May 19, 2011

On the afternoon of May 19, 2011, I went outside of my apartment on W. Anderson and Waco St.. in Weatherford, Texas, and headed toward the trash dumpster located beside the parking lot.  I was taking MEDICATION, and I had consumed alcohol.  In the parking lot I was confronted by the neighbors I had been having problems with (see posts below)  .There was a confrontation which led to some yelling.  Other neighbors that I have never met, D. Babbit and his wife, heard the noise and came to the parking lot to help.  Mrs. Babbitt decided to call the police.  Mr.Babbit was telling me that I should just go inside.

When the police arrived, I began to return to my apartment where the door was standing open.  I was approached and stopped by Officer Chris Beniak  (SEE FEBRUARY 10)  who began demanding I.D.   I said that I should return to the apartment before producing I.D.  Beniak became angry.   Mr. Babbit was standing right beside me, and convinced me that  I should just show I.D. and then go inside. 

Beniak was irritated and aggressive because I had delayed in producing my I.D.  He attacked me.

I gave my I.D. to Beniak and stood waiting.   As I stood waiting, I was never told that I was under arrest or that I was being searched.  Beniak did not attempt to pat me down for weapons as he claimed, he aggressively grabbed me.   His irritation boiled over and he suddenly assaulted my arm, grabbing it forcefully and jerking me.  This startled me and I tried to back away and release my arm.   I flailed about and did not strike Beniak which was affirmed by Mr, Babbit.  Beniak threw me to the ground and another officer ran over to join in while I was handcuffed.

Beniak then made a conscious decision to over charge me with Assault of a Public Servant with Bodily Injury. which is a third degree felony. He also charged me with resisting arrest.

I never assaulted Chris Beniak. I was assaulted by Beniak which he is legally able to do, but the level of violence he used against me was completely unnecessary.  He never attempted to "search" me as he would claim, he grabbed me and jerked me, and at no time had I been told that I was under arrest.

Beniak coerced the Babbit's to write statements, but Mr. Babbit who was standing next to me did not write that I struck Beniak in his statement because I did not.  Mrs. Babbit, who was behind Beniak talking to others and could not see, wrote her statement more in conformity with what Beniak wanted.

After I went to jail, my parents went to retrieve my things from the apartment;  Mr.Babbit saw them and came to  speak with them. He told them what had happened, and he told them that I flailed after being grabbed, but I DID NOT hit Beniak, he simply threw me on the ground.


It was not my conscious objective or desire to engage in the conduct in question. The conduct in question was an immediate reaction to being grabbed and jerked, it which was a startled reflex.  I was startled and reacting to an unexpected painful grasp on my arm.

I was never aware that the conduct was certain to cause the alleged result.  I did nothing which would be an assault or cause a bodily injury.  The alleged result, a bodily injury, did not occur, and I never engaged in conduct certain to cause a bodily injury.

I did not consciously disregard a substantial and unjustifiable risk. I was not taking ANY risk.  I was trying to release my arm from an unprovoked attack.

Beniak claimed bodily injury to his arm.  There was no bodily injury.  He later tried to justify his attack on me by claiming he was doing a "terry search".  He never tried to do a search.  Beniak was irritated and aggressive because I had delayed in producing my I.D.  I had wanted to return to my apartment, which annoyed Beniak  - who knew and disliked me.  He also wrote in one of his reports that he "assisted" me to the ground. There was no assistance.  He was overly aggressive and dishonest.

Beniak's excessive use of force was done in an unconstitutional manner.

I did not assault Chris Beniak. I did not cause any bodily injury to Chris Benaik.

February 10, 2011

In February of 2011, I signed a 6 month lease on an apartment in Weatherford.  On February 10, 2011, I drank a lot and played loud music, enjoying my new place.  It never crossed my mind that I might disturb someone around me, I'm not accustomed to these sort of apartments.

Someone called the police for noise.  Christen Beniak came to my apartment, came inside, roughed me up a bit and took me to jail.

