Hines, Joseph Barnard ( 2015 )

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DATE MAY 8,2015 at the time of imaging.
RE: MG:riON .FOR LEAVE 'T'O FILE WRIT OF MANDAMTTS AND WRIT OF MANDAMTT.S IN
TRIAL CAUSE N0.776435-R.
DEAR CLERK I
CAN YOU PLEASE FILE THIS DOCUMENTS AND PRESENT THEM TO THE r.oUR~ FOR THEIR
CONSTDERATION.
ALSO I HAVE PLACRD A STAMPED ENVELOPE WITH THIS LETTER rAN YOIJ PLEASE TN-
FORM ME OF THE DA~E YOU REr.EIVE AND.FILE SAID D()('IJMENTS. THAJ\TT:( YOIJ.
r..r..F.
R. HINES
:11:901768-r.ONNALLY TTNT'l'
RE:CEf\IEO IN ggq FM 632
COURT OF CRIMINAL APPEALS KENEDY,'PX.78lJq
MAY 112015
Abe~ Acosta, Clark
TRIAL C.AUSE N0.776435-B
JOSEPH BARNARD HINES, §
RELATOR
v. § IN THE COTTRT OF CRIMINAL Ali>.P.ElU.$_
. I'
'E
..:..;ctv DIN
CHRIS DANIEL,HARRIS COUNTY DISTRC.IT cnr lf:?T OF CRIMI .
NAL APPEALS ·
CLF.RK,
RESPONDENT MAY 112015
MOTION FOR LEAVE TO FILE·WRIT OF MANDAMUS Abel Acosta, CD®rrk
TO THE HONORABLE JUDGEfS)· OF' SAID C.OIJRT:
c.omes now, Joseph Barnard Hines. Rel;:lf-or, in pro se. a.nd files thi~
motion for leave to file writ of m~ndamus ~nd reg~est for such. m~
tion to b~ granted as Relator will show as follo``:
I.
Relator filed his application for writ of habeas corp11s with the
Harris County district clerks office on·3/,~/15 and was assiqnea
the above cause: number. The -~tate issued ·it's orininal answer· on
4/2/l"i .. see .. F.X-A rsTA'l'E'sORIGINAf. ANSWRRl. Th·:::l !':rial t::!O.urt fil~d it'.s
fact findincg~ of con•::lusion o-~=· iaw 0n Ll/9/15, .'!:;e.=. F.E'f<-B r TRB.:S COURT
FACT FINDING OF C0NCLUSIGN OF LAW.].
Contained inside of the trial courts· ORDER is instructions for
the district clerk to forward all document to the court of crim-
inal ~oneals.see.EX-R. Relator has exhausted his r~medies and has
no other adequate remedy·. at and the act se>uaht t0 be comnelled is
ministerial.not discretionarv in nature.T.c. . . r.P. art.ll.n7 sec.1
(c) •
PRAYER FOR RELIEF'
WHEREFORE,Relator respectfully prays the Court'grants his motion
for leave for writ of mandamus and comoel Resoonnent to immedi-
atelv transmit the application for writ of habeas corous.memoran-
dllm.exhibits,anv answer filed,and a certificate reciting the date
received.
executed on 5/7/15
1
CERTIFICATE OF SERVICE
!,JOSEPH BARNARD HINES, HERERY CER'l'IFY THAT A TRTTR AND CORRECT C'OPY
OF THIS MOTION FOR L-EAVE 'T'O FILE WR TT OF MANDAMUS WITH WRIT OF
MANDAMUS ATTACHED WAS MAILED BY rT.S.P.S. 'T'O~THE CLERK OF THE
COURT OF CRIMINAL APPEALS :at-P·. 0 ~ BOX 12308, C'APTTOT. S'T'ATION.
AUSTTN.TEXAS 78711 and the same was mailed bv Il.~.P.S. 'l'O~THE
CLERK OF HARRIS COUNTY at~P.O.ROX 4651 .HOTTSTON.TEXAS 77210-4n.Sl
on 5/8/15.
ex~cuted on 5/7/15.
OSEPH BARNARD HINES
#901768-CONNALLY UNIT
99q FM 632
KENEDY.TEXAS 78119
2
TRIAL CAIJSE·N0.776435-B
JOSEPH BARNARD HINES,
RELATOR.
v. {) IN·THE COURT OF CRIMINAL APPEALS
CHRIS DANIEL.DISTRICT CLERK OF
HARRIS COUNTY I
RESPONDENT
PROPOSED ORDER
on this day,came on to be heard the foreaoiona Relator's motion for leave
to file writ of mandamus and it aooears to the court that the same should be~
GRANTED
IT IS THEREFORE ORDERED:that the district clerk of Harris Countv shall imm-
ediately transmit to the court of criminal appeals documents filed under the
above cause dealina with the writ of habeas corous.
sir.NED on this
----------------day of------~------- ,20-----
PRESIDING JUDGE
3
TRTAL CAUSE N0.776435-B
JOSEPH BARNARD HINES, § IN THE !80th JUDICIAL
RELATOR §
v. § DISTRICT. COURT OF
CHRIS DANIEL,HARRIS COUNTY § HARRIS COUNTY,TEXAS
DISTRICT ,IN HIS OFFICIAL
CAPACITY,-RESPONDENT §
ORIGINAL APPLICATION FOR WRIT OF MANDAMTTS
TO THE HONORABLE JUDGE(S) OF SAID COURT OF CRIMINAL APPEALS:
Comes now,JOSEPH BARNARD'HINES.Relator,in oro se,·in the above-
stvled and numbered cause of action and.files this original app-
··:·
lication fbr writ of mandamus.oursuant to article 11.07 section 3
(c) of the T~x~s Code of Crimirial Procedure,and would show the
court the following:
I.
Relator is an offender incarcerated in the TEXAS DEPARTMENT OF
CRIMINAL JUSTICE,who can be located at 89q FM 632 KENEDY.TX.78119
II.
