Carballo, Leeroy Cesar ( 2015 )

June A'\ ., 2015
Leeroy Cesar Carballo
TDCJ-CID # 1462910
Pack Unit
2400 ..wallace Pack Rd.
Navasota, Texas 77868
Louise Pearson
Clerk, Court df Criminal Appeals
P.O. Box 12308
Capitol Station
Austin~ Texas 78711
RE: Request to file "Original Application Fat Leave and For Writ
of ·Mandamus"
Dear Clerk:
Please find "Relator's" (Original Application For Leave and
For Writ of Mandamus) to be filed in this Court and brough.t to
the Honorable Judges at tent ion as time allows you .to. do so. Also,
included is a S.A~S.E~ for your conveince with the request that
you please file-stamp this cover letter and mail baek to me. A
copy of this cover letter is also included. If the original of
this cover letter must be filed, then.please just file-stamp the
copy of it and return it to me.
Th~nk you ahead of time for your assistance in this matter!
REOEIV·. -.IN
\OOUfit'~CMMNM. ~S
JUN 2~ 2015
submitted.
~-
EEROY CARBALLO
Relator - pro se
P.S. Also included~ please find and file the Relator's ''MOTION TO
SUSPEND TRAP, RUL~ 9.3(b) AND FOR LEAVE TO FILE WRIT OF
MANDAMUS ,. ··~ .
Case No.
Initial Writ No. 1097497-A/. Habeas Corpus
ln re LEEROY CESAR CARBALLO, § COURT OF CRIMINAL APPEALS
TDCJ-CID #1462910, s
~
Relator, §
§
vs. § IN
§
CHRIS DANIEL, §
Harris County District Clerk § AUSTIN, TEXAS
'.MOTION/TO·· SUSPENiiL
TRAP .. :RULE :g. 3(b)·
" ·;.AND FOR'LEAVK··T0 1 FILE.
' WRIT<' OF. MANDAMUS.
TO THE HON0RABLE ,JUDGES OF SAID COURT:·
NOW COMES, LEEROY CESAR CARBALLO~ TDCJ~CID # 1462910, Relator,
acting pro se, aud files this his own "Mot·ion to suspend TRAP,
Rule 9.3(b)," copy requirement, "and for Leave to File Writ of
Mandamus," and in so doing_, will show this·Most Honorable Court
the following; to wit:
I. TEXAS RULES 0F APPELLATE PROCEDURE, . RULE 9. 3 (b)
Pursuant to TRAP Rule 9.3(b) copy requirement, "A party must
file the.original and 11 copies of any document addr~ssed to e~ther
the Supreme Court or ·the Court of Criminal Appeals, except that only
the original of the ·follo~ing must be filed i~. the Court of Criminal
Appeals:
(1) a motion for an extension· of time or a. response to the
motion; or,
(2) a pleading under Code of Criminal Procedure, Article
11.07."
II. DIS.CUSSION
Relator, because of.his incarceration and indigency is unable
to file the required 11 copies and can·only provide one original
to the Court and the carbon copies to the parties involved •
. ( 1)
'
Petitioner is a layman at· law~ unskilled as licensed attorneys.
and unable to acquire the required copies because of his incarcerat-
ion. Being such, Relator requests that this Court invoke ·TRAP Rule
2 to suspend Rule 9.3(b) and allow Relator to file one original of
his motion(s) and ~rit to the Court.·
III: PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, The Relator,·acting prose, PRAYS
that this Most Honorable Court GRANT the Relator.' s request invoking
TRAP, Rule #2 to suspend Rule' 9. 3'( b.), copy requirement, allow the
Relator to file one original Writ of Mandamus to the Court while
properly serving the parties with a carbon copy of'such.pleading.
Relator also requests· ·that this Court . GRANT this motion for
leave tha L must be accompanied with the Relator's writ of mandamus.
RESPECTFULLY SUBMITTED~
-UNSW0RN BECLARAT-10N-
I·, LEER0Y:CESAR CARBALL0., (TDCJ-.GIB) '11462910, born on .11-30-.78,
do as ser;t · that I' am ctirren tly incareer.a ted in·:· th.e Texas Department
of Criminal Justice - Institutional Divi~ion'on the Pack Unit·-
2400 Wallace Pack Rd .. , in Navasota;. Texas (77868) in Grimes County,
Texas, do declare· under the penal t·y of perjury ·t:ha t the above facts
mentioned in .this motion are true and correct· to the best of my
knowledge.
