in Re: Juan Enriquez ( 2014 )


Menu:
  •                             IN    THE      COURT    OF   APPEALS
    TWELFTH           DISTRICT      OF   TEXAS
    TYLER..       TEXAS
    FILED m COURT OF APPEALS
    No        12-14-00292-CR                12fo Cc.-rt of Appeals District
    In   re    JUAN      ENRIQUEZ.         Relator         TYLER
    CATHY S. LUS
    Original   Proceeding from                Anderson County,         Texas
    87th   Judicial        District       Court,     No.   87-9821
    Honorable Deborah A.             Oakes    Evans      Judge    Presiding
    RELATOR '_S .SUPPLEMENT TO
    ORIGINAL         PETITION FOR WRIT OF MANDAMUS
    TO   THE   HONORABLE   JUDGES         OF   SAID     COURT:
    Juan Enriquez.        Relator,         files his Relator's Supplement
    to Original Petition for Writ of Mandamus,                            showing as follows:
    I .
    Relator's Petition for Writ of Mandamus was                            filed on
    October 14, 2014.           However, the Clerk informed Relator that the
    petition for mandamus fails to comply with the requirements of
    Texas R. App. P. 52.3(k)(1)(C) and Tex. R. App. P. 52.7.                                   Each
    of these deficiencies is addressed separately:
    Rule      52.3(k)CL)(C)
    Rule 52.3(k)(l)(C) requires inclusion "unless voluminous
    or impracticable, the text of any rule, regulation ordinance,
    ...    or    other law (excluding case law)                        on which the argument
    is    based."
    The    basis    of    Relator's            claim    is    the    decision    of    the
    United       States    Supreme         Court       in Furman v.          Georgia.    
    408 U.S. 238
     (1972),       as    interpreted by               the    Attorney General of Texas
    in Attorney General                Opinion No.         M-1187       issued on       August 1,      1972,
    in response       to    inquiry by          the      Board of Pardons            and Paroles       of
    Texas regarding the                status      of prisoners             under sentence       of death
    when    Furman was       rendered.             A    sworn    copy of Attorney General
    Opinion No.       M-1187          is   provided with this. Supplement.
    Relator       also relies         on       Article       42.09,    §8((b),      o*f: the
    Texas       Code of Criminal Procedure,                     which provides          that    the
    Texas       Department       of    Criminal         Justice       shall    not   take     a defendant
    into custody under this article until the designated officer
    receives the          documents required by subsections (a)                             and (c) of
    this    section."        A sworn copy of this                     article     is    provided with
    this   supplement.
    Rule       52.7
    Rule    52.7 requires            Relator must             file     a certified or sworn
    copy of every document                 that    is    material       to     the relator's         claim
    that was filed in any underlying proceeding and a properly
    authenticated transcript of any relevant testimony from any
    underlying proceeding ... or a statement that no testimony was
    adduced in connection with the matter complained ...."                                        Here,
    the district clerk of Anderson County has not/replied to Relator's
    requests          to purchase        the record of          the   underlying      cause.
    However,      Relator attached to his Original                      Petition a sworn
    copy of the petition for writ                of habeas corpus            which he
    seeks heard and decided.                Jhus,   Relator has           complied with
    Rule 52.7(a)(1) and there is no need for Rule                           52.7(a)(2) because
    no testimony was adduced in connection with the matter complained
    of   in    thus   natter,
    Respectfully            submitted.
    En riqi
    r12 2
    TDCJ-Michael
    2664     FM   2054
    Jeanessee         Colony;    JX   75886
    Verificat ion
    I. Juan    Enriquez.     declare under penalty of perjury,
    that the foregoing statements                    in my Supplement to              Original
    Petition          for    Writ   of   Mandamus    are     true     and   correct.     Executed
    on       December       20   2014.
    Certificate       of   Service
    I, Juan Enriquez, certify that a correc t kcopy of the
    foregoinbg Supplement to Original Petition for frit of Mandamus
    was served by placing same in the United States mail, postage
    prepaid, on December 20,                2014     addressed to:              Mr. Douglas E.
    Lowe          District Attorney         Courthouse. 500 Nopth Church St..
    Palestine.         TX 75801 and Judge Deborah Oakes Evans,                         87th District
    Court, Courthouse                Suite 30.    500 N.      Church Street            Palestine,
    TX    75801.
    Authentication
    I;    Juan   Enriquez,   declare   under penalty of perjury
    that the attached Attorney General Opinion No. M-1187
    is a correct copy of the opinion provided to me by the
    Office of the Attorney General of Texas.  Executed on
    December    20,   2014.