Relator has exhausted his remedies and has no other adeauate
remedy at law,and the act souaht to be compelled is ministerial,
not disc.retionary in nature. T.C.C.P. art. 11.07 sec.3(c) requireS
Resoondent to immediately transmit to the COIJRT OF CRIMINAL APP~
EALS a cooy of the apol·ication for writ of habeas corpus, any ans-
_wer filed,and a certificate reciting the date uoon which that
findina was made,if the convictina court decides that there are
no issues to be resolved.·
Relator contends that the district attorney filed it's oriainal
answer on 4/2/lS.see,F.X-A[STATES ORIGINAL ANSWERl,and the trial court.
filed it's fact findinq and conclusion of law on 4/9/lS.see,EX-B
[TRIAL COURT FACT FINDING AND CONCLUSION OF LAWl.
Had the documents been transmitted to the COURT OF CRIMINAL APP~
EALS by Resoondent.as reauired by statute,Relator· would have re-
ceived notice from the COURT OF CRIMINAL APPEALS. Relator also
wrote two letters to the c.c.a. reQuestinq if it has received
1
such documents and the court clerk stated that it·had not.see.EX-C
[RELATOR LETTERS TO C.C.A. Lalso EX-ErCOURT OF CRIM.APPEALS RESPONSEl •
III.·
Respondent in his official capacity as district clerk of Harris
County,Texas has a ministerial dutv' to rec~ive and file all pape~
in a criminal proceeding.,and perform· all: other duties imposed on
the clerk bv law pursuant to ~.c.c.P. art. 2.2l,arid is resoonsi-
hle under T.c.r..p. 11.07 sec ..1(c) to immediately transmit to the
C0URT OF CRIMINAL APPEALS a copy of .the application for writ of
habeas corpus,any answers filed,and a certificate reciting the
dat• uoon which that findina was made. if the convicting court de-
cide~ that there are no issues to be resolved. Respondent .of
Harris Countv may be served at his ·place of business at:l201
FRANKLIN~P.O.BOX 465l,HOUSTON,TEXAS 77210-4651.
IV.
Relator request for the transmittal of the apolication for writ
of .habeas corpus with mem~randum,exhibits,any answers filed. Re-
lator has also attached· to t``s oriainal writ. of mandamus a copy
of the writ of habeas corpus,memorandum,exhibits.states oriainal
answer and district court fact findina and conclusion of law.see.
EX-D[APPLICATION OF WRIT OF HABEAS CORPUS,MEMORANDUM.AND EXHIBIT~,Z
EX-A[STATE'S ORIGINAL ANSWER],EX-B[DISTRICT COURT FAr.T FINDING AND CONCLUSIO~
. .
OF LAW]
PRAYER FOR 'RELIEF
WHEREFORE,PREMISES CONSIDERED,Relator respectfully r•auest a
finding that the Respondent did not transmit documents to the
COURT OF CRIMINAL APPEALS. Rela'tor orays for an ORnER directinq
Respondent to tranmit the apolication for writ of habeas corpus.
memorandum,exhibits,any answers filed.and a certificate reciting
the date upon which that finding was made to the COURT OF CRIMINAL
APPEALS.
2
CERTIFICATE OF SERVICE
!.JOSEPH BARNARD HINES,HERERY CERTIFY THAT THIS ORIGINAL APPLI-
~ATION OF WRIT OF MANDAMUS WITH ALL EXHIBITS MENTION WAS MAILED
BY U.S.P.S. TO~THE CLERK OF THE COURT OF CRIMINAL APPEALS AT
P.O.BOX 12308,CAPITOL STATION~AUSTIN.TEXAS 787ll.and the same was
mailed by U.S.P.S TO:CHRIS DANIEL-HARR~S COUNTY DISTRICT CLERK
AT P.O.BOX 465l,HOHSTON,TEXAS 77210-4651 on S/8/15.
executed on5/7/15.
3
TRIAL CAUSE N0.776435-B
AFFIDAVIT
!,JOSEPH BARNARD HINES.SWEAR UNDER OATH-THAT THE FACTS AND AL-
LEGATIONS IN THE ABOVE APPLICATION FOR MANDAMUS ARE TRTTE
AND CORRECT.
UNSWORN DECL
I.~OSEPH BARNARD. HINES, IS .PRESENTLY INCARCERATED IN T.D.C.J.-ID
..It-~"
AT THE CONNALLY UN[T,AND SWEAR UNDER THE PENALTY OF PERJURY THAT
THIS STATEMENT IS TRUE AND CORRECT~
4
TRIAL CAUSE N0.776435-B
J OS EP H BARNARD HINES I § IN THE 180th JUDICIAL
RELATOR
v. § DISTRICT COURT OF
CHRIS DANIEL,DISTRICT CLERK,
RESPONDENT HARRIS COUNTY, TEXAS
PURPOSE ORDER
On this day,came on to be heard the' foregoina Relator's ori~
ginal application of ·writ of mandamus and it apoealrs to the Coucl'
that the s~me should be:
GRANTED
IT IS THEREFORE ORDERED that the distric~·clerk shall immedi-
ately transmit to the COURT OF CRIMINAL APPEALS a cony of the
application for vrit of habeas cornu~,memorandum,exhibits.any
answers,and a certificate reciting the date uoon which that tran~
mittal was made.
SIGNED on this ------day of ------~-------- ,20
PRESIDING JUDGE
5
NO. 776435-B
EX PARTE § IN THE 180m DISTRICT COURT
§ OF
JOSEPH BARNARD HINES,
Applicant § HARRIS COUNTY, TEXAS
STATE'S ORIGINAL ANSWER
The State of Texas, through its Assistant District Attorney for Harris County,
files this, its original answer in the above-captioned cause, having been served with
an application for writ of habeas corpus pursuant to TEX. CRIM. PROC. CODE ANN. art.
11.07 § 3 (West 2013), and would show the following:
I.
