_________________________________

TO THE

TEXAS COURT OF CRIMINAL APPEALS

____________________________________

EDMUND BRYAN HEIMLICH,

Appellant,

VS.

THE STATE OF TEXAS,

Appellee.

___________________________________

From the

Fourteenth Supreme Judicial District of Texas, in Houston

Cause No. 14-93-01142-CR

Appeal from the

County Criminal Court at Law no. Nine (9), Harris County, Texas

Cause No. 9308270

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TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

The Appellant, EDMUND BRYAN HEIMLICH, was charged by information in cause No. 93-08270, styled State of Texas v. Edmund Bryan Heimlich, of the offense of Interference with the duties of a Public Servant, on February 23, 1993, a jury trial commenced in the 9th County Criminal Court of Harris County, Texas, on December 7, 1993, the Honorable Al Leal presiding. On December 8, 1993, he was convicted of the offense and punishment was assessed at 10 days in jail and a $500 fine. Appellant filed written notice of appeal on December 8, 1993. Appellant timely perfected his appeal.

Appeal bond was set at $5,000 (Five Thousand Dollars). The appellant was then into custody after sentencing on December 8, 1993. Defendant completed his sentence but was held in the Harris County jail until December 14, 1993 whereupon his appeal bond was reduced and he was released on personal recognizance bond.

In it’s continuing attempt to prevent justice in this cause and protect E. Wilburn Godfrey from criminal and civil liability, because of his position as a law enforcement official, the Harris County District Attorney’s office arranged for the incarceration of the Petitioner from the period of November 17, 1995 until April 17, 1995. Their purpose was to prevent the Petitioner from filing this Petition for Discretionary Review. Petitioner therefore request this Court grant review on it’s own motion as a matter of sound judicial discretion.

The Fourteenth Court of Appeals rendered Judgment and filed Opinion November 30, 1995 (per the Opinion). The Opinion is date stamped December 21, 1995 by the District Clerk of Harris County. Dispite diligent efforts the Defendant was not able to obtain a copy of the Opinion until April 25, 1996. Oral argument would be helpful.

STATEMENT OF THE NATURE OF THE CASE

On February 23, 1993, Deputy Godfrey arrived at Appellant’s business, Choice Realty, 10375 Richmond, Suite 150, Houston, Texas. (SF Vol. III. p. 124, State Ex. 14, p.1). On the door to Appellant’s business was the name Choice Realty. (State Ex. 14, p. 1). Deputy Godfrey was serving a standard writ of execution on a corporation named Chasewest Corporation showing the address 10375 Richmond, Suite 930. (SF Vol. III, p. 143, State Ex. 1A).

Deputy Godfrey was accompanied by David Ross who was the judgment creditor. (SF Vol. III, p. 126). Mr. Ross had obtained a judgment against Chasewest Corporation on September 8, 1992. (St. Ex. 10A). However; Because Chasewest Corporation was no longer in existence and Suite 930 was vacant Ross directed the Constable to the office of Choice Realty in Suite 150. Mr. Ross provided Deputy Godfrey with a receipt showing the purchase of a computer by the Appellant, which contained the name and address of Chasewest Corporation, 10375 Richmond, Suite 930, Houston, Texas. (Def. Ex. B). Ross told Godfrey the computer could be found at Choice Realty. Based on this information Deputy Godfrey went to Appellant’s business seeking to size this computer.

Upon the Deputy’s arrival a conversation between Appellant and Deputy Godfrey insued, which was tape recorded by Appellant. (State. Ex. 14). Appellant inquired under what authority Deputy Godfrey had for being on the property of Choice Realty, seeking to collect a judgment against Chasewest Corporation. (State Ex. 14, p. 1). There were several computers in the office. However; The Deputy stated he was only interested in seizing the computer sitting next to the Appellant’s desk. (State Ex. 14, p. 1). The deputy did not ask for any other assets of Chasewest Corporation or if Chasewest Corporation would pay the judgment.

