Reyes, Jose Julian ( 2015 )

JOSE J. REYES
TDC No. 821821
McConnel Unit
3001 s. Emily Dr.
Beeville, Texas 78102
March 2, 2015
Mr. Abel Acosta, Clerk
COURT OF CRIMINAL APPEALS
P. o. Box 12308
Capitol Sllation
Austin, Texas 78711
RE: Cause No.· 752079-A(Count 2)
writ Of Mandamus
Dear Mr. Acosta, Clerk:
Encl·osed p'lease find Relator's Original copy of his
Writ of Mandmaus.
Thank you for your time and consideration in this
ma-tter.
RECEIVE'D IN
Sincerely,
COURT OF CRIMINAL APPEALS
MAR 06 2015
JOSE J. REYES
files Abel Acosta, Clerk
CAUSE 110.-· 752079-A (Count; 2}
IN THE COURT OF CRIMINAL APPEALS
AUSTIN TE_XAS
JOSE J. REYES
Relator,
vs.-
THE 283th JUDICIAL DISTRICT COURT
OF ~ARRIS COUN~Y, TEXAS
Respondent,
APPLICATION FOR WRIT OF MANDAUMS,
PURSUANT TO RULE 52.8(c), TEX. RULE APPELLATE PROCEDURE,
DIRECTING THE 283th JUDICIAL DISTRICT COURT TO PROCESS RELATOR'S
APPLICATION FOR WRIT OF HABEAS CORPUS
PURSUANT TO V. A; C. C. P., ART. 11. 0 7
TO THE HONORABLE J~DGES OF SAID APPEAL COURT:
COMES NOW, JOSB J.·· RBYBS, TDC Ro.· 821821, Relator,
and files this his Application for Writ of Mandmaus re-
questing this court to direct the 283th Judicial District
Court of: .HJ;Jrris county, Texas, to process his application
for writ of Habeas Corpus pursuant to v.-A.c.c.P., art. 11.07
in the above number and cause, presently pending before
the Respondent. In support thereof, Relator will show the
following:
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I.
JURISDICTION
This court has jurisdiction to issue a "Wr~f of Mandamus
in this case pursuant to article 5 § v of the Texas Constitution,
Landford v. Fourteenth Court of Appeals, 847 s.w. 581 (Tex.
Cir. 1993). Moreover, purpose of (1978) Amendment to prov-
ision of Texas Constitution governing power of Court of
Criminal appeals to issue extrraordinary writs; was to confer
upon the Court of Criminal Appeals additional power to grant
e~tra~rdinary WE1ts in cases regarding "Criminal matters."
Vernon 's Ann. Cons t. , Art. I § v., State ExRel. Vance .v.
Routt, 571 s.w. ~8.' 903 (Tex. Crim. App.·1978).
II.
STATEMENT OF THE CASE
Upon receipt of an application for writ of Habeas Corpus
challenging a final felony conviction, the attorney represent-
ing th~ State has (15) days to respond. See, Tex. Code Crim.
Proc., Art. 11.07, § (b). After the expiration of the time
allowed for the State to respond, the trial court is allowed
(20) days to determine whether the application contains
allegations of controverted, previously unresolved facts
material to the legality of ~he applicant's c~nfinement.
Art. 11;07, § 3(c). If the trial court determine that the
application for writ of Habeas Corpus presents such issues
it "shall enter .an order within 20 days of the expiration
o£ the time allowed for the state to reply, designating
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issues of fact to resolved~ Id. Thus,the trial court has
(35) days to enter an order designating issue after the
filing date of an 11.07 application for writ of Habeas Corpus.
Article 11.07 does not authorize the trial court ttO extend
the time limitation imposed by the statute, other than by
a "timely" entry of an ord~r designating issues. McCree v.
Hampton, 824 s. w. 2d• 578, 579 (Tex. Crim.· App. 1992) (em-
phasis added). Without a timely entry of an order designating
issue, article 11.07 imposed a duty upon the clerk of the
trial court to immediately transmit to this court the record
from the application for a writ of Habeas Corpus, deeming
the trial court-'s inaction a finding that no issue of fact
require further resolution. Article 11•07 § 3(c).
In this case, In November 2014, Relator filed his writ
of habeas corpus in the trial court• On December 12, 2014,
the Court filed a Affidavit of JJJJDITH JOHNSON dated December
10, 2014. On January 5, 2015 the State filed their State's
Proposed Findings of fact, Conclusion of law, and Order.