The applicant is confmed. pursuant to the judgment and sentence of the I 80th
District Court of Harris County, Texas, in cause number 776435 (the primary case),
where on November 1, 1999, the applicant was convicted pursuant to a plea of guilty
for the felony offense of aggravated robbery. The court, in agreement with the plea
agreement, assessed punishment at fifteen (15) years confmement in the Texas
·Department of Criminal Justice- Institutional Division (TCDJ-ID).
The Fourteenth Court of Appeals dismissed the applicant's appeal in the
primary case on January 4, 2001 for lack of jurisdiction. Hines v. State, No. 14-00-
01014-CR, 2001 WL 8322 (Tex. App.-Houston [14th Dist.], no pet.)(mem. op., not
designated for publication).
The applicant's initial application for writ of habeas corpus, cause number
776435-A, was denied on August 25, 2004. Ex Parte Hines, WR-55,762-02 (Tex.
Crim. App. 2004).
II.
The State denies the factual allegations made in the instant application, except
those supported by official court records, and offers the following additional reply:
REPLY TO APPLICANT'S SOLE GROUND FOR RELIEF
In the applicant's sole ground for relief the applicant alleges that the juvenile
court abused its discretion by transferring the applicant to the state criminal court.
Applicant's Writ at 6.
However, if a subsequent writ application is filed after fmal disposition of an
initial application challenging the same conviction, the Court may not consider the
merits of or grant relief based on a subsequent application unless the application
contains sufficient specific facts establishing that:
(1) the current claims have not been and could not have been presented
previously in an original or in a previously considered application because
the factual or legal basis for the claim was unavailable on the date the
applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States·
Constitution no rational juror could have found the applicant guilty beyond
a reasonable doubt.
TEX. CRIM. PROC. CODE ANN. art. 11.07 § 4 (a) (West 2013).
The instant writ application was filed after the final disposition of the
2
applicant's initial writ application, cause number 776435-A, which challenged the
same conviction and was denied on August 25, 2004. In this application, the
applicant has failed to include sufficient specific facts establishing that the current
claims could not have been presented previously because the factual or legal basis
for the claim was unavailable; or that, by a preponderance of the evidence, no
rational juror could have found the applicant guilty beyond a reasonable doubt.
TEX. CODE CRIM. PROC. ANN. art. 11.07 § 4 (a) (West 2013). Therefore, the Court
may not consider the merits of or grant relief based on the instant writ of habeas
corpus.
m.
The applicant raises questions of law and fact that can be resolved by the
. Court of Criminal Appeals upon review of official court records and without need
for an evidentiary hearing.
3
·-
IV.
Service has been accomplished by sending a copy of this instrument to the
following address:
Joseph Barnard Hines .
TDCJ # 901768- Connally Unit
899FM632
Kenedy, Texas 78119
SIGNED this 2nd day of April, 2015.
va lores
ssistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-6657
Texas Bar I.D. #24059760
Prepared by:
Joshua Redelman - Intern
4
Certificate of Compliance as Required by Tex. R. App. 73.1(0
The State of Texas, through its Assistant District Attorney for Harris County,
files this, its Certificate of Compliance in the above-captioned cause, having been
served with an application for writ of habeas corpus pursuant to TEX. CRIM. PROC.
CODE ANN. art. 11.07 § 3 (West 2013). The State certifies that the number of words
in the State's Answer is 692.
5
CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
April 10, 2015
JOSEPH BARNARD HINES
#901768 CONNALLY UNIT
899 FM 632
KENEDY, TEXAS 78119
To Whom It May Conc~m:
Pursuant to Article 11.07 of the Texas Code of Criminal Procedure, please find enclosed
copies of the documents indicated below concerning the Post Conviction W!it filed in
cause number 776435-B in the 180th District Court. ·
D State's Original Answer Filed
D Affidavit
D Court Order Dated
D Respondent's Proposed Order Designating Issues and Order For Filing Affidavit.
~ Respondent's Proposed Findings of Fact and Order April9, 2015
D Other
Enclosure(s)- STATE'S PROPOSED FINDINGS OF FACT AND ORDER
·•'· .:,.'·:
1201 F~ANKLIN • P.O. Box 4651 • HousTON, TEXAS 77210-4651 • (888) 545-5577
PAGE I OF I REV: 01-02-04
.. ; . .
EX PARTE
§ OF
JOSEPH BARNARD HINES,
Applicant § HARRIS COUNTY, TE)\AS
STATE'S PROPOSED FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND ORDER
The Court has considered the application for writ of habeas corpus, the State's
answer and official court records in the above-captioned cause. The Court finds that
there are no controverted, previously unresolved facts material to the legality of the
applicant's confmement which require an evidentiary hearing and recommends that
the instant writ, cause number 776435-B, be dismissed because the applicant has
failed to include sufficit:mt specific facts establishing that the current claims could
not have been presented previously because the factual or legal basis for the claim
was unavailable; or that, by a preponderance of the evidence, but for a violation of
the United States Constitution, no rational juror could have found the applicant
guilty beyond a reasonable doubt. TEX. CRIM. PROC. CODE ANN. art. 11.07 § 4(a)
(West 2013).
THE CLERK IS ORDERED to prepare a transcript and transmit same to the
Court of Criminal Appeals as provided by TEx. CRIM. PROC. CODE ANN. art. 11.07
(West 2013). The transcript shall include certified copies of the following
documents:
1. The application for writ of habeas corpus;
2. The State's answer;
3. The Court's order;
4. The indictment, judgment and sentence, and docket sheets in cause
number 776435;
5. The Court's Findings of Fact and Conclusions of Law; and
6. The State's and Applicant's Proposed Findings of Fact and
Conclusions of Law (ifany).
THE CLERK is further ORDERED to send a copy of this order to the
applicant, Joseph Barn~d Hines, TDCJ # 901768 - Connally Unit, Kenedy, Texas,
78119; and to counsel for the State, Eva Flores, 1201 Franklin, Suite 600, Houston,
Texas 77002.