Appellant inquired who had purchased the computer and Godfrey replied E. Heimlich. (State Ex. 14, p. 1). Appellant then inquired who the judgment is against and Godfrey replied Chasewest Corporation. (State Ex. 14, p. 1). Appellant twice asked Godfrey to wait until his attorney arrived. (State Ex. 14, p. 3). Ross instructed the Godfrey to take off the back of the (computer) and that he brought a screwdriver. (State Ex. 14, p. 3). The Deputy moved toward the computer of the Appellant while stating he wanted to remove take off the back cover. (State Ex. 14, p. 3). Appellant immediately picked up the phone and asked for the Houston Police. (State Ex. 14, p. 3). Appellant then asked Godfrey to wait until he had an opportunity to remove the information from the computer. (State Ex. 14, p. 4). Godrey refused to cease and desist.

Immediately after calling the Houston Police Department (HPD), and while Godfrey was still attempting to move the Appellant away from the phone, Appellant called Building Security. (State Ex. 14, p. 4). Appellant then asked Godfrey to get his hands off of him and wait until the legal authorities arrived. (State Ex. 14, p. 4). While Appellant was on the phone with the Houston Police Department Godfrey stated "Now whatever it’s gonna take." (State Ex. 14, p. 5). Godfrey continues his assault and attempt to push Appellant away from the phone while the Appellant is talking to HPD and answering other calls to the office.

Appellant then asks to see the documents Godfrey has and Godfrey refuses (State Ex. 14, p. 6). Building Security then arrives and Deputy Godfrey then discontinues his assault. Appellant then asked Steve Ivey if he witnessed the assault and he replies that he did. (State Ex. 14, p. 7). Appellant then offers to provides the Texas business and Commerce Code and Texas Corporation and Partnership law and offers it to Godfrey. (State Ex. 14, p. 8).

Officer Spier of HPD then arrives and Appellant informs him his attorney is on the 9th floor of the building and should be arriving shortly. (State Ex. 14, p. 9). Ivey informs HPD Officer Speir "They started pushing him (Appellant) and that’s when he (Appellant) called you (HPD)" . (State Ex. 14, p. 10). Appellant’s attorney (Howard) arrives and advises Appellant to pay the Judgment and appeal later. (State Ex. 14, p. 15). Appellant then asks Godfrey is he will accept cash and he says yes. (State Ex. 14, p. 15). After receiving cash in full payment of the amount of the Judgment and costs Godfrey takes Appellant into custody. (State Ex. 14, p. 18).

Appellant asked the HPD officer responding to the call, and later Assistant District Attorney Stuart Brown, to take charges against Officer Godfrey for assault. Appellant's requests were denied. After Deputy Godfrey, with the assistance of his supervisor, Deputy Constable Dennis Ray Kuithe, rewrote their report several time the Harris County District Attorney’s office charged Appellant with violation of Section 38.18 Texas Penal Code entitled "INTERFERENCE WITH DUTIES OF PUBLIC SERVANTS.

THE APPELLATE COURT WAS UNABLE TO FIND ANY AUTHORITY THAT INTERPRETS SECTION 38.18. THIS CONSTITUTES AN IMPORTANT QUESTION OF STATE LAW WHICH HAS NOT, BUT SHOULD BE, SETTLED BY THE COURT OF CRIMINAL APPEALS.

 

THE APPELLANT COURT IS OF THE OPINION THE OFFICER WAS PERFORMING HIS LAWFULLY ASSIGNED DUTY AT THE TIME OF THE ALLEGED OFFENSE. AT QUESTION IS WHETHER THE OFFICER HAS A SUPERIOR DUTY TO THE CONSTITUTION AND THE LAWS OF THE STATE OF TEXAS.

GROUND FOR REVIEW THREE

THE APPELLATE COURT MADE ANALOGY TO CONVICTIONS FOR RESISTING ARREST. IS THE DEFENDANT "RESISTING" WHEN HE HAS GIVEN NOTICE TO THE OFFICER HE IS VIOLATING THE LAW?

GROUND FOR REVIEW FOUR

 

IS THE DEFENDANT "RESISTING" WHEN HE HAS CALLED HIS ATTORNEY AND ANOTHER POLICE AGENCY IN AN ATTEMPT TO DEFUSE AND PREVENT ESCALATION OF DISAGREEMENT WITH A LAW ENFORCEMENT OFFICIAL?