    5 Attommt Gk»kkal
    Off* T e x a s
    .^•STOKXEY   GKKRHAI.
    August 1, 1972
    Hon. Clyde Whiteside
    Chairman
    Board, of Pardons and Paroles             .\    Opinion-No, M-1187
    Room 501 John H0 Reagan Bldg,
    Austin, Texas       78701                       Res   Effect of Furman v.
    Georgia holding death
    penalty unconstitutional",
    Dear Sirss                                            and related questions.
    This is in response to your recent inquiry concerning appli
    cation of the .recent JU. S0 Supreme Court 'decisions in Furman v.
    Georgia (69-5003) , Jackson v, Georgia (69-5030) and Branch v.
    Texas (69-5031)          U,S0       ,40 L.W. 4923, to procedures before
    the Texas Board.of Pardons and Paroles.•k We quote your entire
    letter (less formal parts) :'
    "The,Texas,Board of Pardons and Paroles respectfully
    requests .,your .opinion concerning matters of commutation
    of sentence, as' provided in Article 4, Section 11 of
    the Texas Constitution and other Texas lawsD                In view
    of the recent United States Supreme court opinions
    concerning the death penalty in William Henry Furman
    vso State of Georgia, et„ al„, and being cases numbers
    69-5003, 69-5030 and-f69-5031.
    "It-is the established policy of the Texas Board of
    Pardons and Paroles when .considering commutation of
    sentences' from death to life imprisonment that the
    sentencing trial court officials instigate application
    for such commutation by written request to the Board
    setting out its reason for seeking such commutation
    and requesting the Board to, make such recommendation
    to the Governor for his action.   This Board does not                     .
    solicit commutation application nor has it to my know
    ledge ever initiated commutation without the request
    of the trial officials or the convicted defendant.
    This' is the established procedure followed by this and
    prior Boards in such cases„               In view of'the ruling of
    -5789-
    Hon0yClyde Whiteside/ Page 2         (M-1187)
    the Supreme Court in the Furman casef and other cases
    numbered abovet we would like to have a legal opinion
    upon the following questionss
    "lo   Did the ruling in Furman vsc Georgia, #69-5003,
    69-5030, and 69-3031 et„ al„, declare the death
    penalty unconstitutional,, per se?
    "20   What is -the present posture of death penalties
    assessed in Texas District Courts in the following
    catagories s
    (a)    Awaiting motion, for new trial in Texas
    District Courts^
    (b)    Awaiting appeal to Texas Court of Criminal
    Appeals o
    (c)    Affirmed by the Texas Court of Criminal
    Appeals and awaiting certiorari to the
    Supreme Court of the United States„
    (d)    Penalties provided declared'unconstitu
    tional by the Supreme Court of the United
    States c
    (e)    Habeas Corpus proceedings pending under
    Article llo07 Texas Code of Criminal Pro
    cedure o "
    (f)    "Habeas Corpus pending in various federal
    courtst
    "3o   In view of the Board's policy outlined above, may this
    Board now act with regard to the above"catagories of
    cases to recommend commutation to the Governor?
    "40   In the event of commutation of the death penalty to life
    imprisonment, does this Board have any responsibility
    for causing the individual to be re-sentenced?,' .-
    "5c   What effect upon the action of this Board will result
    when a condemned person informs the' Board in writing
    that he does not wish to receive commutation from death
    to life?"
    The decision of the U3 S-. Supreme Court in the three cited
    cases (combined) is a short per curiam decision which, with
    formal parts omitted, holdss
    -5790-
    X.
    Hon, Clyde Whiteside* Page 3           (M-1187)
    "Certiorari was granted limited to the following
    question?  'Does the imposition and carrying out
    of the death penalty in [these cases] constitute
    cruel and unusual punishment in violation of the
    Eighth and Fourteenth Amendments?'  403 U.S„ 952
    (1971)o The Court holds that the imposition and
    carrying out of the death penalty in these ,
    cases constitutes cruel and unusuaT"~punishment
    in violation of the Eighth and Fourteenth Amend
    ments.*   The judgment in each case is therefore
    reversed insofar as   it leaves     undisturbed the
    death sentence imposed, and the.cases are
    remanded for further proceedings 0" (Emphasis
    added)0
    Then there follow nine opinions (five separate concurrences and
    four joint and separate dissents)s
    We must point out the fact that at the time of the issu
    ance of this opinion the mandate of the-United States Supreme
    .Court has not been issued and petitions, for rehearing have been
    filed in all three of the cases (as well as all "other Texas
    death penalty cases acted upon by that Court) «, We do not pre
    dict what the action of the Court upon these motions will be.