On January 15,' 2015, Relator filed his Objection to State:, s
Proposed Finding of fact, conclusion of law' and Order-.· In
• r ~ , • • • . . •
Relator's objection, he clearly showed the court that they
cannot finds, based on the credible affidavit of Johnson,
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that due to the Relat,or being convicted to of the two afore-
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mentioned offense he was not enti'tled to a Preliminary Hearing
as P.rovided by Tex;~• Gov'•t Code § 508.· 2811, BECAUSE HE DID
ROT SIGN A WAIVED.· "See, Tex.· Gov·•t Code § 508.2811, which
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clearly states that a Parole Panel or a des1gnee of the
Board shall prov1de w1th1n a reasonable t1me to ~ 1nmate
~person descr1bed !!f. sect1on 508.·281 (a), !!. Prel1m1nary
Hear1ng to determ1ne whether probable cause ~ reasonable
. . . - . .
grounds ex1st to bel1eve that the t1me ~ person has comm1tted
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an act that would const1tute a v1olat1on of a cond1t1on
of release, "UNLESS" the 1nmate person comm1tted the follow1ng:
a) wa1ves the prel1m1nary Hear1ng
b)
Relator never signed a waived, waives his Prel i11.:Jnary
Hearing. See, Morrissey v. Brewer, 408 u.s. 471, 484 (1972).
The "State's Propsed Findings of Fact, Conclusi6n of law,
and Order was filed on January 5, 2015." It being over
(35) days after the filing of the "STate's Propsed Finds
of Facts Conclusion and Order.
On February 23, 2015, Relator wrote a letter of delay
to the Court explaining to the Court i f :jhey selects addition
time but failed to notify the Court of Criminal Appeals
and enquiry is made to the Court .. _,'without mention of the
previously entered order designating issue a "delay Writ
leter" may well be sent :td'-the -·1:~11!'1 court. SEE EXHIBIT
u A • ATTACHED.·
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These untimely orders interferred with the District Clerk's
duty to transmit these writ to ~h$§ Court and are therefore
without effect. See, Martin v. Hamlin, 25 s. W• 3d. 718 (Tex.
Crim; App. 2000). The District Clerk has rio authority to
continue to hold Relator's application for writ of Habeas
corupus, and is under a ministerial duty to immediately
forward the application and related reocrd in the above
number and cause to the Court of Criminal Appeals, and the
record. See, Dejean v.District Clerk, Dallas County, 159
s.w. 2d. 183 (Tex.Crim. 2008).
Relator alleges bh~t the Respondeat has a clear "ministerial
duty" prescribed by v.A.C.C.P., article 11.07, to make a
finding of fact, conclusion of law, and recommendation
on his writ within a reasonable period of time and fo~ward
the same to this court. See, Dejean, supra.
III.
BRIEF IN SUPPORT
Act is ministerial for purpose of request for writ
Mandmaus, i f it cgnst.!tute duty clearly fixed and required
-by law, without exercise of discretion or judgment. Engle
v. Locker, 820 S.W. ell. 47 (1991); Curry v. Gray, 728 S.W.
2d. 128 (Tex. Crim. App. 1997).While it is b~e general rule
that a mandamus will not be issue to control b~e action
of an inferrior court or Public Officer in a matter in-
volving discretion. HOwever, the writ may issue "in a proper
case" to correct a clear abuse of discretion;" See, Crane
v. Turnks, 160 Tex. 182, 328 s.w. 2d. 434, 440 (1959).
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The Supreme Court ~as recognized that adaption of this
exception is particularly important "where f:he remedy by
way of appeal 1s 1nadequaf:e •.· west v. Soli tos, 56 3 s. w.
2d 240, 244 (Tex. 1978). In re-iterating this standard,
in Johnson v. Fourth Court of Appeals, 700 s. w. 2d. 916,
917 (Tex. 1985 ). The Supreme Court stated, "Mandamus 1ssues
only f:o correct: clear abuse of d1scref:1on or f:he v1olaf:1on
of a duf:y 1mposed by law when there 1s no of:her adequate
remedy by law. Id~ af: 917.
IV.
ABUSE OF DISCRETION
The Relator further coa~ends the Respondent's failure
to apply the law with respect to article 11.07, V.A.C.C.P.,
has constituted a clear abuse of discretion; when article
11.07, explicitly enumerate that the Respondent process
Relator's Habeas Corpus action within specified time limit-
ation and forward bhe application to this court. In view
thereof, the Respondent has but one choice, and it is the
duty prescribe by article 11.07, the failue to perform
this duty constitutes a clear and prejudicial abuse of the
Respondent aut y .fi xea by 1 a,,_. consequently, R~latori•:S·_
right of access to the courts; and to be heard on his
Habeas Corpus action; has quite stringently been impaired
by th• action of the Respondent.
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Therefore, WRit of Mandamus will issue when under the
circumstances, law ana facts permit trial court to make
but one decision and it refuses to make ``at decision.
Proffer v. Yates, 734 s.w. 2d. 671, 673 (Tex. Cir. 1987}.
In, Walker v. Packey, 827 s. w. 2d. 833 (Tex. 1992}.