DOES THE EXECUTION OF A WRIT TO LEVY PROPERTY PERMIT THE OFFICER TO DO POTENTIALLY IRREVERSIBLE DAMAGE TO THE PROPERTY HE SEEKS TO LEVY? DOES THE WRIT OF EXECUTION PERMIT THE OFFICER TO TAKE TRADE SECRETS AND INFORMATION VITAL TO THE FUNCTIONING OF THE JUDGMENT/DEBTOR’S BUSINESS? DID THE MANNER IN WHICH THE OFFICER EXECUTED THE WRIT CONSTITUTE A "REASONABLE SEARCH AND SEIZURE"?

DOES "DUE PROCESS" REQUIRE THE OFFICER TO COMPLY WITH THE RULES OF CIVIL PROCEDURE?

ARE CITIZENS TO BE DENIED "EQUAL PROTECTION OF THE LAWS" WHEN CONFRONTED BY LAW ENFORCEMENT OFFICIALS? ARE CITIZENS REQUIRED TO SUBMIT TO THE WILL OF LAW ENFORCEMENT OFFICIALS REGARDLESS OF WHATEVER CONSTITUTIONAL RIGHTS AND LAWS HAVE BEEN ESTABLISHED?

GROUND FOR REVIEW EIGHT

 

IS A CITIZEN A "CRIME VICTIM" ENTITLED TO THE SAME PROTECTION GUARANTEED BY THE TEXAS CONSTITUTION IF THE ACTOR (PERPETRATOR) IS A LAW ENFORCEMENT OFFICIAL?

 

THE APPELLATE COURT WAS UNABLE TO FIND ANY AUTHORITY THAT INTERPRETS SECTION 38.18. THIS CONSTITUTES AN IMPORTANT QUESTION OF STATE LAW WHICH HAS NOT, BUT SHOULD BE, SETTLED BY THE COURT OF CRIMINAL APPEALS.

"There are no criminal cases in Texas under this section of the Penal Code. The case is the one of first impression". (Opinion filed November 30, 1995, Fourteenth Court of Appeals, cause No. 14-93-01142; PER CURIAM - Do not publish). Therefore this is a case of importance to the jurisprudence of the state. This action arises under the United States Constitution, particularly under the provisions of the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. And under Texas Law, particularly Rule 637, Texas Rules of Civil Procedure and The Penal Code Section 9.31 and 9.41 among others.

THE APPELLANT COURT IS OF THE OPINION THE OFFICER WAS PERFORMING HIS LAWFULLY ASSIGNED DUTY AT THE TIME OF THE ALLEGED OFFENSE. AT QUESTION IS WHETHER THE OFFICER HAS A SUPERIOR DUTY TO THE CONSTITUTION AND THE LAWS OF THE STATE OF TEXAS.

The duty referred to by the Appellate Court was a writ execution granted by the JP

Court. However; The Officer also had a duty to honor his oath of office to defend and

protect the Constitution of the United States and uphold the Laws of the State of Texas. The Constitution prohibits unreasonable search and seizure. The State of Texas has established laws that specify what property may be levied and the manner of execution. The Officer is no longer performing his assigned duties when he steps out of the scope of his prior duties to the Constitution and laws of the State.

GROUND FOR REVIEW THREE

THE APPELLATE COURT MADE ANALOGY TO CONVICTIONS FOR RESISTING ARREST. IS THE DEFENDANT "RESISTING" WHEN HE HAS GIVEN NOTICE TO THE OFFICER HE IS VIOLATING THE LAW?

The Laws of the State of Texas have attempted to more specifically provide for the preservation of the rights specified in the Constitution through it’s penal code, Section 9.31, entitled "Protection of Persons", which states;

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s use or attempted use of greater force than necessary.

GROUND FOR REVIEW FOUR

 

IS THE DEFENDANT "RESISTING" OR "INTERFERING" WHEN HE HAS CALLED HIS ATTORNEY AND ANOTHER POLICE AGENCY IN AN ATTEMPT TO DEFUSE AND PREVENT ESCALATION OF DISAGREEMENT WITH A LAW ENFORCEMENT OFFICIAL?