Executed on this ~3 392 S.W.3d 115~
117~118 (Tex.Crim.App. 2013); Tex. Code Crim. Proc. Ann. art. 11.07
(West Supp. 2014)
II. RELATOR
Leeroy Cesar Carballo, TDCJ~CID.# 01462910, is an offender
incarcerated in the Texas Department ofCriminal Justice.- ID~ and
is appearing prose~ who can be located at the Pack Unit.-2400
Wallace Pack Rd .. -, Navasota,. Texas 77 868. · Relator has. exhausted
his remedies and has no other adequate remedy at law. The act
sought to be compelled is min~sterial~ not discretionary -in nature.
(1)
III. •.. RESPONDENT .
Chris Daniel, "Respondent" is the current Harris County
District Clerk
IV •. PROCEEH:JRAL. HISTORY
The "Respondent'' .ft led the "Relator.' s" initiaL pos·t conviction
application for. Wr.it of Habeas Corpus '·pursuant to Article 11.07 of
Texas code of Criminal.Procedure on September 28, 2011. See:
"EXHIBIT #1" attached. The "State"' then filed a "M(Ytion Requesting
Designation of Issues" on October 6, '2011. See: '''EXHIB•IT #2''
attached. o Pursuant to Article lL 07·, §3(d), "the. Courtf adop·ted. the
State's P·roposed' Order. Designating, Issues, ,See: "EXHIBIT #3" on
October 20~ 2011. (also attached)
On or about November 2nd, 2013, · the "Relator" mailed the
"Respondent" an amended/supplemented application forwrit of
habeas corpus . (Tex. Code Crim. Proc. , art. ·11. 07) , a ( 85 page)
memorandum of .law w/ (8) eight new exhibits attached. 1 207 S.W.3d 785(Tex.Crim.App,. 2006); Deleon v.. Dist. Clerk,
Lynn County, 187 S.W.3d 473~ 474 (Tex. ,Crim •. App . 2006) Because the
"'Relator" has no right to appeaL the "Responden.t' s" refusal to
properly 'f i'le his "amended/supplemented" .·hab-eas application, new
memorandum of law, with -(8) eight new exhibits, and have his exhibits
that were attached to his prior application included with his new
filings, "Relator" has no remedy at law.
The "Relator" wrote the "Respondent"· multiple times request-
ing that his new application and filings be assigned a. cause number,
if needed,· and forwarded:to the trial court for consideration. The
"Relator" indicated in his letters thBt· he did not wish for his
filings to be construed as a s1:1bsequent writ: but as an application
where he has stated all of the facts supporting his grourtds.
In essence, 'the "Relator" requested that .his amended/supplemented
writ of habeas ~orpus be filed whi.le .his tither writ concerning the
same cause was/is pending bef:c;>re the Court.
·2aelator'·s un1f of as~1gnment does n6t allow inmate~ to photocopy
tlrir ~ \\Urk •. 'lh= Relator is urnble to_~ a CCJP.r' of this rrotim rrent:i.cnrl that is ~
_tp 1:e in tre District Clerk's office, fil.Erl prqELly.
(3)
The "Relator" r.ecognized the deficiencies in his initial
application and brief on file while working pro se and sought to
correct his· mistakes pro se. The "Relator". relied on Trevino v.
Thaler:,: a· Supreme Court case as grounds in support of allowing
him to amend/supplement his application. The "Relator's" motion
to amend/supplement was attached to ·his .cover.' letter. See cover
letter: "Exhibit # 8"
:. The· ''Relator" has received. no response i'ndm.c'a'.t:~ng :that his
new filings were ever filed,. assigned a new. number, if needed, or
that they=were ever forwarded··to the trial court or to this
Honorable Court of Criminal Appeals.
According to Benson :V·. ·!District Clerk,. Montgomery: County~
331 S.W.3d 431 (Tex. Crim. App. 2011):
"Whether a habeas corpus applicant has other applications
pending.is·irrelevant to the district cletk's ~uty to receive
file~ and forward habeas corpus applicati6ns under:Article 11.07''
Id. at 432
VI. PRAYER FOR RELIEF
····'.