    We can only provide you with our current understanding of these
    .decisions,,     The following discussion must be accepted in this
    lighto
    After careful study of the order and the nine opinions, we
    conclude that the death penalty, per se, has not been declared
    constitutionally impermissible„           The entire thrust of the com
    bined cases is to declare Texas (and other) procedures are
    violative of "procedural due process" only as to the imposition
    of death as a punishment for crime in the manner and under the
    circumstances      submitted„
    In our opinion, these decisions make all current Texas death
    sentences subject to successful ..attack ,in proper proceedings in
    appropriate courts and prohibits the assessment of death in
    current cases under present Texas statutes„
    Ho
    You have advised this office that your inquiry with^ regard,
    to "posture" includes not only presently but also with regard '•.'
    to posture in the event the death penalty should be commuted
    to life imprisonmento
    -5791-
    1 »
    "^
    Hon„ Clyde Whiteside, Page 4         (M-1187)
    In Attorney General's Opinion M«=981 (1971) „ this office ad
    vised that your board "generally can recommend and the Governor,
    based on such recommendation,, can commute a death sentence to life
    imprisonment even though the conviction is on appeal and has not
    been finally determined by the Texas Courts0          The Board and
    Governor may do the same even though the United States Supreme
    Court may reverse a judgment insofar as it imposes the death
    penalty and remands the case to the Texas Court for further pro
    ceedings in conformity with its judgment^ so long as the Texas
    Court has taken no final action in the caseo"
    We further advised you that your board "can recommend to the
    Governor that a death sentence be;.commuted to life imprisonment,
    and the Governore pursuant to such recommendation, can commute the
    sentence without consent of the convictc  Neither do we find in
    our laws any requirement that the Board of Pardons and Paroles
    conduct a hearing before it recommends commutation nor before
    commutation is given a"
    This conclusion is supported by the recent decision of the
    Court of Criminal Appeals in the case of Whan vc Texas,               S0W„
    2d _^ (not yet reported but being Cause Noc 41,789 on th"e"docket
    of that court) delivered June 28, 19 720         That opinion holds that
    the Governor may commute a'death sentence to life even after the
    U0 Sc Supreme Court has declared the death penalty invalid or at
    any time after a verdict of guilty has been returned and the jury
    has fixed the penalty ibut of course before a new trial has been
    granted by a court of competent authority)c The opinion also
    noted that commutation does not affect the judgment but merely
    mitigates the punishment0
    With such introductory statements, we will now analyze the
    categories submitted,,
    (a)
    Where a death penalty conviction is pending motion for new
    trial in the District Court-,, the penalty may be commuted and the
    motion for new trial will be heard and disposed of on the merits
    asserted as if life imprisonment had been the original penalty
    imposedo
    (b)
    Where appellate review is pending in the Court of Criminal
    Appeals9 the penalty may be commuted and the appeal may proceeds
    •5792-
    HonD Clyde Whiteside, Page 5           (M-1187)
    We express no opinion on whether or not the Court of Criminal
    Appeals might return the cause to the District Court for further
    proceedings (such as sentencing, supplementary briefs, etc) or
    treat death penalty questions as surplusage, etc, as that Court
    has not yet had an opportunity^ to act to provide guidelines in
    such matters and the Code of Criminal Procedure appears not to
    contemplate such a possibility,,
    (c)
    Where certiorari is pending, the penalty may be commuted,
    thereby rendering death penalty questions moot (although other
    issues would remain unchanged)0
    (d)
    Where the U„ Sc Supreme Court has granted death penalty re
    lief and remanded the cause to the Court of Criminal Appeals
    (but where the Court of Criminal Appeals has not yet acted to
    grant a new trial), the penalty may be commuted and the Court
    of Criminal.Appeals will reaffirm its judgment (this is the
    precise posture found in Whan v„ State, supra)„
    (e)
    Where habeas corpus p: roceedings are pending in Texas courts
    under Article 11007, Texas Code of Criminal Procedure, coramuta-
    tion may be granted, thereby rendering moot any death penalty
    questionso
    (f)
    Where Federal habeas corpus proceedings are pending, commu
    tation may be granted and it would then be incumbent upon counsel
    for the State to call this to the attention of the Federal Court
    for its consideration upon the issue of mootness0
    It is our opinion that in all of the above categories, ab
    sent commutation, the court concerned must either grant a new
    trial (or in habeas corpus, order the release of the prisoner
    if a new trial is not granted)„
    IIIo
    In view of the decision in Whan v„ State, supra, it is our
    -W&-'
    1&
    •5793-                           -•*
    Hona Clyde Whiteside^ Page 6           (M-1187)
    opinion that the Board of Pardons and Paroles may now act with
    regard to recommending commutations in all cases in all cate
    gories o And since we find no prohibition to prevent the Board
    from acting sua sponteg we certainly find no prohibition against
    the Board requiring some initiative from either the State or the
    condemned person before consideration will be given to a recom
    mendation o It is obviously within the inherent rule making power
    of the Board to establish orderly procedures for the disposition
    of matters within its jurisdiction„
    IV o
    We find no statutory burden upon the Board to concern
    itself with the sentencing or resentencing of persons com
    muted o This would be a matter entirely for the judiciary.