The Opinion of the 14th Court (Pg. 4) states: "Several States have eliminated either by statute or by judicial decision the common law right to resist unlawful arrest... as too great a threat to the safety of individuals and society to be sanctioned". And cites a case from the Texas Criminal Appeals Court dated 1995 as it’s authority. As evident by provisions of Sections 9.31 and 9.41 and defenses to criminal responsibility provided the Texas Penal Code in effect at the time of the offense; Texas was not one of these "several states". It is questionable that the Texas Court of Criminal Appeals intended for it’s opinion in State v. Mayorga, 901 S.W.2d 943, 945 to apply to Section 38.18.

DOES THE EXECUTION OF A WRIT TO LEVY PROPERTY PERMIT THE OFFICER TO DO POTENTIALLY IRREVERSIBLE DAMAGE TO THE PROPERTY HE SEEKS TO LEVY? DOES THE WRIT OF EXECUTION PERMIT THE OFFICER TO TAKE TRADE SECRETS AND INFORMATION VITAL TO THE FUNCTIONING OF THE JUDGMENT/DEBTOR’S BUSINESS? DID THE MANNER IN WHICH THE OFFICER EXECUTED THE WRIT CONSTITUTE A "REASONABLE SEARCH AND SEIZURE"?

Rights guaranteed by the Fourth Amendment to the United States Constitution provide:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Defendant's actions were to prevent potential irreversible damage to and potential theft of valuable, irreplaceable, proprietary information and trade secrets in his computer when Officer Godfrey stated it was his intent to disassemble the computer and seize it without affording Defendant the opportunity to protect or download the information. The writ did not "particularly describe" that the Officer was to seize the Defendant’s "hard disk", on which information is stored, from the computer. Furthermore; The laws prescribing the procedure for the levy of property provides for the Officer to first ask for cash the, if none offered, ask the Judgment/Debtor to designate property to be seized.

Defendant had the defense of Necessity as stipulated in Section 9.22 of the Texas Penal Code wherein:

"Conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and the urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law prescribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear."

DOES "DUE PROCESS" REQUIRE THE OFFICER TO COMPLY WITH THE RULES OF CIVIL PROCEDURE?

The Laws of the State of Texas have attempted to more specifically provide for the preservation of the rights specified in the Constitution through Rule 637, Texas Rules of Civil Procedure, governing the levying of property. It is Officer Godfrey’s "lawfully assigned duty" to comply with these rules. When Petitioner advised Officer Godfrey that he was not following the law for the execution of a writ Godfrey replied "I am the law". Does the Officer’s refusal to follow the Rules constitute a "denial of due process"?

ARE CITIZENS TO BE DENIED "EQUAL PROTECTION OF THE LAWS" WHEN CONFRONTED BY LAW ENFORCEMENT OFFICIALS? ARE CITIZENS REQUIRED TO SUBMIT TO THE WILL OF LAW ENFORCEMENT OFFICIALS REGARDLESS OF WHATEVER CONSTITUTIONAL RIGHTS AND LAWS HAVE BEEN ESTABLISHED?

Rights guaranteed under the Fourteenth Amendment to the Untied States Constitution provide:

...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws .

Defendant had several defenses pursuant to the Texas Penal Code Chapter 8, entitled "GENERAL DEFENSES TO CRIMINAL RESPONSIBILITY" sections 8.03 "Mistake of Law", 8.05 "Duress" and 8.06 "Entrapment". Pursuant to Subchapter B of the Texas Penal Code, entitled "JUSTIFICATION GENERALLY" defendant had additional defenses stipulated in Sections 9.21 "Public Duty", 9.22 "Necessity", 9.31 "Self-Defense" (a) and (b)(A), (b)(B), and (b)(c)(1)and(2). 9.41 "Protection of One's Own Property",

The Laws of the State of Texas have attempted to more specifically provide for the preservation of the rights specified in the Constitution through it’s penal code, Section 9.41, entitled "Protection of ones own property", which states;

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

IS A CITIZEN A "CRIME VICTIM" ENTITLED TO THE SAME PROTECTION GUARANTEED BY THE TEXAS CONSTITUTION IF THE ACTOR (PERPETRATOR) IS A LAW ENFORCEMENT OFFICIAL?