May 3, 2011

On May 3, 2011, at around 3 a.m. there was a loud pounding at my door.  I opened my door and a Hispanic male pointed his finger into my face and threatened me.  Then he immediately walked off.  So I followed him.  He went into the apartment directly under mine.  I realized that he had just made threats against me in the middle of the night.   I decided that calling the police would be the best thing to do.  I called 911 and reported that a neighbor had just banged on my door in the middle of the night and threatened me.  I stood downstairs waiting so I could show the officer which apartment it was.  

When the police car arrived, the male and another female came outside and approached the officer, apparently they had been looking out.  They started speaking Spanish.  I tried to tell the officer that I was the one who called, and he pointed at me and said, "shut up, do you want to go to jail?"    I returned to my apartment.  I called 911 again to report that the hooligan I called in about and the responding Hispanic officer were speaking Spanish and I was being threatened with jail, a non-Hispanic officer was needed.  The 911 operator stated that an officer was already there and promptly hung up.  So I called again and again was hung up on.  Meanwhile the parking lot filled up with police cars.

Shortly, there was knocking at my door, so I put the chain-lock on which only allowed the door to open a few inches and opened the door.   Several officers were standing there and I spoke to them.  After we spoke the officers left.  I turned the lights off in that part of the apartment and went to my bedroom.

From my bedroom I could see lights shining all over the next room from the window.  I went to the window to see what it was, and several police cars from the parking were shining lights up at my window.  I opened the window (with the screen remaining attached) and yelled, "Go find some criminals!  Go away!"  Then I returned to my bedroom.  The lights remained off.

A few moments later, I heard noise and came out of the bedroom to see someone crawling through my window in the dark.  He removed the screened and crawled in.  I could tell it was a policeman and was completely confounded.  I was bewildered.   I just stood there in disbelief watching him crawl in and said, "what are you doing?"  It took him a few moments to crawl in and I again said, "what are you doing?"   As soon as he was in he rushed up to me and grabbed my arm and said, "you pissed us off."

It was the Hispanic officer who had arrived first.  I did not resist at all, not wanting to give any reason for a charge.  I was still in shock and thinking that the entrance was illegal, and there was no grounds for detaining me.  He handcuffed me and led me to the door.  When it opened I could see several officers standing there looking excited and full of adrenaline.  They seemed to have blood-lust in their eyes, a strange sort of expression and a vacant intense gaze.  I asked what this was for as I was led out, but no one spoke.  It was strange.

I was led to a police car, where I sat for a long time.  Several police cars were in the parking lot.  Finally, one of them returned to the car.  I asked what in the world I was under arrest for.  He replied that it was public intoxication. That was odd because I wasn't drunk, and I hadn't been in public.

Do police normally break into someone's house in the dark to arrest them for a class c ticket, public intoxication?   

 The officer who arrived first and then crawled through my window is Cristobal Meza.

Appointed counsel

On May 19, 2011, I was charged with Assault Of A Public Servant With Bodily Injury under Texas Penal Code 22.01(b)(1), as well as Resisting Arrest under Texas Penal Code 38.03, by Weatherford police officer Chris Beniak - who I had previously had contact with on FEBRUARY 10, 2011 and he may or may not have been present on MAY 3, 2011.

Assault Of A Public Servant With Bodily Injury is a 3rd degree felony which was handled in the 415th district court in Parker county, Texas, under judge Graham Quisenberry.

I was unable to bond out of jail.  On May 27th, 2011, attorney at law Richard Alley was appointed to represent me. I received a notice from the court, and also a letter from Richard Alley's office to inform me. SEE HERE

I immediately began writing Richard Alley to describe what had happened and to indicate that I was not guilty, that I had been overcharged.  I demanded a jury trial.

I was able to use a law library at the Parker County jail, which was incredibly helpful to me.

I was served a copy of indictment at the jail by a deputy on July 6, 2011. It alleged that I caused bodily injury to Christen Beniak's arm by striking his arm with my hand.

