUPPOR THE APPEAL. A_nders_ 386U .S .at 744 The seperate inauirv by COA of the record was flawed when considering the appeal in the merit the proceedinq is frivolous when it lacks an arquable basis eitheft b in law or in fact. Johnson v. Lynauqh 796 S.W.2d 705,766 (1990) The Appellate counsel and Court of Appeals erred in its failure to determine that (2) suppression hearinqs —Hearing for Bill of exception conducted by Mr Ramsev and Hearing for Motion for New Trial , all within the record did.not constitute arquable and preserved points of error. The Court overruling of pretrial motion to suppress evidence preserve the error on appeal. Brown v. State 183 S.W.3d 728,741 (TXAPPlst 2005) The pending issues and objections addressed in these hearings were U.S. Constitution violations such as suppression of illegal obtained evidence(SX4-8^ impermissible suqqestive ID procedures incourt/out of court that are protected under Due Process of Law US v. Rodqers 126F3d 655 658 (5thcir), Brady violation and Discovery order violations by ADA .airbridge. frriM^^Wn^MH,^^ "ESP^ How could the Court of Appeal -afford a meaningful review of the record if blant error and abuses of trial court litter to record as follows: estate admitted evidence (SX4-10), over defendant objection this evidence was diouted and claimed to had been illegally ob tained violatinq the search and seizure expection of privacy right within the Fourth Amendment.._U.SCA. see-^Chadawick 433US at 15 97S.CT 247 (10RR:154,165,190-192) these items would become the cornerstone of the States case and violate Brad^ and the discovery order .(RR:MNT: 36 :3-9 ) (pretrial objection Feb 13 2009") CCOilO!) (Defendant)' Ofay. Qnd thco+her thnj btwa nttf Jrfdau.Tp i&.k the thiei proSautoA has ntustd^oComply wMthco/'Swrtr/ Cind in On attempt -jo mt i}$itm5 to tMs/t/t the defense an<ktrmb Sitf-rtpn'Saltation cti-fifieull andimpossible Si-/(/^/on>>*Hapftctrs ttit D-A has trfldt cttlilerah decision not-to Comply t/ui-fh 4M ofotovcryoroltr dndalsc to Actmalic lootsty -fowro/s mt, andTCanp/ove e\/iJe/7ce ofMottSpec/fiectl// on (Mctmltr t/; ujtienXouas^, (Sitytffclz i$) Sgt. Ryza confiscated search and a luqqaqe duffle baq without warrant containinq personal items of defendant (SX :5-7 )<, claiminq an incident to the arrest althouqh there was never probable cause to search inside the luqqaqe without a warrant. The prosecutor repeatedly offered the illeqally obtained clothing to match a general discription of clothes worn by the suspect: ,f Does it look like. ..((10RR:105:18-25,RR;104-106) Sq-t Ryza agreed the clothinq were only similar but no proof of exactness(11RR:25-26) and possession not unusal (10RR:202-203) The State had waived the existence of these items seized durinq t the suppression hearinq Dec.11 2008 (MOTION ILLEGALLY SEIZED EVID_. CR:I/II213,CR:I/IV:391) Court; Do ya all have any evidence seized for the defendan that you intend to use at trial . State: No. (RR:mosupp:4:23-25) The Court of Appeals erred by not reviewing suppression pursuant bifurcated standard of review. Carmouche v. State 105 S.W.3d 323 327 (TXCRIMAP 2000) The historical fact are in dispute or not review in full violating TXC.C.P. 3&-__3 and not give a jury instr uction TKa. Ani*Jbg^*> f^(Hk A^d^^Jot^^^ **<* Impermissible sugqestiveness tainted incourt/out court ID procedure during multiple occasion. Guzman v. State 955S.W.2d 85,89, (TXCRIMAPP,1997) I , + «=s lv.oi*S5*»^ These incident demonstrate by clear and convincinq evidence that the trial identification was irreparbly tainted . Neil v.Bigger 409 US 188 — 8 — tf The Motion for New Trial Hearing preserved the reversal 2I: r. claim for Brady and discovery violations. Contrary to the COA previos rulings and USCA. Walker v. State 321 S.W.3d 18 (TXAPP Houslst2009) Defense: from June2008 until you tookover this case until (2) days before trial you have could have ascertain ed the existence of this evidence, right , you could have found out whether it was there and what it was. ADA: Sure if he asked me to. Q: That's not my question, you yourself as prosecutor could have? A: s~ure:~yes " s i r . Q; you did not. A: I did not. (RR:MNT:22:1-4) ADA Baimbridqe was negliqent and unaware of actual evidence ob tained by law enforcement(CR:213) Defense: ...did you make any effort to contact him(Ryza) about what evidence he had in his possession and what evidence was in possession of the HPD. ADA: Besides the evidence that I already had,., nno sir (RRMN1T:19:7/12 Evidence willfully withheld should be excluded . Hoi 1owjll v. State 571 S.W.2d 179,180 (TXCRIMAP, 1978) • The appellate record prevail on a claim of ineffective assistance of counsel by Allen Isbell as both trial and standby counsel7. The record is developed by a preponderance of the evid ence for both (2) prongs of Strickland v. Washinqton 466US 668, 686 (1984) The trial court caused inherent diffuculties and un reasonable prejudice by the restraints on pro se counsel and appointed standby counsel. The trial court ensured that defendant" would be denied rights of assistance necessary to justify reliance, on the outcome of the proceedinqs and a fundamental error of such siqnificants that effects the verdict and subject to automattcreversal by the Court of Appeal. Mitchell 68S.W.3d 640,640 ; (TXCRINAPP 2002) The Appellant contends the record is adequate to address cliams of ineffectiveness. Scheanette v. State 144 S.W.3d 503,510 (TXCRIM AP 2004) .