By the follo":'ing signature, the Court adopts The State's Proposed Findings of
Fact, Conclusions of Law and Order in cause no. 776435-B.
lit ' , ' ,
NO. 776435-B
EX PARTE § IN THE 180TH DISTRICT COURT
§ OF
JOSEPH BARNARD HINES,
Applicant § HARRIS COUNTY, TEXAS
CERTIFICATE OF SERVICE
The undersigned counsel certifies that I have served a copy of the State's
Proposed Findings of Fact, Conclusions of Law, and Order in cause number
776435-B to the applicant on April2, 2015, by mail as follows:
Joseph Barnard Hines
TDCJ # 901768- Connally Unit
899FM632
Kenedy, Texas 78119
E a Fl res
A``t District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
-~-````,;&~ (713) 755-6657
...... ·-li!if71;;··i.~7.)uni``-,.r;``l.7,:'····· "'"
(713) 755-5240
Texas Bar I.D. #24059760
Prepared by:
Joshua Redelman - Intern
3
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CL`` .
COURT OF CRIMINAL APPEALS
P.O. BOX 1.2308-CAPI'l'OL S'l'ATION
AUSTIN,•rx. 7B7ll
APRIL 21,2015
RE:
CLERK,
CAN YOU PLEASE INFOH!'l JVl.E U' YOUR OE'FICE HAS RECIE'iED NY APPLICl\T.IOAI FOR
·WRIT OF HABEAS OORPUS FRO.li'J TEll!: DISTRIC'l' COUR'l' OF tiARfW:l' COUN::C~?
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THANK YOU. _/j, ;;? L
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JO.S!:~PH :3P.f!.Nl\...qD H.T.NES
.#901768~CONNALLY UNIT
89:,1 E'l'i 632
KENED:t, TEXAS 7!3.!..19
CLEr."U<
\' COOR'l' --oF CRIMINAL APPEALS
P.O~BOX 12:!08-cAPI'l'OL S'l'AT!Ol'l
AUSTIN,'l'X. 78711
APRIL 3~,2015
RE: WRIT Oft' HABEAS C.'Of{PUS IN 'l'RIAL CAUSE NO. 776435·-B
Im wcitting in conce-rn of t."lo in t;ha above tt·ial cau."Je tnat. .I wa~
~n:it
inform by the district coUt·t that it was sent to :rour office .. I wrote a latter
too your officer concerning this mattT.tr on April 21,2.015,but I didn't receive a
r~sp-..>n.se:••
This requs::rt is in no at.t.3mpt to rush yow.~ officer, I'm JUSt di:q.gent sseking
my rights,so can you pl-;.>ase inform ma i i }'Our oific~ha~::~_ r-cceivc.d aaia writ of
habeas corl:)us and memorandum?
Than.k you for your time l.n cni.s mat:cer.
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#901768-CCNNALLY [J~U'l'
899 t"£1 632
:CENEDY ,-r:x. 7t.;llJ
CHRIS DANIEL-DISTRICT CL~ OR
1.-W~IS C:OGN'l'Y
P.O.BOXX 4651
HGUSTON,TXo77210-4651
APRIL 30,2015
RE: IN WRI:r 01!' HABEAS CORPUS/'l'RIAL C\USE L'JO. 776435-B ·
CLERK;
Can you plaasa infot-m 1113 if zOUt: office has to1.--warded the wt"it o:t habeas
corpus fi,i.e in the abovs cri~l caus~ nuwbur'?'.i'O ·raE COtfKT OF CRININAL APPEALS'?
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. COURT OF CRIMINAL APPEALS OF TEXAS
~< APPLICATION FOR A WRIT OF HABEAS CORPUS .
SEEKING RELIEF FROM FINAL FELONY CONVICTION
··.·,UNhER
...
CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
lNSTRUCTIONS
1. You must usc the complete form, which begins on the following page, to file an
application for a writ of habeas co•·pus seeking t·clief from a final felony conviction
under Article 11.07 of the Code of Criminal Pwccdurc. (This form is notfor death-
penalty cases, probated sentences which ha\'e not been revoked, or misdemeanors.)·
2. The district clerk of the county in which you were convicted '"ill make this form
available to you,on request, without charge.
3. You must file the entire writ application fonu, including those ~ections that do not
apply to you. If any pages are missing from the form, or if the questions have been
renumbered or omitted, your entire application may be dismissed as non-compliant.
4. Vou must make a separate application on a separate fonn for each judgment of
conviction you seek relief from. Even if the judgments were. entered iit the same
court on the same day, you must make a !i.eparate application for each one.
5. Answer every item that applies to you on the form. Do not attach any additional
pages for any item.
6. You must include all grounds for relief on the application form as provided by tht~
instmctions under item 17. You must also briefly sum1i1arize the facts of your claim
on the application form as provided by the instn1ctions under item 17. Each ground
·shall begin on a new page~ and the- recitation of the facts supp-orting the ground shall
be no longer th-0101~
(B) What was the case number'!
(C) Were you represented. by counsel on appeal? If yes, provide the attorney's
name:
(0) What was the decision and the date of the decision·~ !-4-01
( 13) Did yoi.t file a petition for discretionary review in the Coua·t of Criminal Appeals?
0 yes 2tJ no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number?
(B) What was the decision and the date of the decision?
(14) Have you previously filed an application for a writ ofhabeas corpus under Article
11.07 of the Texas Code of Criminal Procedure challenging tliis C(JnvictiOii?
XJ yes 0 no
If you.answered yes, ans·wer the following questions:
(A) What was the Coul"t of Criminal Appeals' v.·rit number? 55,762-02
3
Rev. Ol/l4il4
(B} What was the decision and the date of the decision? I:ENil!D wrmr l'iUT.lEN CHl!R CN
8-25-04
(C) Please identify the reason that the current claims 'wre not presented and c,ould
not have been presented on your previous application.