The arrest and prosecution of the petitioner has been carried on with the sole purpose and effect of harassing petitioner and of punishing him for knowing the laws of the State and to deter him from the exercise of his constitutionally protected rights.

The Defendant called the Houston Police Department and reported Godfrey’s assault. Defendant also requested the Harris County District Attorney take charges against Constable Godfrey. The assault, arrest, and conviction of the Defendant was for the purpose of charging the victim to protect the guilty because the perpetrator was a law enforcement official.

This is a violation of Article 1, Section 30 of the Texas Constitution entitled "RIGHTS OF CRIME VICTIMS" which provides:

(a) A crime victim has the following rights:

(1) the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process; and

(2) the right to be reasonably protected from the accused throughout the criminal justice process.

THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE APPELLANT’S CONVICTION FOR THE REASON THAT THE OFFICER WAS NOT PERFORMING HIS LAWFULLY ASSIGNED DUTY AT THE TIME OF THE ALLEGED OFFENSE AS STATED BY THE APPELLANT COURT.

The Brief of Appellant is incorporated herein by reference. The opinion of the Appellate Court states "Godfrey was performing one of his lawfully assigned duties, i.e., the execution of a writ". Godfrey also had a lawfully assigned duty to execute the writ in the manner set forth in Rule 637 of the Texas Rules of Civil Procedure. Defendant/Petitioner advised Godfrey of this lawfully assigned duty and called his attorney for his assistance and advice prior to the occurrence of the alleged offense. Therefore; at the time of the alleged offense Godfrey was no longer acting under his lawful authority. Godfrey’s choice to ignore the procedure required for the execution of a writ put him outside the scope of his lawfully assigned duties.

The opinion also states that "Ross told Godfrey he wanted to seize the computer in satisfaction of the judgment". This was not Godfrey’s "lawfully assigned duty". Rule 637 is very clear that the officer executing a writ must first allow the judgment debtor to point out the property to be seized. Should the judgment debtor avail himself of the right to select property to be levied on, then the officer must comply. 49 Tex Jur 3d, Levy and Seizure, Section 11, pg. 565. That the Defendant/Petitioner was aware of this right and complied is evident by the tape transcript of events and by the fact that Godfrey collected cash from him in full amount of the Judgment and costs. Godfrey’s primary lawfully assigned duty is to uphold the Constitution of the United States and the laws of the State of Texas. Ross did not want the money. He wanted to steal the information (trade secrets) the judgment debtor’s computer with Godfrey as his accomplice.

"The right to govern is reserved to citizens" and "Police officers do not govern but merely execute orders of authority". U.S. Supreme Court, 1977, 435 U.S.291

The tape provides incontrovertible evidence that Godfrey refused to comply with Rule 637 when requested by Defendant and began his attack on the Defendant within less than three minutes of his arrival at the Defendant’s office.

Texas courts repeatedly have held that although a jury is the finder of fact, it may not disregard uncontroverted evidence. See, e.g., Kennedy v. Missouri Pacific Railroad 778 S.W.2d 552(Tex. App. --Beaumont 1989, writ denied); 431, 434 (Tex App. ---Houston [1st Dist.] 1986) rev’d on other grounds sub nom.

Similarly, the appellate court must consider undisputed or uncontradicted evidence and

does:

"not [have] the right to disregard the undisputed evidence and decide such issue in accordance with [its] wishes." Texas & New Orleans Railroad v. Burden, 146 Tex. 109, 123, 203 S.W.2d 522, 530 (1947) referring to jury’s duty.

THERE IS INSUFFICIENT EVIDENCE TO AFFIRM APPELLANT’S CONVICTION FOR THE REASON THAT THE APPELLATE COURT

MADE AN ERRONEOUS ANALOGY TO CONVICTIONS FOR

RESISTING ARREST.

