PD-0921-18 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/5/2018 5:53 PM Accepted 10/9/2018 11:29 AM DEANA WILLIAMSON PD-0921-18 CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS filed COURT OF CRIMINAL APPEALS 10/9/2018 MICHAEL BUCK, DEANA WILLIAMSON, CLERK

Petitioner/Appellant Eighth Court of Appeals No. 08-16-00294-CR vs. Appeal from the 243rd Judicial District Court of El Paso County, Texas THE STATE OF TEXAS, TC No. 20160D01234 Respondent/Appellee

MOTION TO STRIKE AND SUBSTITUTE APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOW Michael Buck and files this motion to strike his Petition for

Discretionary Review as a nonconforming document and substitute the PDR filed

(on August 29,2018) by Nicholas Vitolo pursuant to Rule 9.4(k). Tex. R. App. Pro.

9.4. In support of this motion, counsel would show the Court the following:

A "pro se" PDR was filed and rejected on August 29, 2018 in the above

case. The PDR was resubmitted and accepted the next day. This "pro se" PDR

was efiled and purportedly signed by Michael Buck. Infact, Michael Buck did not

prepare or sign this PDR. (see AFFIDAVIT, attached). If the PDR were truly pro

se, it would violate 9.1(b) as Buck did not actually sign it. Tex. R. App. Pro. 9.1. II.

Undersigned counsel filed a PDR on behalf of Michael Buck on August 29,

2018. This Court rejected this PDR because the Court had already received the

above mentioned "pro se" PDR.

Undersigned counsel discussed the matter with a Staff Attorney at this Court,

who advised that the Court would accept counsel's PDR instead of the "pro se" PDR

if Michael Buck provided a specific and signed statement to that effect. The attached

AFFIDAVIT of Michael Buck asks that this court accept undersigned counsel's

PDR and consider it in place of the "pro se" PDR.

III.

WHEREFORE, Mr. Buck prays the court will grant this motion to strike the

non-conforming PDR and accept the previously submitted PDR from undersigned

counsel. Tex. R. App. Pro. 9.4,

Respectfully submitted,

EL PASO COUNTY PUBLIC DEFENDER

BY: /s/Nick Vitolo NICHOLAS C. VITOLO Assistant Public Defender . • SBN. 24084526 500 E. San Antonio, Room 501 El Paso, TX 79901 (915) 546-8185, FAX 546-8186 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion for the Appellant was sent by e-mail using the EFile system to the District Attorney's Office at [email protected] and the State Prosecuting Attorney at [email protected], and mailed to the Petitioner/Appellant MICHAEL BUCK on October 5, 2018.

/s/ Nick Vitolo NICHOLAS C. VITOLO MICHAEL BUCK § § vs. § PDR No. PD-0921-18 § THE STATE OF TEXAS §

AFFIDAVIT

1. My name is Michael Buck. I am over 18 years of age and I am fully competent to make this

affidavit I have personal knowledge of the matters stated herein. Every statement herein is

within my personal knowledge and is true and correct.

2. I am currentlyjailed bytheTexas Department ofCriminal Justice attheStiles Unit. MyTDCJ

number is 02091633.

3. After theEighth Court of Appeals affirmed the conviction in my case, myattorney, Nicholas

Vitolo, wrote me informing me of the decision. I misunderstood Mr. Vitolo when he wrote

that he intended to filea PDR on mybehalf. I want Mr,Vitolo tocontinue to represent me in

, the Court of Criminal Appeals.

4. I did not write, file, or otherwise work on or prepare the"PROSE" petition fordiscretionary

review filed in the Court of CriminalAppeals.

5. I want the PDR filed by Mr. Vitolo to be accepted as the PDR in my case instead of the one

labelled "pro se" and already accepted.

Inmate Jurat- Civ. Prac.& Remedies Code §132.001

My name is /^irJjiHi/, 3e££.y BttcK my date ofbirth is »6/gT/yrn and my inmate identifying number, if any, is , J-°! /& 3 3 . I am presently incarcerated in

5r>lfc* UftT TbcS in fc<m?Mt>*rT, Texas, USA, Ideclare under penalty ofperjury that the foregoing is true and correct. Executed on the Jfc^day..ofife»7g>g>(^g0l8.