JW WID l.IJl' HAVE ~ ~, KlM.J.l:.miD EI01 A FINAL Cl'Y::ISICW CF A a.l.RI'
CF AEHLI.A1E ..JUUS)l'C'ffa~[MXI~ v. - 4 1 0 s.w. 3:i 300('IEX.Af?P.-4nBI!J\I[lst ci.isc~]
a:u.3,AW'D_S.W. 3:l_,2Dl4 tex. crim. at:P•l.elc.is 1918,4>14 WL f:f1:1lYiO ] CE'
'!HIS srAlE CN CR IHtRE 'B FILIN:; CE' CRliiiNAL HA8E'AS a:m...B.
lAO:::
M.5J, a:N91'11Ul'ICNAL, ~ CF a:;!(. CF JIBISDICI!IGMF 'lHE wriED SlruliS •
(15) l)o you currently have any petition or appeal pending in any other state or federal
court'!
0 yes
If you answered yes, please provide the name of the court and the. case number:
(16) lf you are presenting a claim for time credit, have you exhausted your
administrative remedies by presenting your claim to the time credit resolution
system of the Texas Department of Criminal Justice? (This requirement applies to
any final felony conviction. including state jail felonies)
0 yes 0 no WA
If you answered. yes, answer the following questions:
(A} What date did you present the claim'? ~"'---......;.......-----.,..-------
(B) Did you receive a decision and, if yes. what was the date of the decision'?
~A·--------------------------~--------------------~
If you answcr·cd no, please explain why ~'OU have not submitted your claim:
Rev. 01/14/ i 4
(17) Beginning on page 6, state concisely every legal ground. for your claim that you arc
being unlawfully re~trained, and then briefly summarize the facts supporting each
ground. You must present each ground on the form application and a brief
summary of the facts. lfJ'OUr grormds and briefsttmmary~ l~(thefacts ltflve not been
presented on the fl1rm application:. tlte Court willtwt consider yt)Ur grounds.
If you have mote than four grounds, use pages 14 and 15 of the form, which you
may copy as many times as nee--ded to give you a separate page for each ground, '"'ith
each ground numbered in sequence. The recitation of the facts supporting each
ground must be no longer than the two pages provided for the ground in the fm·m.
You may include with the form a memorandum of law if you want to present legal
authorities, but the Court l\'ill not consider grounds for relief set out in a
memorandum oflaw that were not raised on the forni .The citations and argument
inust he in a memorandum that complies with Texas Rule of Appellate Procedure 73
and does not exceed 15,000 words if computer-generated. or 50 pages if not. If you
arc challenging the validity of your c()nviction, please include a summary ofthe facts
pertaining to your offense and trial in your memorandum.
5
Rev. 01/14/14
GROUND ON~ JU'II.EN[JE Ol.Rl' ABl3ED IT'S~ BY Wi'U.V'lW IT'S JWL.'DICI?JX:.N PW
~ .Al?PLICANl' 'ID A CRIMINAL .FIN:>JN:iS AEW.i.' 'liE ~ CF 'J.Ht: .AU:aE)
~ AAl!t>LICAN'f IS BEii-IG iJ.i:;tHED HIS CONS1'l'I'U'£IONAL RIGHT Of:' om:; PROCBSS
GUAf<.ANTEE BY Tf!E; 14t.h AMENDMENT OF THE UNITED .STA'l'ES.
FACTS SlJPPORTING GROUND ONE:
'liE ..iJvEND:E o:l.RI' DID NOT SPECIFICALLY ST~TE IT'S REASONS ~"'OR WAIVER AND
CER'I'IFY IT'S ACTION IN Stili W.RIIJ'I'TEN ORDER AND THE FINDINGS OF THE COURT.
THE JUVENILE COUR'l' .MERELY FILLED OUT A FORM CERTIFICATION ORDER CONTAINING
"BOILERPLATE" LANGUAGE AND DID NO!' INCLUDE SPECIFIC EVIDEN'l'IARY .rnNDINGS
TO SUPPORT IT'S DETERMINATIONS.see,EX-B[ORDER WAIVING JURISDIC'I'IOl~]. -I'HE ONLY
REASON SPECIFICALLY SWED IN THE ORDER WAIVING JURISDIC'l'ION TO JUSTIFY THE
viAIVER OF JURISDICTION WAS THAT THE OFFENSE ALLEGED WAS A SERIOUS ONE,AND THE
ONLY FAc:r SPECIFIED IN SUPPORT OF 'l'HIS REASlSIN WAS THAT THE OFFENSE ALLEGED WAS
------·----------------------------
COMMIT!'ED AGAINST A PERSON.see,EX-B[ORDER WAIVING JURISDIC'!'ION].
FUR'l'fiEf;an>91;003b92] • 15
II.
GROUND FOR RELIEF PRESEm'EO IN SECOND WRIT OF HABESS CORPUS.
GROUND ONE: THE JUVENILE COURT ABUSED IT'S DISCRETION BY WAIVING IT'S JURIS-
DICTION AND TRANSFERRING APPLICANT TO A CRIMINAL COURT; THEREFORE THE CRIMINAL
COU'"RT LACKED JURISDICTION OVER APPLICANT WHERE THE TRANSFER ORDER MADE NO
FINDINGS ABOU'l' THE SPECIFICS OF THE ALLEGED OFFENSE. APPLICANT IS BEING DENIED
HIS CONSTITUTIONAL RIGHT OF DUE PROCESS GUARAN'l'EE BY THE 14th AMENDMENT OF.
THE UNITED STATES. .
III.
\
SUMMARY OF FA~rs AND PROCEDURAL HISTORY
Applicant was sixteen years of age at the tiDe of bls illegal arrest for
criminal offenses on 12-17-97 by detective Moore and detective Baker from Eis-
hower High School where he aas attending class. The detectives kidnapped App-
licant and took him to a loc::al police department in harris county where he was
photographed,fipger-printed,and innterrogated for hours then release on side
of the road • .J~ weeks later on 1-8-98 the same detectives returned to Eis-
hower High SChool and arrested Applicant in his classroom and took him to the
same police department where he was photographed, finger-printEid,.and innterro-
gated a second tim& for a few hours, then transferred him to the Juvenile De-
tention Center-West Dallas,where he was charge.