The opinion states "Although we are unable to find any authority that interprets section 38.18, arguments analogous to those urged by appellant have been held inadequate to avoid convictions for resisting arrest". This is a fundamental and egregious error. In the first instance the Defendant was not charged with "resisting arrest". In the second instance; should the court choose to view the attempted illegal seizure of the defendant’s computer as an arrest the Court must then grant the defendant the benefit of defenses provided by the penal code Sections 9.31 and 9.41. Defendant did not resist arrest of his person. When Godfrey advised Defendant he was placing him under arrest he submitted without incident

REASON FOR REVIEW THREE

THE EVIDENCE SUPPORTING THE CONTENTION THAT DEFENDANT "PUSHED" THE OFFICER IS SO WEAK AS TO BE CLEARLY WRONG AND MANIFESTLY UNJUST.

Defendant immediately called his attorney and the Houston Police Department when it became apparent Constable Godfrey intended to make an illegal seizure that would have caused irreparable harm. In fact; It was after the Defendant picked up the phone to call Building Security and the Houston Police Department that Godfrey attacked the Defendant. The Defendant was standing with a phone in his hand and was speaking to HPD at the time the alleged "pushing" took place. This is evident in the transcript of the tape of the incident. In fact; It was Godfrey who was pushing the Defendant in an attempt to get him off the phone.

At trial the Defendant, Steven Ivy, and Officer Godfrey, all testified the alleged pushing by the Defendant consisted of his "standing sentry", standing firm, in response to Godfrey’s attempt to move the Defendant from his position protecting the computer. Only Ross, whose credibility is questionable, testified to any actual pushing by the Defendant. Ross’s testimony is contrary to that evident from the transcript of the taping of the event.

THERE IS INSUFFICIENT EVIDENCE TO AFFIRM APPELLANT’S CONVICTION FOR THE REASON THE APPELLATE COURT HAS MISCONSTRUED THE PURPOSE OF 38.18. IT WAS NOT THE INTENT OF THE LEGISLATORS TO OVERRIDE THE CONSTITUTION AND OTHER LAWS OF THIS STATE.

The Texas Constitution, in addition to Article 1, Section 9, restatement of US Constitution’s Fourth Amendment, states in Article 1, Section 19, entitled "DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW";

"No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land".

Article 1, Section 29, of the Texas Constitution, entitled "PROVISIONS OF BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT; TO REMAIN FOREVER INVIOLATE" states; "To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions shall be void".

The opinion of the 14th Court, in effect, provides that Section 38.18 allows Officer Godfrey to disfranchise the Defendant of his property and liberty without "due course of the law of the land". The Opinion ignores the "provisions of bill of rights excepted from powers of government; to forever remain inviolate". Section 38.18, in this instance, is a "law contrary thereto" and is void.

THERE IS INSUFFICIENT EVIDENCE FOR CONVICTION OF THE DEFENDANT FOR THE REASON OF CONSTITUTIONAL AND LEGISLATIVE DEFENSES THAT BAR PROSECUTION. DEFECTIVE JURY CHARGE.

The trial court erred in failing to respond to defendant's timely objection in failing to charge on self defense. Defendant's attorney filed a request for special instructions to the jury to decide on these defenses.

In 488 SW2 420 Gavia "When a defensive theory is raised by evidence from any source and a charge is properly requests, it must be submitted to the jury. It is then the jurors' duty, under the proper instructions, to determine whether the evidence is credible and supports the defense."

In 489 SW2 625 Emmons; "Appellant's counsel timely objected to the failure of the court to charge on appellant's right to defend himself against a milder or lesser attack, failure of the court to respond to his request calls for reversal."

In 492 SW2 592 Garcia; "Although the trial court instructed jury on defensive theory of "accident" she was also entitled to an instruction on the law of self-defense, when evidence raised issue as to whether she was defending herself against an unlawful attack, real or apparent, giving rise to a reasonable apprehension of losing her life or suffering serious bodily injury.

"Booth v. State" (679 S.W.2d 498,500) "If a defensive theory is raised, and the trial court is timely and properly requested to instruct the jury on that theory, the trial court must instruct the jury on the raised defensive theory. It is the trier of the facts, and no one else's, who has the responsibility to decided whether to accept or reject the defensive theory."

