in Re Randy Henderson ( 2015 )

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IN RE: RANDY HENDERSON
Original Mandamus Proceeding
Trial Court Cause No. O3-F-0146-202
TO THE HONORABLE JUSTICES OF TI-[E COURT OF`` APPEALS:
' Relator, Randy Henderson,' pro se, hereby files this Petition for Writ
of Mandamus pursuant to Article V, § 5, of the Texas Constitution, and would
respectfully Show as follows:
l .
JURISDICTION
"This court is empowered by Article V, § 5, of the Texas Constitution
'to issue Writs of Mandamus in all criminal law niatters." See ex rel. Heal-
e v. McMeans, 884 S.W.Zd 772 (Tex.Cr.App. 1994).
II.
RELATOR
Randy Henderson, TDCJ-CID NO._1170754, is an offender incarcerated in
the Texas Department of Criminal Justice and is appearing pro se, who can
be located at: George Beto Unit, 1391 FM 3328, Tennessee Colony, Texas
75880-5000.
The act sought to be compelled is ministerial, not discretionary in na-
ture.
III.
RESPONDENT
Respondent Leon F. Pesek, Jr., Judge, for Bowie County's ZOan District
Court, in his capacity as District Judge, has a ministerial duty to provide
Relator with the opportunity to be heard.
IV.
ADEQUATE LEGAL REMEDY
Relator has no other adequate legal remedy.
v.``
STATEMENT OF THE CASE
Relator, on or about October 16, 2014, filed his Motion for Judgment
Nunc Pro Tunc Order in relation to a clerical error regarding Relator's sen-
tence the Court added without a judicial proceeding. See Appendix A - Motion
for Judgment Nunc Pro Tunc Order.
VI.
DUE PROCESS VIOLATION
Due process of law affords Relator the opportunity to be heard. See
In re Christensen, 39 S.W.3d 250 (Tex.App. -Amarillo ZOOO); U.S.C.A. CONST.
AMEND. 14. Relator asserts that the District Court violated the Due Pro-
cess clause of the U.S. Constitution, 5th and 14th Amendment by not allow-
ing Relator the opportunity to be heard;
VII.
UNREASONABLE DELAY
Relator filed his Motion for Judgment Nunc Pro Tunc Order on or about
October 16, 2014. More than sixty (60) days have expired which contributes
to an "unreasonable delay" in regards to an illegal sentence. See Baranowski
v. State, 176 S.W.3d 671, 675 (Tex.App. -Texarkana 2005). See Appendix B -
Relator's Unsworn Declaration [Affidavit].
WHEREFORE, PREMISES CONSIDERED, Relator, pro se, respectfully request
this Honorable Court to Issue Mandamus to compel the Respondent to afford
him the opportunity to be heard.
Respectfully submitted,
5
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Randy enderson, Pro se
CERTIFICATE OF SERVICE
I, Randy Henderson, do hereby certify that a true and correct copy of
Relator's Petition for Writ of Mandamus has been served by United States
. 3 "
Mail addressed to:
Leon F. Pesek, Jr., Judge
Bi-State Justice Bldg.
100 N. State Line Ave."
Box 10 ``
Texarkana, Texas 75501
_ \\ o “A
APPENDIX B
RELAIoR'S UNSwoRN DECLARATION [AFFIDAVIT]
IN THE COURT OF APPEALS
FOR THE SIXTH SUPREME JUDICIAL DISTRICT OF TEXAS
TEXARKANA, TEXAS
NO.
IN RE: RANDY HENDERSON
Original Mandamus Proceeding
Trial Court Cause No. 03-F-0146~202
Unsworn Declaration [Affidavit] of Randy Henderson
Pursuant to Civil Practice and Remedies Code
Sections 132.001-132,003
My name is Randy Henderson. l am over eighteen years of age, of sound
mind, capable of making this [affidavit] unsworn declaration, and personally
' acquainted with the facts herein stated.