On July 12, 2011, I received a copy of notice of Arraignment from Richard Alley's office and the next day I received a copy of Waiver of Arraignment which had been filed.  SEE HERE  I received no acknowledgment of the letters I had written.  For some reason, on July 13, 2011.  I received another letter from Richard Alley's office with the same copies.  SEE HERE 

On July 21, 2011, I received a one sentence letter from Richard Alley's office with a copy of the indictment and a print out of an email sent from the D.A.s office to Richard Alley.   SEE HERE  The email stated that there was a CD-R of evidence in the case and a copy was available to pick up. It also stated that the states offer in the case was "enhance to second degree with prior out of state felony - 15 years."

I only have one prior felony: DWI from South Carolina in 2003. I did not go to prison for that, and have never been to a penitentiary anywhere. There was no enhancement paragraph on the indictment. I was prosecuted by Nikki Morton, assistant D.A., Parker County, Texas.

I wrote to Richard Alley asking him to prepare a defense. I was overcharged. I did not assault Chris Beniak, much less cause a bodily injury. Beniak claimed that I struck his arm, but a witness stated that I did not strike Beniak - SEE MAY 19   I was wobbly, and unsteady, when he forcefully grabbed my arm with out warning. When I reacted he threw me to the ground, as he had done once before  SEE FEBRUARY 10

According to the Texas Penal Code 2.01 each element of a offense must be proved beyond a reasonable doubt. The offense of Assault Of A Public Servant with bodily injury under the Texas Penal Code 22.01(b)(1) has the elements of bodily injury to a known public servant performing their duty, and causing the bodily injury either intentionally, knowingly, or recklessly- which means doing it on purpose or purposely disregarding a legitimate risk (according to Texas penal code 6.03 ).

I wrote to Richard Alley that a witness spoke to my parents at the apartment (they went to pack up my things), and he told them when the officer grabbed me I flailed but did not strike the officer, who  threw me to the ground. The witness was standing right beside me when this happened. The witness told my parents that I did not strike the officer.

I wrote about the incidents involving the Weatherford Police at my apartment building; including February 10; and May 3; as well as May 7, when I reported the same neighbors for loud noise; and May 9 or 10 when I reported the same neighbors for threatening me in the parking lot as I went to the dumpster. I suggested that these records might be part of a defense. There was a pattern of unfair treatment and bias by the Weatherford Police. This also indicated the type of environment I was living in, which was stressful and hostile.

I repeatedly asked Richard Alley to come see me. I repeatedly asked to know about the evidence against me. I repeatedly asked about the contents of the CD-R.

None of my letters were ever answered.

On August 10, 2011, I received a one sentence notice from Richard Alley's office (twice) with the courts scheduling order:
09/08/11 at 9:00 AM pretrial
10/11/11 at 9:00 AM plea negotiation
10/24/11 at 9:00 AM jury trial
SEE HERE
 

I wrote to Richard Alley that I wanted a Pretrial Hearing. I wrote that I wanted to exercise all of the rights and protections available in the law and that I do not waive the Pretrial Hearing provided by Texas Penal Code Pro Act 28.01- and that I wanted to file motions, including:

request for notice of intent to introduce evidence in the manner required by rule 404(b) Texas Rules Of Evidence;

motion for discovery and inspection for any evidence not included in the open file policy;

motion for production of Brady material, which could be any material that might be helpful to me, especially police dash cam video;

 I wanted to file an election to have the jury assess punishment;

 and to file anything else which might be helpful.

I also asked my parents to go to Mr. Alley's office to tell him I wanted a Pretrial Hearing, to tell him about the witness, and to find out what was going on.  My parents delivered the list of motions I requested.

My parents went back to see the witness to ask for a statement and unbelievably he moved.  I wrote to Richard Alley about the witness moving. I had already written about the witness being right beside me when I was arrested, and his conversation with my parents.

On August 25, 2011, I received a one sentence letter from Richard Alley's office with a copy of an email from Nikki Morton at the D.A.'s office to Richard Alley that the plea had been reduced from 15 years to 6 years.  SEE HERE

When September 8th arrived I prepared to go to the Pretrial Hearing... but nothing happened and I did not go... I continued to write Richard Alley.

I was able to read some case notes about assault of a public servant, and I read that evidence should be presented for the record which refutes that the officer was injured. I read in the Texas Criminal Practice Guide 61.09 and 61.50 about defense use of an expert witness. I wrote to Richard Alley asking him to file for a medical expert to testify about bodily injury, and the lack of any bodily injury. Richard Alley never responded.

