Nash, Dwayne Edward ( 2015 )

WR-83,578-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/23/2015 5:23:28 PM
No. WR-83,578-01 Accepted 7/24/2015 8:14:30 AM
ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS, AT AUSTIN RECEIVED
COURT OF CRIMINAL APPEALS
7/24/2015
Ex parte Dwayne Edward Nash ABEL ACOSTA, CLERK
Applicant
On Application for Post-Conviction Writ of Habeas Corpus from
the 33rd District Court of Burnet County in Case No. 39596
Applicant’s Objection to the State’s Answer to the
Application for Post-Conviction Writ of Habeas Corpus,
and Motion for Remand for Evidentiary Hearing
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Dwayne Edward Nash, Applicant in the above
entitled cause, by and through John G. Jasuta and David A.
Schulman, his undersigned attorneys of record, and files this
response to the State’s answer submitted in response to his
Application for post-conviction writ of habeas corpus and would
show the Court:
I
On June 2, 2015, Applicant filed an application for post-
conviction writ of habeas corpus as well as a memorandum of law
in support of the habeas application, in the trial court. The
District Clerk mailed a copy to the State on June 4, 2015. The
State filed its answer on July 1, 2015.
The application, supporting documents, and the State’s
answer, was forwarded to this Court and filed on July 13, 2015.
The trial court made no findings or conclusions of law.
II
The State’s response was not filed in a timely manner. Article
11.07, § 3(b), C.Cr.P., plainly requires the State to file its answer
within fifteen (15) days, which, in this case, would have been not
later than June 19, 2015. Thus, the State’s answer is plainly not
properly before this Court, as the statute specifically speaks to a
failure on the part of the State to answer in the statutory manner,
requiring a statutory general denial. Applicant specifically objects
to the inclusion of the unauthorized “answer” in the record, and
to any consideration of that document due to its untimely nature.
III
While the State in its putative answer, at least in part,
requested entry of an Order Designating Issues, the trial court did
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not enter such an order either within or without the time in which
it had to act. Such time, as set out in Article 11.07, § 3(c), C.Cr.P.,
would have expired not later than July 10, 2015.
IV
The general denial of the State, statutorily entered as it was
due to the passage of time, has created factual issues which have
not been, but which should be, resolved by the trial court. The
trial court’s failure to act within the statutory time limit is deemed
a “finding” under Art. 11.07, § 3(c), C.Cr.P. That “finding” is
neverthless unsupported by the record before this Court, as
Applicant has stated facts which, if true, would entitle him to
relief.
The trial court is, in effect, the “eyes and ears” of this Court
in habeas matters, at least in the initial, fact-gathering phase.
Without findings specifically addressing alleged facts which, if
true, would entitle an applicant to relief, this Court is operating
blind. The trial court’s inaction in the face of the pleadings in this
case has left the Court in that precise situation.
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V
Even the State’s putative answer raises fact questions
through its denials, which require specific findings. It specifically
denies the allegations of fact, offering explanations for its positions
throughout. Given the putative answer, should it be considered,
it is obvious that there exist controverted fact issues which are
deserving of formal resolution.
VI
This Court is empowered by Article 11.07, § 5, C.Cr.P., to
“deny relief upon the findings and conclusions of the hearing judge
without docketing the cause . . ..” While the statute deems a
failure to act as a “finding,” Applicant would submit that any such
“finding” would not be “finding and conclusions of the hearing
judge,” because, by its inaction, the trial court in this case has
refused to “hear” the case.
Conclusion
The record properly before the Court demonstrates that there
remain “controverted, previously unresolved facts material to the
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legality of the Applicant's confinement” in this case. Should the
State’s answer be considered, despite its statutory inadequacy, the
need for resolution becomes more clear. An evidentiary hearing
should be ordered, with Applicant being accorded the opportunity
to put on evidence supporting his claims.
Prayer
WHEREFORE, PREMISES CONSIDERED, Applicant prays
that this Court will remand this case for factual investigations and
recommendations by the trial/habeas court, and upon subsequent
consideration by the Court, will grant such relief to which
Applicant is entitled.
Respectfully submitted,
______________________________ ______________________________
John G. Jasuta David A. Schulman
Attorney at Law Attorney at Law
State Bar No. 10592300 State Bar Card No. 17833400
lawyer1@johnjasuta.com zdrdavida@davidschulman.com
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
Attorneys for Dwayne Edward Nash
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Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 775 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
July 23, 2015, a true and correct copy of the above and foregoing
“Applicant’s Objection to the State’s Answer to the Application for
Post-Conviction Writ of Habeas Corpus, and Motion for Remand
for Evidentiary Hearing” was transmitted via electronic mail (eMail)
to Matthew Ottoway (matthew.ottoway@texasattorneygeneral.gov),
counsel for the State, using the eService function on the State’s
portal.
______________________________________
John G. Jasuta
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