The State filed petitions seeking the waiver of jurisdiction of the 313th ju-
venile court.see, EX-A~ IN JUVEBE CASE W.cm:m55J(. A certification hearing
was held where the juvenile court granted the States petition and issued a
order waiving jurisdiction.see,EX~B[cmR W\fiL\G Jt.rus:liclii::N,W.c.an>755J].
Applicant was transferred to the 180th criminal district court on 2-25-98.
see,EX-c[J.4 'lex. am-1. M?P. LOOS l918,A>J.4 WL ~.] of tb
this state on or before the filing of original habeas corpus.
Alsp,by the preponderance of the evidenae,but for the violation of Applicants
due process rights of the United Sta~es Constitution no rational Juror or judge
co~ld have found him guilty or accepted his guilty plea where the criminal
district court lacked jurisdiction.
V\f\~eJ
~ the plain language of the statute,once an Applicant files an appli-
cation challenging the conviction,all subsequent applications reg~ing the
same conviction mus.t meet "one" of the ~wo conditions set forth in,Texas Code
tnr-:\``>-"-
of ~i1' •MJProcedures 11.07 §4(a)(l) & (2).see,EX PARTE WHITESIDE,l2 s.w." 3d
821.
The Texas Court of Criminal
' '
Appeals held,"What is lacking in our statutory
scheme-as ~ lacking in Kent-is any express statement of the applicable stand-
ard of appellate review of the juvenile court's transfer. order.
In the absence of an explicit statutory standard of appellate review,the
courts of appeals have £4i~ the void with ~ecisional law spelling out how
they will go about providing the "meaningful review" contemplated by KENT.see,
MOON v S'rA'l'E, 2014 Tex. Crim. App. LEXIS 1918;see also, MOON v. STATE,410 S.W.3d
366(CEX.APP.-HOUSTON[ls~ Dist]2013.
Justict KELLER, stated, "For almost forty years, the tendency among the courts
of appeals has been to hold that a juvenile transfer order need not specify in
detail the facts supporting the order. The Court of Appeals in this case broke
rank with the weight of tha.t authority, and this court now goes along with the
court of appeals unconventional holding.
In the instant case, even if Applicant .~d raise thie issue on appeal or in
his original writ of habeas corpus it wouid have been fruitless where there
was a void in the statutory
.
scheme process of a applicable standard of review.
I
Finally Applicant contends that his second writ of habeas corpus contains a
r;<·.D v.
'<
legal basiswhich was unavailable on or before the filing of his original
habeas corpus where said claim could not have been reasonably formulated from
the FINAL DECISIid.
The Texas legislature incorporated those factors set out in K~nt,into it's
own statutory scherne.TEX. FAM. CODE ANN.§S4.02(f} . . .
The- lst Court of Appeals
.
of Houston has set a proper staridard for a. meaning-
fu1 review cornternplated by Kent,in it's ruling in MOON v. STATE,4l0 s.w. 3d
366,2013 TEX. APP. :LEXIS. 9345(TEX. APP. HOUSTON 1st DIST. 2013};a.ff'd_S.W.
3d ,2014 TEX. CRIM• APP. LEXIS 1918,2014 WL 6997366,where it's sister
court , the 14th court of appeals has followed suit in GUERRERO v. STATE, 2014
TEX. ~P. LEXIS 13773 no.l4-13-00l01-CR(TEX. APP. H9USTON 14th dist.20l4}.
ARGUMENT AND AUTHORITY:
-
Applicant contends that he is being illegally restrained of his liberty in
violation of his 4th & 14th amendment of oue process wher~ the juvenile court
abused it's discretion by waiving jurisdiction and did not show it's work by
specifically stating in it's written order it's reasons for waiver and the
findings of' the court.see,EX-B[ CH:m wvm:; JUUSl!Cr.KN]. ·
'The juvenile court stated in it's order that there is probable cause to bel1
J.ieve that the cUld committed tne offense alleged,but the court showed no
1.
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.-·......:
finding.see,EX-B(~ WVOO'Jt.IUS:>!Cm:N]. When, in fact,the court~'probable cause
1
was based on illegally obtained, evidence that was obtained duti:ng a unlawful
\:
arrest, where Applicant was kidnapped by detective Moore and~detective Bake~
from Eishower High SChool where he attended classes on 4 `` 12-17-97 and
taken to a police department, where he was photographed, finger-printed, and
innterrogated for hours then release on side of the road to parent.see,EX-f!E
[AFFIIAVIT CF APPLICANI'], see also, EX-F [lVDI'ICl'l '10 St.Jf'i't(f$ ~ 'IE3l.'lMN{] •
Applicant was again arrest by the same detectives three weeks later on or _.
J``N~ '
about the 8th day of ~aft01By,1998, from his classroom and taken to the same
police department where he was photographed,finger-printed,and innterrogated
a second time; Where detectives claim the victims identified him as the person
who camnitted the crimes.see,EX-G[JUVENILE REJJ::H:S].
The juvenile report stated that detective Moore was able to obtain a photo-
graph of the shorter suspect,which would be Applicant,because a patrol officer
suspected him of being involved in criminal activity.see,EX-G[ JUIIENIIE FCEi:ucL:s].
Applicant's photograph was not in the police department system on or about
12-17~97,and the juvenile court did, not have any evidence presented to it of
any probable cause for Applicant's arrest on or about 12-i7-97.to obtain such I .
evidEtnce. so,any finding of probable cause would be void,because at the timee
of the arrest on 12-17-97 detectives Moore & Baker had no probable cause to
arrest Applicant,where he was not committing a crime at the time of arrest,
there was no evidence that he had committed a crime or any reason to make.a
prudent man believe that he had committed an offense.
The test applicable in determining whether there is probable cause for
arrest without a warrant,a paudent man in believing that the arrested person
had committed or was committing an offense is set ~ in,BRITTEN v. STATE,
578 s~w. 2d 685,689(TEX. CRIM. APP. 1979)(on rehearing cert. denied,444 u.s.