The Supreme Court stated: "~r1al cour~ clearly abuses 1~'s
d1scre~1on, for purposes of mandamus, v1~h respec~ ~o
resolu~1on of fac~ual Jssues or ma``ers comm1``ed to ~r1al
.. . ~ . ..
cour~•s d1scre~1on, only 1f ~r1al court could reasonably
have reached only one dec1s1on~· Id. Also see, State v.
Walker, 679 s. w. 2d. 484 (Tex. Cir. 1984} (Mandamus will
lie to correct an action of trial judge who:comidf:s abuse
of discretion, or violation of clear auty under law and
when there is no other adequate remedy at law"} Ayres v.
Canoles, 790 s. w. 2d. 54 (Tex. 1990} ("Writ of Mandamus will
issue to correct ~rial court actions when there has been
clear abuse of discretion particularly where remedy by law
of appea 1 is inadequate. "}
v.-
APPEAL IS NOT AN ADEQUATE REMEDY
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The Relator
,. contends ~hat bhe issue o£ the trial court
to apply the dictates of v. A. c. c. p., Article 11. 07, is not
an appealable issue.
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VI.
PRAYER OF RELATOR
WHEREFORE, Premises considered the Relator, prays that
this court issue an order directing the Respondent to
forward th``r recommendations, finding of facts and conclu-
sion of law, and forward the same to this within thirty
( 30) days.
cConnell Unit
3001 S; Emily Dr.
Beeville, Texas 78102
CERTIFICATE OF SERVICE
I, JOSE J.· REYES, TDC No. 821fS21, certf~y that a true
and correct copy of uee foregoing application for Writ of
Mandamus has been served by placing same in the United States
mail on this _d__ day of j/[///)ft,? , 2015, addressed
to:
District Clerk
Harris County, Texas
8JJ
P. o. Box ~4651
Houston, Texas 77210-4651
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23 February 20'1's Jose J. Reyes
.. ·' 'I'DC No. 821821
'··• McConnell Un1t
3001 s. Bm1ly Dr. 1
Beev1lle, 'I'exas 78102
·.'
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Mr; . Abel
'J.i
Aco``a,:., Clerk
Court'~f Cr1m1nal Appeals
P. ;o. "Box 12 30!8', · Cap1 tol st. ,•
Aus.t1n, Texas·:-.,8.'1 11 ... i:
Re• ci.vse Bo.· 752079-A (Count 2)
BxParte Retyes
Deay wr1~; etter
., '
De~r fr· Acosfa, Appeal Clerk:
~.
On Januarg, S, 201S, the State's Proposed F1nd1ng~
of f!lct, conc1.us1ons of law and order was f1led w1th the
court. In tha`` same Mot1dn, the State cla1med the mot1on
wa~ s~nt to th~ tourt of Cr1m1nal Appeal.
~ .. : .
Here 1t `` ~ebruary 23, 2015, ~nd I haven't rece1ved
a nwh1te Card\ from the Court of Cr1m1nal Appeal 1nform1ng
me th{Jt the wr·1t was now pend1ng 1n that court.
~.
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iunderst1:ind to ga1n IJome t1me the court entered order
ektend1ng the:statutory t1me 11m1ts a pract1ce condemned
1n · McCree v. :H·ampton, 8 24 S.W. 2d. 5 78 (Tex. Cr. App. 1 992).
Ho~evpr, that~case set out a method whereby the tr1al ~ourt
can e1ther on mot1on of the State ~r 1ts o•n 1n1t1at1v~,
ga1n more t1me'''to 1nvest1gate the allegations ra1sed w1th1n
a wr1t appl1qation.
If .the tr'lal court selects th1s opt1on but falls to
not1f} the Cou~t of Cr1m1nal Appeals and enqu1ry 1s made
to the Court ·w1 thout ment1on of the prev1ousl y entered
order des1gna~Jng 1ssue a "delayed wr1t lettern may well
be sent to th~·tr1al court w1th cop1es to the D1str1ct
clerktand d1st~1ct attorney enqu1r1ng 1nto the alleged delay.
·.it
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. I herebif·request that you conduct a 1nvest1gat1on ~nto
these matters ... an·d order the f1les to those f1nd1ngs and
trans~1t the``.long w1th the wr1t transcr1pt to the Cl~rk
of th~ Court of Cr1m1nal Appeals as requ1red by law.
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REYES·. l '·
TDC No. 82182. ·
McConnell Un11t
3001 s. Em1ly .:,,Dr.
Beev1'l}e, Texas 78102
f11es
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cc.: ~r. Chr1s ,Dan1e1
D1str.f.ct Clerk
Harr1s C.()unty D1str1ct Clerk
1201 Fran·k11n
P. o. ;;Box 4651
Houston, .Texas 77210-4651
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