1. l filed a Motion for Judgment Nunc Pro Tunc Order on or about Octoberv
16, 2014, with the 202nd Judicial District Court of Bowie County, Texas,
regarding a clerical error that extended my sentence, adding another
fifteen (15) year sentence without a judicial proceeding.
2. More than sixty-days (60) days have passed, contributing to an unreason-
able delay.
3. Due process of law affords me the opportunity to be heard.
»
My name is Randy Henderson, my date of birth is August 27, 1964, and my
inmate identifying number, is, 1170754. I am presently incarcerated in the
George Beto Unit in Tennessee Colony, Anderson County, Texas 75880. l declare
under the penalty of perjury that the foregoing is true and correct.
Executed on the 321 day Of ignqu , 2015.
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AFF _
APPENDIX A
MOI‘ION FOR JUDGMENI`` NUNC PRO TUNC ORDER
lO``lL»,»~ Iq mva '
CAUSE NO. O3-F-Ol46-202
RANDY HENDERSON,
Appellantj
lN THE 202ND JUDICIAL
DISTRICT COURT OF
V.
(/.``/)C/.``/)(/.``/J¢/``./J¢/.``/l
BOWIE COUNTY, TEXAS
(/.``/J
THE STATE OF TEXAS,
Appellee.
V.``/)
HEARING'REQUESTING
MOTION FOR JUDGMENT NUNC_PRO TUNC ORDER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Randy Henderson, Appellant, Pro se, Pursuant to Texas Rules
of Appellate Procedure, specifically Rule 23.2(a) and (b), files this Motion
for Judgment Nunc Pro Tunc Order in the above entitled and numbered cause,
and in support would respectfully show:
l.
JURISDICTION
The Court has jurisdiction pursuant to Texas Rules of Appellate Proce-
dure, rule 19.3(a), which invests the trial court with authority to correct
clerical errors after expiration of a court's plenary power. "Nunc Pro Tunc
order is the proper mode to correct a clerical error, in which no judicial
reasoning contributed to their entry, and for some reason were not entered
of record at the proper time.‘See Alvarez v. State, 605 S.W.Zd 615 (Tex.Crim.
App. 1980); Jenkins v. Jenkins, 16 S.W.Bd 473.
II.
- STATEMENT OF THE CASE
j Appellant appearing before the Honorable Bill Peek, presiding in the
202nd Judicial District Court of Bowie County, Texas on May 1, 2003, having
entered a plea of not guilty; sentenced to twenty (20) years in Count Six
to run consecutive with Count Five (5), a fifteen (15) year sentence. Count
One (1), Three (3)_and Four (4) to run concurrent with Count Five (5) and
Six (6).
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Ill.
CLERICAL ERROR _
The Texas Department of Criminal Justice (TDCJ) records reflect that
Appellant's time calculation is erroneous, which manifest a clerical error.
According to the Inmate Tracking System Commitment Data Form dated January
15, 2014, Appellant's Maximum Expiration date changed from 2023 to 2038 which
adds a new fifteen (15) year sentence. This form States, in pertinent: "Due
to legal opinion from OGC Counts 5 & 6 will only be stacked to CT 3 & 4."
The Judgment of Conviction reflects that 3 & 4 as well as 1_is concurrent
to 5 & 6. By stacking this to 5 & 6 adds a new sentence without a judicial
proceeding. The State Counsel for Offenders returned count seven (7)§ not guilty.
Appellant, therefore, seek an order from the Court ordering TDCJ to ad-
just the inaccuracies and deficiencies in Appellant's records in regards to
his sentence.
WHEREFORE PREMISES CONSIDERED, Appellant for reason shown moves the Ho-
norable Court to issue the necessary Court Order ordering that the Texas De-
partment of Criminal Justice records reflect the truth of what actually occur-
red.
Respectfully submitted,
k.
f\,
Randy Henderson, Pro se
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