955,100 S. Ct. 435,62(L ED 2d 328(1979).
An inarticulate hunch,suspicion or good faith of the arresting officer is
insufficient to constitute probable cause for a arrest,search,or temporary de-
tention.see,FATEM v. STA'l'E,558 S.W. 2d 463,466.
!.APPLICANT'S PHOTOGRAPH,FINGER_PRINTS,AND DNA
2.
";,.
' a ~ I '
When investigative detention is based on nothing more than inarticulate
hiJilch, the fruits of the detention and subsequent search are inadmissible in
evidence. see,TUNNELL v. STATE,554 S.W •. 2d 697,698.
Obtaining finger print.sevidence violates the fourth and fourteenth amendment,
so a8 to make sure evidence inadmissible in a state. cr.l.minal trial; where ( l)
the finger-prints were obtained while the accused was detained at police head-
quarters without probable cause for his arrest, (2) the detention at police
headquarters. of the· accused and other persons of similar description was not
authorized by a judicial officer, ( 3) the accused was unnecessarily required to
undergo two finger-printing seesions,and (4) the accused was not merely finger
\printed during the f~rst of two sessions,but was also subjected to innterro-:
~gation.see,DAVIS. v. MISSISSPI,22 LED 2d 676,394 U.S. 721.
In MAPP v. OHIO, the court held, "All evidence obtained by searches and sei-
zures· in violation of the constitution is by that same authority,inadmissible
in a state·court." id. 367 u.s. 643,655,6 LED 2d 1081,81 S. Ct. 1684,84 ALR 8
2d 933(.1961).
A juv~ile court waiver of jurisdiction begans with a finding of probable
cause to believe that the juvenile committed the alleged offense,which is nec-
essary for the juvenile court to waive it's exclusive jurisdiction on suffici-
:>t.AS-
ent facts.and circumstances to warrant a prudent man to believe that the ~
pact had conunitted or was committing an offense. IN THE MAT'.rER OF D.W.L.,828
S.W. 2d 520(1992 TEX. APP. LEXIS 855); GERSTEIN v. POGH,420 U.S. 103,112,43 L.
EO. 2d 54,95 s. Ct. 854(1975. Probable cause for an arrest applies this san~
standard.see,SMITH v. STATE,739 S.W. 2d 848,853(TEX.CRIM.APP. 1987); IN THE Ia
MATTER OE' N.M.P.,969 S.W. 2d 95(1998 TEX. APP.LEXIS 2355).
In the instant case, detective Moore, and Baker ·were without probable cause to
arrest applicant on 12-17-97 and obtain evidence without authority of a judi-
cial officer as set out in Tex. E'am. Code Ann.:S2.025 (b)(3),and it was a
abuse of discretion of the juvenile court to find probable cause(~ waive
jurisdiction) that Applicant committed the offense where there was no evidenc~
shown of probable cause to arrest on 12-17-97 to obtain Applicant's photo-
graph, finger prints, or to irmterrogate.
The. juvenile courts abuse of discretion continued further where the order
0
waiving jurisdiction did not apecifically.state it's reasons for waiver and
certify it's action in a written order and the findings of the court. The
juvenile court merely filled out a form certification order containing
3
. ' '
"boilerplate" language and did not include specific evidentiary findings to
support it's determinations.see,EX-B[id. §54.02(f).
If the juvenile court waives jurisdiction,it'..:.; required to "state specif~:­
cally in the order it's reasons for waiver and certify it's action,including 8
the.written order and findings of the court."id.§S4.02(h).
In the instant case,which is identical to MOON,the only reason specifically ;,
· ...•
stated. in the juvenile court's order to justify the \iai ver of jurisdiction was
.that :.he Offense alleged Was a SeriOUS one I and the only f~Ct Specified in Sup-
. . `` ``
port of this reason was that the offense alleged was committed against a per~
son.sae, EX-B[CHm WAJ:IIlN:i ~] •
The COurt held that a waiver of juvenile jurisdiction "based on this partie
cular reason,fortified only by this fact,constitutes an abuse of discretion."
Additionally,the COUrt determined that other fact findings included in the
juvenile court's written order were "superfluous" because,although mose facts
findings would have been relevant to support a transfer for the alternative ~
reason that the appellant's background was such as to render waiver of juvenil~
jurisdiction appropriate, the juvenile court did. not c~te the appellant's back-
ground as a reason for in transfer in the written order. MOON v. S'l'A'l'E,2014 •
5
~ ....... ,
t I ,' I.
TEX. CRIM. APP. LEXIS 1918,[WL] at* 14-15.
In the instant case,like the order in MOON,the tr~asfer order in this case
makes no findings about the specifics of the alleged offanse,where here,agg-
ravated robbery and finds no more than probable cause to believe that appli-
cant committed the offense alleged.see,EX-B[~ WIU'IINi Jt.RISDICl'IQ\J]. Also, as
"'na
in MOON ,~only stated reason given for Applicant's transfer was that "be-
cause of the seriousness of the offense, the welf.are of the community requires (
criminal proceedings," and the only specific fact supporting this reason was
that "the offense allaged to have been committed was against the person of
another."
MOON, instructs that that the juvenile courts waiver of jurisdiction "based o
on this· particular reason fortifi~d only by this fact" constitutes an abuse of
discretion.2014 TEX. CRIM. APP. LEXIS 1918, ['vL]at *14.
In tne instant case,due to the juvenile court abuse of discretion during the
certification hearing violating Applicant's due process rights and the criminal
district court was without jurisdiction to enter it's judgment.
Also,by a preponderance of the evidence,but for a violation of the United ...
States Constit.ution[.lack of il..'ll:'i&:lict
. -
an:i denial of d..Js fCCXleSS] no rational fact
.
finding or juror could have found Applicant guilty of accepted his guilty plea
beyond a reasonable doubt. <
HARM: . ,.,.·
Applicant was harm by the juvenile courts abuse of discretion during the cer-
tification hearing where his fourth and fourteenth amendment of the United .