    Vo
    In regard to the effect of notice from the condemned man
    that he opposes commutation, we quote again (as in A0 G„ Opinion
    #M-981) from the Court of Criminal Appeals decision in Ex Parte
    LeFors, 303 S„W02d 394 (Tex=Crim0 1957) at p„ 397:
    "Commutation of sentence means the change of
    the punishment assessed to a less severe one„   It
    differs from a pardon in that it may be imposed
    without consent of the convict or against his will,,11
    (Emphasis added0)
    Since the people of Texas have an interest in conserving judicial
    time and the immense cost of retrials, counsel for the State
    may properly petition for commutation to avoid such wasteful
    duplicityo  It is our opinion that such a request from a con
    demned man.should be considered by the Board along with all other
    factors but.such request in, no way prevents the Board from exer
    cising its lawful discretion in making or withholding a recom
    mendation to the Governoro
    y
    This question was disposed in Biddle vc Perovich, 274 U0S0 >:>'
    480 (U0SoSoCt0, 1927), wherein Mrc Justice Holmes stated for       '
    a unanimous   courts
    "Both sides agree that the act of the
    President was properly styled a commutation
    of sentence, but the counsel; of'; Page 8            (M--1187)
    recommend commutation upon application from officials of
    the convicting court.
    40     The Board has no obligation to go forward in
    causing convicting courts to re-sentence (under nunc
    pro tunc)    those commuted.                             ——
    50     The Board may recommend (and the Governor may
    grant) commutation over a protest from the condemned
    person.
    Respectfully submitted,
    C.   MARTIN
    General of Texas
    Prepared by Howard M„ Fender
    Assistant Attorney General
    APPROVED s
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    W„ E0 Allen, Co-Chairman
    Max P0    Flusche
    Lang A. Baker
    Robert La Lattimore
    Gordon Cass
    SAMUEL D0    McDANIEL
    Staff Legal Assistant
    ALFRED WALKER
    Executive Assistant
    NOLA WHITE
    First Assistant
    -5796-
    Authentic at ion
    I,   Juan    Enriquez.    declare   under penalty of perjury
    that the attached Article 42.09 o;f: the Code           of Criminal
    Procedure is a correct copy of said Article             42.09.  Executed
    on   December      20,   2014.
    Art. 42.09. COMMENCEMENT OF SENTENCE; STATUS DURING APPEAL; PEN
    PACKET.
    Sec. 1. Except as provided in Sections 2 and 3, a defendant shall be delivered to
    a jail or to the Texas Department of Criminal Justice when his sentence is pronounced,
    or his sentence to death is announced, by the court. The defendant's sentence begins to
    run on the day it is pronounced, but with all credits, if any, allowed by Article 42.03.
    Sec. 2. If a defendant appeals his conviction and is released on bail pending
    disposition of his appeal, when his conviction is affirmed, the clerk of the trial court, on
    receipt of the mandate from the appellate court, shall issue a commitment against the
    defendant. The officerexecuting the commitment shall endorse thereon the date he takes
    the defendant into custody and the defendant's sentence begins to run from the date
    endorsed on the commitment. The Texas Department of Criminal Justice shall admit the
    defendant named in the commitment on the basis of the commitment.
    Sec. 3. If a defendant is convicted of a felony and sentenced to death, life, or a
    term of more than ten years in the Texas Department of Criminal Justice and he gives
    notice of appeal, he shall be transferred to the department on a commitment pending a
    mandate from the court of appeals or the Court of Criminal Appeals.