# The Court of Appeal erred in it decision bv conflicting with U.S. Constitutional due process rights and applicable ruling from the Texas Court Of Criminal Appeals by rulinq the record wholly frivolous and no arguable grounds although the trial court imposed a unconstitutional "standby and wait" rule , so the pro se defend ant was forbidden to consult with standby counsel at any time. TC: StRpJdby and wait if you decide youwnat him to represent you.(RRSUPPL:10:10-16) Standby and wfljt until you come to your senses. (7RR:9)/ (RRSUPPL:11:1-5)Cfeb. 13 2009 pretrial h.1 The new trial hearing preserved the issue for appellat review: Defense: And the Judge advised him-Mr. hayes--clearly that that is he choose to represent himself he could not. question or consult with Mr. Isbell, is that corret ti ADA: Almost everytime he was on the docket... You are not entitled to speak with Mr. Isbell. .\RRMNT:50-51) NOT ENTITLED: The Appellant argues that this denial to consult orbe advised during critial stages of trial-guilt-innocence, violates his rights under Art.I sec 9 Texas Const, and Tex.Code Crim.P 1.051 (h) Faretta right$ are not infringed when standby counsel assist in defendant "overcoming rountine procedural or evidentiary obstacles, nor are thev infringed when counsel merely helps to ensure the defendant compliance basis rules of courtroom protocol. "Literally going to be sitting in the courtroom, stand- by-that's the concept...he does not represent you and has no lega^ obligation to the case.(6RR:7) <\ — 10 — 9 The Court of Appeal erred in the application of law to facts pertaining to theleqal sufficiency of the evidence applying the Jackson Standard. Jackson v. Virginia 443U.S.307,319nl2 (1979) The jury was not rationally justified in finding that Appellant was guilty of the lesser-included robbery-pellet gun. The Appellate Court should had found with some, objective basis in the record, that the great weight and preponderence of evidence contradicts the verdict of Robbery-Pellet gun. Watson., v. State 204 S.W.3d 404,415 (TXCRIM APP 2006) Grotti v. State 273 S.W.3d 273,288 (2008) Here the State failed to prove beyowtfd a reasonable doubt that appellant committed robbery by using or exhibiting a pellet gun. If a pellet-gun was used in the course • of so doing, preponderance of evidence would constitute Agg. Robbery TEX.PEN.CD. 29.03 Complaiant, Allen Scroggins testifed gun was in his waistband(10RR:109,113-114)althouqh it was never seen in SX photos and never found,removed or pinted(10RR:127) no verbal threats made. States closinq arqumentemphasised the theory that a semiautomatic handqun was tucked in his waistband. (HRR:120:18-23) but the theory is based on a "bulge"(11RR:121 :23 State: Do you have any prooff of that? The only proof you have is that it was found in his —hotel room... (ref. to pellet gun 11RR:124:14-17) The due process attached to legal sufficiency requires that the State provide proof beyound a reasonable doubt of every element of the crime charqed. Since Robbery 29.02 PEN.CD involve a two part analysis , the evidence fails to demonstrate that de fendant "caused bodily injury,.?thfeatened + -"-or:-placed:another in fear of IMMINENT FEAR bodily injury or death while in the course of committing theft." there is reasonable doubt as to the element" IMMINENT FEAROF BODILY INJURY OR DEATH certainly if the robbery was executed with a pellet qunand a lack of any physical inter action between victim and the defendant . Harper V State 675 SW2<i 534-5^6 (lH'ous app) Scroggins was never in imment fear but did state "kind of in.shock"(19RR:10:116:7), "kind of like paused" (10RR:109) The evidence is leqal insufficient to prove all the elements of Robbery -pellet qun because the facts and testimony of witness prove the theft was with a note-"note dropping" Scroggins: He had a letter in there(Fed-Ex envelop). I didn't notice it at the time but it was a letter demanding, I quess cash...(10RR:108:10-16) The State expert witnesses deputed the gun allegation when veiw- the photos(SX:17-20), no weapon seen (RR10:36) and Oglesby stated "I saw basically a man provide an envelope to a teller and then recieve some money and the he left the premises.(10RR:71:1-8) When all the facts of this case are considered, it is clear that a findinq of qulity for Robbery-pellet gun is against the great weight and prepondence of the credible evidence and this issue should had been briefed bv Appellate counsel. Evidence did not match theory alleged in indictment of lesser included offense and motion to quash were filed and denied in pretrial—demanding appropriate manner and means in which defendant caused immient fear. Cruise.v. State 587S.W.2d 403 TXCRIMAPP1979 Sidney v. State. 560 S.W.2d 679 (TXCRIMAPP 1978) A unprepared Allen Isbell, stand by counsel, incorporated a possible circustance in the criminal espisode as a."hypothetical" in addition to proof that the defend- II ant was not at the Wells Fargo Bank at the time of the robbery, but a registered guest at the Westin Hotel and made a phone call at the time of the robbery.(1IRR:66-97) Clearly a disparity exist between the charge and proof and the jury failed to reach a ration al decision if it's centered on irrational and unreasonable evid ence to support the element of a crimal offense. Clearly the Court of Appeals erred in apply the correct stand ard of review for sufficiency of ev/dence based on all the relevant evidence within the record and it decision that the record is wholly frivolous conflicts with other Court of Appeals and the Jackson Standard_adhered to by this Court.T.R.A.P.66.3 £aX.c> ilcwu-*..*u«w 9^>v *<•*+ ^-^:^ss^<•**"*** Wl — 13 — J-vlaJ o^^^*^ ^i;^ ^Pbn^A ActA^S-f ^ JW am» ftf^ c^-c^s. ******