States COnstitution was violated and force him to a criminal district court
lacking jurisdiction to issue a judgment by convicting him as an adult. And
such conviction ia causing collateral consequences wh~e the illegally obtain
evidence is the foundation of other criminal convictions in trial cause num-
bersa 776,436,; 800590; 800591; 809892,which are transferred offenses from the
juvenile court with identical orders waiving jurisdictions as MOON.see,EX-H
[CR:ERS WAIVl1'-G J£.R£IDICl'.ICN lN 'IR. N). 7764l5;Slm);rol591;~2~.
'lha juvalile a:u:t.'s Ql."tl;r v.eivin3 juris:li.ctim is tmm in it self v.t1am an atuse of discz:etial
is CXlipl.etely stl:wl• 1';14 1 e •a v,, \-\\ c:"Qt.!l.
6
';.:
. {'{.':>~{(\~ ...,\'-I
Applicant ra,pet£6Wo:ly prays this COurt grants him relief by an· acquital
due to lack of probable cause for his arrest on or about 12-17-97 which evi-
dence was illegally obtain; or in. alternative relief that the 180th criminal
district courts judgment is vacated and. dismiss, and the casa is ramanded to
the juvenile court.
Applicant further praya that this court take into consideration the other
four orders waiving jurisdiction presented as exhibits and ~e judg-
ment in those cases in the !80th district court and remand the cases to the
juvenile court ,because Applicant plans to t.``· litigation in these cases. as
well and it would be a waste of judicial resources to file additional writs.
c.c.F.
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7
j/f-ch.
N0.9B-00755J
CGv
THE STATE OF TEXAS IN THE 313TH DISTRICT COURT
COUNTY OF HARRIS OF HARRIS COUNTY, T E X A S
ORDER WAIVING JURISDICTION
IN THE MATTER OF JOSEPH BARNARD HINES.
ON THE 24TH day of FEBRUARY, 1998, a hearing was held in the above styled
and numbered cause under Section 54.02 of the Family Code, on the issue of waiver
of jurisdiction. Prior thereto the Court had ordered and obtained a diagnostic
study, social evaluation,a full investigation of the child, his circumstances, and
the circumstances of the alleged offense, counsel, BELINDA PITT was retained more
than ten (10) days prior to the hearing; the counsel for the child was given access
to' all written matter to be considered by the court in making the transfer decision
more than one(1) day prior to the hearing; said child, JOSEPH BARNARD HINES and his
mother, CHERRIE MARSHALL had been served with citation more than two (2) days prior
to the hearing. After full investigation and hearing at which hearing, the said
JOSEPH BARNARD HINES and his mother, CHERRIE MARSHALL were present; the court finds
that the said JOSEPH BARNARD HINES, is charged in violation of penal laws of the
grade of felony, if. committed by an adult, to wit: AGGRAVATED ROBBERY OF HUAN VU,
COMMITTED ON OR ABOUT DECEMBER 15, 1997; that there has been no adjudication of
this offense; that he was 14 years of age or older at the time of the commission
of the alleged offense having been born on the````~-````:S;``N' that there
is probable cause to believe that the child committed the offense alleged and that
because of the seriousness of the offense, the welfare of the community requires
criminal proceedings. In making that determination, the Court has considered among
other matters:
1. Whether the alleged offense was against person or property,
with the greater weight in favor of waiver given to offenses
against the person;
2. The sophistication and maturity of the child;
3. The record and previous history of the child; and
4. The prospects of adequate protection of the public and the
likelihood of reasonable rehabilitation of the child by use of
procedures, services and facilities currently available to the
Juvenile Court.
The Court specifically finds· that the said JOSEPH BARNARD HINES is of
> •
sufficient sophistication and maturity to ·have intelligently, knowingly and
voluntarily waived all constitutional and statutory rights heretofore waived by the
said JOSEPH BARNARD HINES, to have aided in the preparation of his, defense and to
be responsible for his conduct. That the offense alleged to have been committed
was against the person of another and the evidence and reports heretofore presented
to the court demonstrate to the court that there is little, if any prospect of
adequate protection of the public and likelihood of reasonable rehabilitation of
the said JOSEPH BARNARD HINES by use of · procedures, services, and facilities
currently available to the Juvenile Court.
IT IS THEREFORE ORDERED that the jurisdiction of this Court sitting as a
Juvenile Court, be and it is hereby waived, and the said JOSEPH BARNARD HINES be
and the same is hereby transferred to the Criminal District Court of Harris County,
Texas, for criminal proceedings in accord~nce with the Code of Criminal Procedure.
Signed this day of FEBRUARY
~
~2t::::::-
OF HARRIS COUNTY, T E X A S
SHARON KELLER ABEL ACOSTA
PRESIDING JUDGE COURT OF CRIMINAL APPEALS CLERK
(512) 463-1551
P.O. BOX 12308, CAPITOL STATION
LAWRENCE E. MEYERS
CHERYL JOHNSON AUSTIN, TEXAS 78711 SIAN SCHILHAB
MIKE KEASLER GENERAL COUNSEL
(512) 463-1600
BARBARA P. HERVEY
ELSA ALCALA
BERT RICHARDSON
KEVIN P. YEARY
DAVID NEWELL
JUDGES
May 4, 2015
Joseph Hines #901768
Connally Unit
899 FM 632
Kenedy, TX 78119
RE: Trial Court Case# 776435-B
Dear Mr. Hines :
After a thorough search of our records, we find that you do not have a Writ of Habeas Corpus
filed in the Court of Criminal Appeals at this time. If you have any further questions or
concerns, please direct them to the District Clerk in the convicting county where you originally
filed the application.
I am herewith returning your documents.
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AA/kd
Enclosure
SUPREME COURT BUILDING, 201 WEST 14TH STREET, ROOM 106, AUSTIN, TEXAS 78701
WEBSITE WWW. CCA.COURTS. STATE. TX. US