    Sec. 4. If a defendant is convicted of a felony, is eligible for release on bail
    pending appeal under Article 44.04(b), and gives notice of appeal, he shall be transferred
    to the Texas Department of Criminal Justice on a commitment pending a mandate from
    the Court of Appeals or the Court of Criminal Appeals upon request in open court or upon
    written request to the sentencing court. Upon a valid transfer to the department under
    this section, the defendant may not thereafter be released on bail pending his appeal.
    Sec. 5. If a defendant is transferred to the Texas Department of Criminal Justice
    pending appeal under Section 3 or 4, his sentence shall be computed as if no appeal had
    been taken if the appeal is affirmed.
    Sec. 6. All defendants who have been transferred to the Texas Department of
    Criminal Justice pending the appeal of their convictions under this article shall be under
    the control and authority of the department for all purposes as if no appeal were pending.
    Sec. 7. If a defendant is sentenced to a term of imprisonment in the Texas
    Department of Criminal Justice but is not transferred to the department under Section 3
    or 4, the court, before the date on which it would lose jurisdiction under Section 6(a),
    Art. 42.09. COMMENCEMENT OF SENTENCE; STATUS DURING APPEAL; PEN
    PACKET.
    Sec. 1. Except as provided in Sections 2 and 3, a defendant shall be delivered to
    a jail or to the Texas Department of Criminal Justice when his sentence is pronounced,
    or his sentence to death is announced, by the court. The defendant's sentence begins to
    run on the day it is pronounced, but with all credits, if any, allowed by Article 42.03.
    Sec. 2. If a defendant appeals his conviction and is released on bail pending
    disposition of his appeal, when his conviction is affirmed, the clerk of the trial court, on
    receipt of the mandate from the appellate court, shall issue a commitment against the
    defendant. The officerexecuting the commitment shall endorse thereon the date he takes
    the defendant into custody and the defendant's sentence begins to run from the date
    endorsed on the commitment. The Texas Department of Criminal Justice shall admit the
    defendant named in the commitment on the basis of the commitment.
    Sec. 3. If a defendant is convicted of a felony and sentenced to death, life, or a
    term of more than ten years in the Texas Department of Criminal Justice and he gives
    notice of appeal, he shall be transferred to the department on a commitment pending a
    mandate from the court of appeals or the Court of Criminal Appeals.
    Sec. 4. If a defendant is convicted of a felony, is eligible for release on bail
    pending appeal under Article 44.04(b), and gives notice of appeal, he shall be transferred
    to the Texas Department of Criminal Justice on a commitment pending a mandate from
    the Court of Appeals orthe Court of Criminal Appeals upon request in open court or upon
    written request to the sentencing court. Upon a valid transfer to the department under
    this section, the defendant may not thereafter be released on bail pending his appeal.
    Sec. 5. If a defendant is transferred to the Texas Department of Criminal Justice
    pending appeal under Section 3 or 4, his sentence shall be computed as if no appeal had
    been taken if the appeal is affirmed.
    Sec. 6. All defendants who have been transferred to the Texas Department of
    Criminal Justice pending the appeal of their convictions under this article shall be under
    the control and authority of the department for all purposes as if no appeal were pending.
    Sec. 7. If a defendant is sentenced to a term of imprisonment in the Texas
    Department of Criminal Justice but is not transferred to the department under Section 3
    or 4, the court, before the date on which it would lose jurisdiction under Section 6(a),
    Acts 2005, 79th Leg., Ch. 728, Sec. 4.005, eff. September 1, 2005.
    Acts 2007, 80th Leg., R.S., Ch. 1308, Sec. 4, eff. June 15, 2007.
    Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.023, eff. September 1, 2009.
    Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.024, eff. September 1, 2009.
    Acts 2009, 81st Leg., R.S., Ch. 980, Sec. 1, eff. September 1, 2009.
    d.
    Acts 2005, 79th Leg., Ch. 728, Sec. 4.005, eff. September 1, 2005.
    Acts 2007, 80th Leg., R.S., Ch. 1308, Sec. 4, eff. June 15, 2007.
    Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.023, eff. September 1, 2009.
    Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.024, eff. September 1, 2009.
    Acts 2009, 81st Leg., R.S., Ch. 980, Sec. 1, eff. September 1, 2009.
    4
    

Document Info

Docket Number: 12-14-00292-CR

Filed Date: 12/29/2014

Precedential Status: Precedential

Modified Date: 9/28/2016