On October 4, 2011, I received a letter from Richard Alley's office with a copy of a plea negotiation docket form along with a one sentence reply to everything I had written.  SEE HERE  The prosecutor refused to treat this as a misdemeanor. The plea bargain was 6 years.

In reality the only thing I was possibly guilty of was public intoxication and disorderly conduct.

I asked my parents to go to Richard Alley's office several times. Richard Alley had my parents write a letter of support for me and bring it to his office. The purpose was unclear. I repeatedly made it clear that I was not guilty of a felony and wanted a jury trial. It seems to suggest that the purpose of the letter was to negotiate the worth of the defendant rather than the facts of the case.

I specifically asked in writing, multiple times, for a Pretrial Hearing, as is available by law. I specifically asked for a Brady motion to be filed, for exculpatory evidence (such as the dash cam video, which never appeared); for a motion for notice required under Tex.R.Evid 404(b) for extraneous conduct notice; for a motion for Discovery and Inspection to access all evidence and information not made available by the open file policy; and for any other helpful motions.

I also sent my parents to Richard Alley's office to ask for these. My parents wrote these motions down on paper at our visitation, and went to his office afterward.

I wrote to Richard Alley to file a request for an expert witness, as covered in the Texas Criminal Practice Guide, to provide medical testimony about bodily injury, evidence of bodily injury, lack of evidence, etc.

Richard Alley failed to set the Pretrial Hearing as I repeatedly asked to have as my right under the law.


Richard Alley:

1. FAILED to set the Pretrial Hearing

2. FAILED to file the motion for exculpatory evidence

3. FAILED to file the motion for notice of State's intent to introduce extraneous conduct evidence

4. FAILED to file the motion for Discovery of Evidence   (to access any evidence not released under the open file policy)

5. FAILED to file the motion for an expert to provide testimony.

6. FAILED to interview the witness.

7. FAILED to inform me about the evidence against me.

8  FAILED to answer any of my questions, and FAILED to meet with me as I repeatedly requested.


He failed to prepare any defense, as I made it repeatedly clear that I wanted to exercise my right to a jury trial because I am not guilty.

I never saw Richard Alley who was appointed on May 27, 2011 until...

OCTOBER 11, 2011:   I met Richard Alley for the first time when I was taken to the Parker County Courthouse in Weatherford.  He presented me with a plea bargain to plead guilty for 6 years in the Texas Department of Criminal Justice Institutional Division.  He suggested this was "a good deal". I have never been to a penitentiary anywhere.  And I did not strike Chris Beniak or cause any bodily injury whatsoever to his arm or anything else.

I declined the offer, signing to refuse the plea bargain.  I once again made it clear that I wanted a jury trial, and proceeded to ask questions and for advice.  Richard Alley was cross and short with me, often interrupting.  When I asked about the Pretrial Hearing he simply said, "We are not doing that''

I was told a joke about three people sentenced to death in an electric chair that didn't work, and the third one said, "You know, that would work a lot better if you plugged in that cord"- to suggest that I should not try to participate in my own defense because I would make the outcome worse.  He was clearly annoyed that I did not plea guilty, and had no interest in preparing a defense.  He claimed not to know who the witness standing right beside me during the incident was - the same man who had spoken to my parents when they packed up my apartment.

Alley told me repeatedly that I would lose a trial and receive the maximum of 10 years in prison.

He had no idea about the contents of a CD of evidence the prosecution made available (see letters).

I was dismayed by our meeting, which he had hurried to end.  After he left I realized that he had no interest in providing an adequate defense for me if I did not plea guilty.  I informed the bailiff that I needed to terminate my counsel, so that was scheduled with the court.

415th district court

OCTOBER 13, 2011:   I was taken to the Parker County Courthouse to appear in the 415th District Court in front of District Judge Graham Quisenberry.  Graham Quisenberry refused to allow me to terminate counsel.  THIS APPEARANCE IS ON RECORD.  A device in the court room was recording audio.

