Bolivar, Ex Parte Randall ( 2015 )

PD-0617-15
Randall Bolivar # 1719379
Ellis Unit
1697 FM 980
Huntsville/ Texas 77343
June 23, 2015
Texas Court of Criminal Appeals
P.O. Box 12308, Capitol Station
lD)£fo£lD oao/ ±o/3 /lib?
Austin, Texas 78711
RE: Cause No. PD-0617-15
Dear Clerk of the Court:
Enclosed for filing with the Court, please find my SECOND MOTION FOR LEAVE
TO FILE OUT OF TlMEPDR OF INTERLOCUTORY APPEAL DUE TO JURISDICTIONAL DEFECT.
Thank you for your time and efforts. God Bless You!.
Respectfully Submitted,
Randall Bolivar, Pro Se
cc:
State Prosecuting Attorney
Cameron County D.A.'s Office FILED IN
File COURT OF CRIMINAL APPEALS
JUL 0? 20i5
Abel Acosta, Clerk
RECEIVED IN
COURT OF CRIMINAL APPEALS
JUL 07 2015
Abel Acosta, Clerk
RECEIVED IN
CAUSE NO. PD-0617-15
COURT OF CRIMINAL APPEAL!
JUL 07 101!
IN THE
COURT OF CRIMINAL APPEALS AS&dS/lfO
AUSTIN, TEXAS
RANDALL BOLIVAR, §
Petitioner § COA NO. 13-11-00397-CR
§ 13TH Court of Appeals
vs. §
§ Tr. Ct. No. 09-CR-2869-A
THE STATE OF TEXAS, § 107TH District Court
Respondent §
SECOND MOTION FOR LEAVE TO FILE OUT OF TIME PDR OF INTERLOCUTORY APPEAL
DUE TO JURISDICTIONAL DEFECT
TO THE HONORABLE JUDGES OF' THE COURT OF CRIMINAL APPEALS:
Comes now Randall Bolivar, Petitioner Pro Se, and respectfully moves the
Court to grant him leave to file an out of time Petition for Discretionary
Review (PDR) in the Court of Criminal Appeals, and support shows:
FACTS
1. Appellant filed a pre-trial writ of habeas corpus, and a hearing was held
June 14, 2011 in the 107TH District Court of Cameron County, Texas. (RR-I6)
2. The trial court denied the requested relief, and an interlocutory appeal
ensued. (Thirteenth Court of Appeals, Cause No. 13-11-00397-CR)
3. The Thirteenth Court of Appeals delivered a published opinion, by Justice
Gregory T. Perkes, on November 1, 2012. The case is cited as EX PARTE
RANDALL BOLIVAR, 386 S.W.3d 338 (Tex. App. Corpus Christi 2012).
4. Appellate counsel wrote Appellant on November 3, 2012 to notify Appellant
of the appellate court's affirmation, but did not advise Petitioner of his
rights to petition this Court for discretionary review. (Exhibit Attached).
5. Appellant first became aware of his rignt to aPDR in the instant case on
May 11, 2015 while reviewing the Texas Rules of Appellate Procedures in
anticipation of having to respond to any brief or objection filed by the
State in response to the Writ of Mandamus and Stay of Proceedings filed by
Petitioner in this Court. (Cause No. WR-79,354-03).
6. Appellant has never received the trial court's order of denial, nor has the
trial court's Clerk's Record been made available to Appellant. Just recently
has Appellate counsel made the Appellate Brief and State's Brief.
7. Appellant has never been appraised of his rights under Rule 68, TRAP, as
required under Rule 48.4, TRAP. Appellate Court's record supports his claim.
ARGUMENT
Appellant argues due to interlocutory Appellate Counsel, Luis P. Garcia and
Lisa G. Greenberg, failing to inform Appellant that he had fifteen (15) days to
file either a motion for extension of time to file PDR, or to file the PDR
proper, pursuant to Rule 68, TRAP, as shown in the attached Exhibit. (JPAY
letter from Lisa G. Greenberg).
Garcia and Greenberg have a duty as appellate counsel to notify Appellant of
his time limits to file the motion for extension or PDR proper, in which both
attorneys failed to do soand follow Rule 48.4, TRAP, requirements in sending
Appellant, via Certified Mail, notice of the Court of Appeals opinion and that
Appellant must file said motion for extension or PDR, see id.
Because Appellate Counsel failed to notify Appellant of TRAP Rule 68
requirements to file for an extension or PDR, this Court has repeatedly held
as precedent in the past that Appellant should be granted leave to file a PDR
due to an appellate counsel's failure to notify. This reasoning is also in line
"with the rule that defendants have a right to effective assistance of counsel
on appeal." LAFLER v. COOPER, 132 S. Ct. 1376, 1385 (2012). Appellate Counsel's
duties on appeal continue until Rule 48.4 has been executed by counsel.
Appellant's interlocutory appeal addressed a separate conviction from the
I05TH District Court of Kleberg County, Texas (Cause No. 06-CRF-0501) other
than the 107TH District Court of Cameron County, Texas (Cause No. 09-CR-2869-A),
conviction in wnich the Kleberg Court, prior to the Cameron County Murder trial,
found that as to Count I to the Kleberg Motion To Revoke of the same Cameron
County murder allegation to be "NOT TRUE," therein divesting Cameron County of
JURISDICTION/ which cannot be waived, and can be brought forth at any time, in
any court. See EX PARTE PATTERSON, 969 S.W.2d 16, 19 (CCA 1998); HOUSTON GEN.