THE COURT HAS SO FAR DEPARTED FROM THE USUAL COURSE OF JUDICIAL PROCEEDINGS, AND SO FAR SANCTIONED SUCH DEPARTURE BY THE LOWER COURT, AS TO CALL FOR AN EXERCISE OF THE COURT OF CRIMINAL APPEALS POWER OF SUPERVISION.

The lower court made numerous errors, including but not limited to, allowing case to be heard by a disqualified jury, admittance of inadmissible evidence, admittance of inadmissible testimony, erroneous argument by the state and defective jury charge jury without instructions on defenses of the Defendant.

DISQUALIFIED JURY

The jury was disqualified. The statutory list of disqualification’s for particular cases is set forth in Section 62.105 of the Government Code. It states in part;

person is disqualified to serve as a petit juror in a particular case if he;

2) is interested, directly or indirectly, in the subject matter of the case;

4) has a bias or prejudice in favor of or against a party in the case.

A juror in the trial, Armando P. Vela, stated his son is a police officer in Humble, Texas. During the trial the Defendant stated he had called Houston Police Department and requested charges of assault be taken against the Deputy Constable Godfrey.

In closing argument the Assistant District Attorney, Baldwin Chin went into the pews and put his arm around Officer Godfrey and stated to the jury they had a choice to make between the Defendant and a law enforcement official with 25 years of service. In effect, the juror chosen as jury foremen, and whose son is in law enforcement, was put into a biased and prejudicial position of choosing between his son's profession and the Defendant. The argument was incurable by it's nature, degree and extent.

The argument was erroneous as a misrepresentation of the factors that a jury may consider in reaching it's decision. (Younger Brothers, Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546, 549 (1959); World Wide Tire Co. v. Brown, 644 S.W.2d 144, 146 (jTex. App.--Houston (14th Dist.) 1982, writ ref'd n.r.e.))

PREJUDICIAL EVIDENCE - UNRELATED CONVERSATIONS

The trial court erred in refusing to grant appellant's motion to exclude extraneous circumstances. (436 SW2 146 Chaterfield) The state called Deputy Constable Georgette Lee to testify. Defendant's attorney objected to this surprise witness of whom he had been given no prior notification. Although the court sustained his objection the jury given, as evidence to consider, a written by Georgette Lee, regarding her contact with the Defendant over one year prior to the occurrence of the incident that gave rise to the charges against the Defendant.

ERRORS ARISING FROM PROOF OF "REPUTATION"

The trial court erred in permitting the State, over appellant's objection, to inject his general reputation before the jury, when he had not placed such reputation in issue: 45 SW2 219 Craven, 174 SW2 974 Walker, 194 SW2 101 Harris.

The state called Marcie Ferguson, secretary to the building manager of the office in which appellant's business is located. The state asked Ms Ferguson to testify if she had been able to form an opinion of Defendant's truthfulness. Said Defendant has been less than truthful. On cross examination was revealed her opinion of truthfulness was based on Defendant's inability to pay rent on time or when promised after the incident that gave rise to the charges against the Defendant. Defendant's inability to pay timely rent result of disruption of his business caused by his arrest.

Rule 405 of the Texas Rules of Criminal Evidence entitled "METHODS OF PROVING CHARACTER" stipulates that "to be qualified to testify concerning the character or trait of character of an accused, a witness must have been familiar with the reputation, or with underlying facts or information on which the opinion is based, prior to the day of the offense." Marcie Furgeson testified her opinions were based on Defendant's inability to pay rent when promised after the day of the offense. Eric Pettorino had come under the sponsorship of defendant's broker's license the month of the offense and had not an opportunity to develop his opinion of the defendant's character until after the date of the offense.

During closing argument Assistant District Attorney repeatedly called the defendant a "foot dragging, deadbeat, liar". A false and prejudicial characterization and unrelated to the charge against the defendant. The defendant was not charged with the crime of not paying his bills in a timely manner, nor with the crime of being a deadbeat, or with lying. It is an erroneous conclusion to state that being a "foot dragging, deadbeat, liar" makes one guilty of impeding a public official in the exercise of a duty granted by law.