I was brought into the courtroom, where Judge Quisenberry asked why I was there.  I began stating that, with all due respect, I needed to terminate counsel because he was not representing my interests.  Quisenberry asked me why, and I listed the reasons: Richard Alley had not met with me, had not made me aware of any evidence, had not responded to any of my eleven letters, had not set the Pretrial Hearing, and had not spoken to the witness...

Richard Alley then asked to respond.   He stated that he was "well aware of the evidence in this case".... so I asked, "Then what is on the CD?"   Alley responded, "I am not going to lay out the states entire case right here".... and went on to say that he had read my letters, had met with my parents, and tried to make me sound silly for for asking for a medical expert to testify while conveniently leaving out all the other pretrial matters.   He tried to make the witness sound as some unknown person, when in fact the witness was D. Babbit who had written a statement which also contained his cell phone number - I was not yet aware of this.   Richard Alley testified against me and my interests in open court, which seems incredibly bizarre.

The prosecutor, Nikki Morton, stood up to say that if I didn't take the current offer (six years in the Texas Penitentiary) that it would be "taken off the table".   The atmosphere became threatening.

Because of Richard Alley's indignant tone, I began my response with, ''I am not trying to cause offense...'' at which point Quisenberry interrupted and told me not to say that.

Quisenberry held up a paper which seemed to be the things Alley had billed for, and knowingly said to Alley, '' I assume you've done these things?''  Alley pleasantly affirmed.

Richard Alley changed the subject to say that the a polygraph test had been offered by the prosecution.  Quisenberry then asked me, "Will you take the polygraph test?''  Quisenberry, Nikki Morton, and Richard Alley all glared at me.  I stated that "I can't answer that right now'' as this was suddenly thrown at me in this hearing to terminate counsel.

I found myself in the bizarre position of being challenged by a team of three associates: Morton, Quisenberry, and the so called defender Richard Alley.

At one point Quisenberry grilled me, "Why do you want a pretrial hearing?"  I tried to answer the questions as best I could.   At one point I spoke about what actually took place with Chris Beniak and I would later find out Morton mistook what I said.

At the end of the exchange, Quisenberry decreed that Richard Alley would remain as my attorney, and in an irate tone said that if I didn't like it I should ''write to my state legislator.''

After exiting the courtroom, I was able to meet with Richard Alley, which was our second meeting.  I signed a form to agree to take the polygraph test.   SEE HERE   Then I asked about the contents of the CD, hoping in vain for the dash cam video.  Alley told me that he didn't know if any video was on the CD, he would have to check back at his office.  He had lied in the court room, claiming he was "well aware of the evidence in this case.''

I came to the sickening realization that I could not receive a fair trial in Parker County Texas.

Richard Alley did agree to finally come to the jail to show me the evidence against me, as I had been asking for four and a half months.

But he refused to show me the CD.  He claimed that he was not permitted to show CD evidence in the jail.  Other jail inmates told me that their attorneys would routinely display evidence on CDs using a lap top...  one in particular described watching dash cam video of a car chase he was in.  When I mentioned that attorneys had been displaying CDs to defendants in jail using laptops, he got angry and claimed he did not have a laptop.  He claimed he did not have access to a lap top, after claiming that displaying evidence on laptops was not permitted in jail.  Richard Alley is a liar.

The following week Alley came to show me the evidence against me which consisted solely of the reports written by Chris Beniak, and the statements that Beniak had Mr. and Mrs. Babbitt write.

I was informed that the CD contained audio of the 911 call placed by Mrs. Babbitt, and dash cam video of me being arrested the year before in Granbury, TX.  Apparently this proves that Chris Beniak was assaulted.  The dash cam video from May 19, 2011, which would have proven my innocence of assault, was kept hidden.

I realized that the man standing beside me during the incident - who had spoken to my parents when they packed up my apartment and told them I did not actually strike Beniak - was the man who had written the statement, D. Babbitt.  His wife had called 911 because of the disturbance.  She also wrote a statement, more in conformity with what Beniak wanted.

What would D. Babbitt say in court?  Would he testify to what he told my parents: that I never actually struck Chris Beniak?