WHE~EFORE: PREMISES CONSIDERED, Relator respectfully requests a
finding that Respondent did ~ot fulfill his ministerial duty
according to the Tex. Code Crim. Proc. art. 11.07 §3(b) and that
Relator brought this litigation in good faith and has substantially
prevailed. Relator prays fot an ORDER directing Respondent to file-
stamp Relator's amended/supplemented habeas application with the
memorandum of law and 8 (eight) exhibits that were attached with
a date within November of 2013 and to attach with his new filings
"exhibits (A, B: C: & D) that were attached t:o his filings on
9-28-11. Also~ . if the law so requires, that the "respondent"
assign the "amended/supplemented" application a new number and
forwarded to the trial court or to this Honorable Court along
(4)
tHth the "Relator's" motion to "amend·applicationof writ of
habeas corpus" that Relator asserts that he attached to his
cover letter that .was file-stamped by the_Bfstrict Clerk. See:
"EXHIBIT#8" attached.
Last~ that the ''Respondent" '.be'>ORDERED>to send'· ·the Relator
a copy of the docket sheet that indicates all .the· letters, documents,
pleadings that have been filed with their filing dates pertaining
to the Relator's proceedings=on his writ of habeas corpus under
the herein mentioned cause nu~ber.
Date: June ``.-=---'2015
-UNSWORN: DECLARATION-
I, LEEROY' CESAR CARBALLO, .(TDCJ-CID) # 014629:10~ date· of 'birth
being on 11-30-1978, do assert that I'am. currently ... incarcerated
in the Texas Department o:£ Criminal Justice - InstitutionaL
Division on ·the Pack Unit - 2400.W~llace Pack Rd. in Navasota,
Texas ( 7 7 868) in Grimes Cotm ty, · Texas~ do .. d~cl:are under· the
penalty of perjury that the above facts, fil~ngs mentioned, and
exhibits are both true and .corree t to ·the best of. my knowledge.
Executed on this ) ~ day of June,
-CERTIFICATE·· 0F SERJZICE-
I, Leero,y Cesar Carballo.,#1462910 ~ 'further .. certify that I sent the
o:riginal copy of this "Ap.plicatioil for Leave and· For Writ of
Mandamus " by first:~elass· mail~. postage prepafd to: Louise Pearson.
Clerk~ Court 0f CriminaL Appeals, P.O.Box 12308, Capitol Station,
Austin. Tx~78711 and· a carbon copy, mailed .in likewise rrianner to:
State ~rosecuting Attorney~. P~O. Bbx"12405i Austiri,, Tx. 78711 and
to the Res.ponden t · : Chris DanieL, Harri::; County Dis 1trict Clerk~
P.O.Box 4651 Houston,. Tx.· 77210 Oil.;JUN" ¢~ ~"~5 L C4£
( 5) L ~SAR CARBALLO .
"EXHIBIT # 1"
CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
September 28, 2011
LEEROY CESAR CARBALLO
#01462910- WAYNE SCOTT UNIT
6999 RETRIEVE RD .
. ANGLETON,TEXAS 77515
RE: CAUSE #1097497-A
1"'9th District Court
Dear Applicant:
Your post conviction application for Writ of Habeas Corpus was received and filed on 9-28-11.
Article J 1. 07 of the Texas code of Criminal Procedure affords the State 15 days in which to
answer the application after J:aving been served with said application. After the 15 days allowed
the State to answer the application, the Court has 20 days in which it may order the designation
of issues to be resolved, if any. If the Court has not entered an order designating issues to be
resolved within 35 days after the State having been served with the application, the application
will be ·forwarded to the Court of Criminal Appeals for their consideration purstiimt to Article
11.07, Sec. 3(c)ofthe Texas Code of Criminal Procedure.
The records of the office reflect the following:
CAUSE NO. PETITION FOR WRIT OF HABEAS CORPUS DISPOSITION
All future correspondence shoul_d indicate the above listed cause number.
...