INS. CO. v. ATER, 843 S.W.2d 225, 227 (Tex. App. El Paso 1992).
Therefore, by this Court's prior denial of leave to file out of time PDR
was in ercorcreating a fundamental constitutional violation of significant
magnitude due to jurisdictional issue.
PRAYER
Wherefore, premises considered, Petitioner prays this Honorable Court will
grant leave to file an out of time PDR in Cause No. 13-11-00397-CR, from the
Thirteenth Court of Appeals.
Respectfully Submitted,
Randall Bolivar, Pro Se
Petitioner
Ellis Unit, TDCJ # 1719379
1697 FM 980
Huntsville, Texas 77343
VERIFICATION
STATE OF TEXAS
COUNTY OF WALKER
AAFFIDAVIT IN SUPPORT OF
SECOND MOTION FOR LEAVE TO FILE OUT OF TIME PDR OF INTERLOCUTORY APPEAL
DUE TO JURISDICTIONAL DEFECT
I, Randall Bolivar, being presently incarcerated within TDCJ-CID, O.B. Ellis
Unit, located in Walker County, Texas, declare under penalty of perjury without
the United Statesa that I have read the above-noted motion, that every
allegation and fact stated therin and herewith are true, correct, and complete
pursuant to Title 28 DSC § 1746 (1).
EXECUTED ON June 23, 2015.
Randall Bolivar, Affiant
CERTIFICATE OF SERVICE
I, Maria S. Rey, certify that a true and correct copy of the above and fore
going document has been served on opposing counsel for the State via hand-
delivery, fax, or regular First Class Mail at:
Cameron County D.A.'s Office State Prosecuting Attorney
964 E. Harrison St. AND P.O. Box.13046
Brownsville, Texas 78520 /Austin, Texas l$]l±.
Signed and served on June X£>, 2015.
RANDALL BOLIVAR 01719379 ML 8J21 30 ID:43334950 rp Iffl
You have received aJfmy letter, the fastest way t ^ ^ T
From : Lisa Greenberg, CustomerlD: 4074939
To (Inmate): RANDALL BOLIVAR, ID: 01719379
Date: 11/3/2012 10:04:15 AM EST, Letter ID: 43334950
Location : ML
Confidential and Privileged
Attorney/Client Communication
Unauthorized persons are prohibited from viewina or usi™ th,c r. • *• •
message and are not the intended recip'LnT Lase^contact mTimmf^?'," any,Way' ,f V™ h^e received this
message without saving, printing, or forwarding it S ,mmed,ate|y and then immediately delete the
Hi Randall,
A~ed^pS""" news. The 13th Court 0(
level They said that because Trey GaSa did notarrS SI « , ^ ,haln,° *•* MnS" "as made at the tn'al court
did argue findings of fact were made n9U° "lal al tnal °°urt teve;.' «"« »°< argue that in my appetu
Siller °' abunch -Repubto-oi ^ r»:ssssrra„setoTo,rtad
Here are some important portions of the opinion:
^Stct"^
essential eiements ofLoffense intX selESSy useT "^cout must determine
mS°™"i<> <***^ K 1) exactivwha,
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preserved for our review because appelian,did no,^m%^S3"£g£. «- «*
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make any additional findings regarding the othJnXoSfiTiSnoTSSJ ^"^"*"» "« for,he
Unnece5sary »*• ««
"•—ooIrtS
-here
OKay, so there „Is. Hopefuliy, you have a,„, copy „,the opinion from ,h. ,»courtofappeais
mgoing to give you some time to diqest this a<; Itrv* Q,*« *
Iam going to be completely frank wfh you hert Sis wi°T *"•£%"*' 3nd then we ™* move forward
Trust me, Iknow how hard the financial sit.,ifinn h if n,tS to w,thdrawal from your case due to lar*rif I™
to appeal this case to the Court: 1™SSSL?iT for y°U and yourfami|y- ^ Sd^bW fees 2T£S
alone. Ineed Luis's experience ^ZZmat^ his'Slri? ^hheDCase- bui' don,t feel c™SS*doing so
we could try to get appointed to the murdeTeas, bl? £2W T B,i°wnSVil,e- If there is no money avaSte
appointment. Pate did appoint us to your other cases thogh "^ ""^ 3S y^took T^ Qara S?rf hb
""".^fe^te^
RANDALL BOLIVAR 01719379 ML 8J21 30 ID:43334950 [P 2/2]
Jfiay
From : Lisa Greenberg, CustomerlD- 4074939
To (Inmate): RANDALL BOLIVAR, ID- 01719379
Sation'T12 1°:°4:15 *M EST' Letter ID: 4333495°
Iwant to see this through as Iam committed to your case hut Iam =k-* ♦
fee just as passionate about this case and the law as fdid thi rZ^ o.Ck between a rock and a hard place I,tni
aTS^dV,?"
Iwill await word from you.
Thanks Randall, take care,
Lisa
fi^fe mdmmSy to y^t mm^com to mm