INADMISSIBLE EVIDENCE

Rule 602 entitled "LACK OF PERSONAL KNOWLEDGE" states "a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he had personal knowledge of the matter". The honesty or integrity of the Defendant was not subject matter of the trial. The defendant was not charged with a crime involved moral turpitude. The offense charged was impediment. Neither Marcie Ferguson, Eric Pettorino, John Boone or Betty Kristoferson were present at the time the alleged offense of interference with the duties of a public official occurred. Yet; The state called all four as witnesses to testify upon their opinion of the Defendant. The Defendant never denied having moved his computer or preventing the public official access to the computer. Therefore there was no need for the prosecution to attempt to impeach defendant's testimony.

PARTICIPANT'S STATEMENT

Erroneous questions. Assistant District Attorney asked Ross if he knew Defendant to fancy himself as a legal authority. Asked Ross his opinion of the Defendant to which he answered "He does not deserve to practice real estate. He is an immoral person who cheats people".

Rule 404 of the Texas Rules of Criminal Evidence entitled "CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES". Yet; the Assistant District Attorney's case was built, almost entirely, on painting for the jury a false and negative image of the Defendant's character. Furthermore; The character traits described by the prosecution were designed to prejudice the jury against the defendant but were not character traits that proved he acted in conformity therewith on the particular occasion for which he is charged. Character traits of dishonesty or slow paying of bills does not correlate with impediment of the duties of a public official.

GENERAL DEFENSES - JUSTIFICATION GENERALLY

Defendant was had several defenses pursuant to the Texas Penal Code Chapter 8, entitled "GENERAL DEFENSES TO CRIMINAL RESPONSIBILITY" sections 8.03 "Mistake of Law", 8.05 "Duress" and 8.06 "Entrapment". Pursuant to Subchapter B of the Texas Penal Code, entitled "JUSTIFICATION GENERALLY" defendant had additional defenses stipulated in Sections 9.21 "Public Duty", 9.22 "Necessity", 9.31 "Self-Defense" (a) and (b)(A), (b)(B), and (b)(c)(1)and(2). 9.41 "Protection of One's Own Property",

DEFENSE OF DURESS

Defendant had the affirmative defense of Duress as stipulated in Section 8.05 of the Texas Penal Code. The Defendant engaged in the proscribed conduct because he was compelled to do so by the threat of imminent serious bodily injury to himself by the sharp object (screw driver) held by David Ross to his left when Godfrey was attempting to push defendant in that direction.

DEFENSE OF ENTRAPMENT

Defendant had the defense of entrapment as stipulated in the Texas Penal Code Section 8.06. The defendant engaged in the conduct charged because he was induced to do so by Godfrey's use of means likely to cause persons to commit the offense.

SUMMARY

 

For this State to affirm the conviction of the Defendant/Petitioner would entirely negate the authority of the Legislative branch of Texas government. All Law Enforcement Officials would become "the law" rather than that established and codified by the People of the State of Texas by and through their elected representatives. For this State to affirm the conviction of the Defendant/Petitioner would be a statement to all Police Officers that they are free to exercise their duties in whatever manner they may individually choose.

In his action E. Wilburn Godfrey displayed a complete and total lack of respect for authority. The actions of those who have protected E. Wilburn Godfrey from his criminal and civil liability is similarly a display of lack of respect for authority. The authority of the both the U.S. Constitution and the Texas Constitution, and the authority of the Texas Legislature in it’s authorship of the Texas Penal Code and the authors of the Rules of Civil and Criminal Procedure.

WHEREFORE, Appellant respectfully request that this Honorable Court of Appeals reverse his conviction and remand this cause to the Trial Court to enter a judgment of acquittal, alternatively for a reversal and remand for a new trial and for such other and further relief to which Appellant is justly entitled.

Respectfully submitted,

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Edmund Bryan Heimlich, Defendant Pro Se

3823 Cedar Gardens

Houston, TX 77082 (713) 496-2119

I HEREBY CERTIFY that a true and correct copy of the above and foregoing was delivered to the Assistant District Attorney, 201 Fannin, Houston, Texas 77002, by leaving a copy of Petition for Discretionary Review in the District Attorney’s pick up box at the Court of Appeals in accordance with the Texas Rules of Appellate Procedure this

_2nd_ day of September, 1996.

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Edmund Bryan Heimlich, Defendant pro se