Richard Alley never found out. He refused to contact the witness.

OCTOBER 24, 2011:   I was again taken to the Parker county courthouse.  Richard Alley presented me with a plea bargain for four years in the Texas Department of Justice Institutional Division - the Texas Penitentiary.  He said that I must sign it, or start picking a jury immediately that day.  I asked if he had spoken to D. Babbitt to find out what he would say in court, he had not.  I asked to delay accepting or rejecting the offer until knowing what the witness would say, but Alley refused.

I once again reiterated that I never assaulted Chris Beniak.  I asked Alley to at least call the witness - his phone number and contact info was on the statement - he refused.  He refused to find out what the witness would say in court, and pressured me to either sign the plea or prepare to pick a jury.

Alley told me that the testimony of the witness was not going to ''spring me'' as if I were a criminal looking for some technicality to get me out of something I had done.

I asked about the polygraph test, which I had agreed to take.  Alley said it had been canceled and gave me a vague answer about it not being necessary.  I asked why.  Alley became more and more impatient and unpleasant... it was not admissible in court anyway.

I said that I could not plead guilty to something I had not done, then Alley got up and stormed out with out saying anything.

Alley informed me several times that the outcome of a trial would be a conviction and maximum sentence of ten years. 

I discussed my situation with the other defendants who were waiting that day and they made it perfectly clear to me what I already knew:  I had a choice of either 4 or 10 years, regardless of the truth and regardless of everything else.

Evidence, witnesses, polygraph tests - none of it mattered because the decision had already been made and there would be be no fair trial or search for the truth in the 415th District Court.

Panic set in as I considered the difference between 4 years and 10 years. I realized that I was going  to be railroaded into prison. The other defendants convinced me that I should take 4 rather than 10. I briefly considered the difference between an appeal and exploring what legal options are available for a complaint against Richard Alley and possibly Judge Quisenberry and for some post conviction relief... and I considered that if all else failed, how could I go home the fastest. Ten years and an appeal versus 4 and researching other options.

I asked the guard to please go get attorney Richard Alley so that I may sign the plea bargain.  Richard Alley returned and I signed the plea. 

To finalize the deal, an appearance before the District Judge is necessary. The defendant pleads guilty in court.

THIS APPEARANCE IS ON RECORD.   Again there was a device in the courtroom recording audio.

I was taken into Judge Quisenberry's courtroom, where I waited in the jury area with other defendants who were pleading guilty. When my name was called, Richard Alley and myself went to the defense table. Nikki Morton, who had been strolling about the courtroom talking with clerks or court personnel, went to the prosecution table with another prosecutor.

Judge Quisenberry went through the customary procedure, asking the questions which must be answered by the defendant. He came to the question ''are you pleading guilty because you are guilty of what is alleged in the indictment?'' I did not answer. I could not bring myself to say I had done something that I had not done. Quisenberry explained the question, and then read the indictment to clarify. I remained silent. Then I blurted out ''the only thing I am guilty of is making the officer angry. I did not strike the officer and I did not cause bodily injury.''

Nikki Morton immediately said that she wanted to charge me with Aggravated Perjury and asked if I was sworn in.

Richard Alley asked to go off the record to advise the defendant. He then told me that aggravated perjury is a second degree felony punishable by twenty years in prison (it is actually a third degree felony) and I had better say I was guilty to save the plea bargain.  He advised me to perjure myself, to say I did something I did not.

In the climate of urgency and danger, with the threat of twenty years in prison (which I have since realized is bogus) I did what Morton and Alley wanted.

Richard Alley announced ready to go back on record, and he proceeded to assume the judges role in asking the questions to which I gave the answers as instructed. The injustice done by the 415th District Court against me was complete.

Laws alone cannot make a just society. Enforcement of laws and prosecutions must be tempered with decency. This case was unjust.

I was denied an adequate defense.

I tried to discharge Richard Alley, but was prevented from doing so by Graham Quisenberry.  I found myself facing a jury trial with an attorney who failed to prepare any kind of defense and had assured me that a trial would result in conviction and receiving maximum sentence. 

I did not assault Chris Beniak and I did not cause a bodily injury to him.