"
'
.' • ; # •• •· •
• '! ... ,
: l ·' .•' -.,_I
Lou.Jefferson, Deputy
Criminal Post Trial
CC: District Attorney
Judge, Presiding Court
1201 FRANKLIN • P.O. Box 4651 • HOUSTON, TEXAS 77210-4651 • (888) 545-5577
PAGE I OF I REv. 01-02-04
"EXHIBIT # 2"
NO. 1097497-A
EX PARTE § IN THE 179th DISTRICT COURT
§ OF
LEEROY CESAR CARBALLO,
Applicant §. HARRIS COUNTY, TEXAS
THE STATE'S MOTION REQUESTING DESIGNATION OF ISSUES
The State of Texas, by and through its Assistant District Attorney for Harris County,
requests that this Court, pursuant to TEX. Co bE CRIM. PROC. art. 11.07, §3(d), designate the
following issues which need to be resolved:
1. Whether the applicant received effective assistance of counsel at trial.
2. Whether the applicant received effective assistance of counsel on appeal.
Service has been accomplished by mailing ·a true and correct copy of the foregoing
instrument to the following address:
Leeroy Cesar Carballo
#1462910- Wayne Scott Unit
6999 Retrieve Rd.
Angleton, TX 77515
SIGNED October 6, 2011.
Re~tf~llf.binitte ,
~Keating
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-6657, (713} 755-5809 (fax)
Texas Bar I.D. #00787813
j
~ ... · i .
"EXHIBIT # 3"
NO. 1097497-A
.........
...
. · EXPARTE § IN THE I 79th DISTRICT COURT
-·
§ OF
LEEROY CESAR CARBALLO,
Applicant § HARRIS COUNTY, TEXAS
THE STATE'S PROPOSED ORDER DESIGNATING ISSUES
. Having reviewed the applicant's application for writ of habeas corpus, the Court finds
that the following issues need to be resolved in the instant proceeding:
1. Whether the applicant received effective assistance of counsel at trial.
2. Whether the applicant received effective assistance of counsel on appeal.
Therefore, pursuant to Article 11.07, §3(d), this Court will resolve the above-cited issues
and then enter findings of fact.
The Clerk of the Court is ORDERED NOT to transmit at this time any documents in the
above-styled case to the Court of Criminal Appeals until further order by this Court.
By the following signature, . ·
the Court adopts the State's Proposed Order Designating Issues.
SIGNEDonthe_. _day£~
PRESIDING JUDGE
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2. Article Number
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I 'E»>IBBT # r:J I '
MARCH 5TH, 2014
LEEROY CESAR CARBALLO
01462910
pack unit
2~00 WALLACE PACK RD.
RE: CAUSE #1097497-A
NAVASOTA, TEXAS 77868
CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
P.O. BOX 4651
HOUSTON, TX. 77210-4651
DEAP. CLERK:
ON OR ABOUT NOVEMBER 2ND; 2013, I MAILED YOU MY APPLICATION
FOR A WRIT OF HABEAS CORPUS IN ACCORDANCE WITH ARTICLE 11.07 OF THE
TEXAS CODE OF CRIMINAL PROCEDURE; A MEMORANDUM OF LAW IN SUPPORT
OF, AND EIGHT EXHIBITS (ATTACHMENTS) TO BE INCLUDED IN. I RECEIVED
MY CERTIFIED RETURN RECEIPT INDICATING THAT MY MAIL WAS RECEIV~D
ON NOV - 6, 2013 BY A "ARTHUR SIMPSON".
PLEASE ASSIGN MY APPLICATION A CAUSE NUMBER IF NEED BE AND
FORWARD IT TO THE TRIAL COURT FOR CONSIDERATION. I DO NOT WISH
FOR THE COURT TO CONSTRUE THIS APPLICATION AS A SUBSEQUENT WRIT,
-
BUT AS A GOMPLIANT APPLICATION WHERE I HAVE STATED ALL OF MY
GROUNDS SUPPORTING MY CLAIMS THAT I WISH THE COURT TO CONSIDER.
I WISH TO PTIOCEED WI1H THE NEW HABEAS APPLICATION, MEMORANDUM
OF LAW, AND EIGHT EXHIBITS (ATTACHMENTS) tHAT WEFE RECEIVED BY
YOUR DEPARTMENT ON NOV -6, 2013, AND HAVE INCLUDED "EXHIBITS A,B,
C, & D" THAT WERE ATTACHED TO MY FILINGS ON 9-28-11.
I STRONGLY BELIEVE THAT I HAVE NOW RAISED A COLORABLE CLAIM
OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPEAL COUNSEL IN MY NEW
HABEAS APPLICATION AND MEMORANDUM OF LAW.
DBCLABATSgs.
I, LEEROY CESAR CARBALLO, 15e -eiD #1462910,Applioant,pro-ae•
do d8olare under penalties of perjury that the 11.07 APPLICATION,
w/ memorandum of law, and eight exhibits (attached), that were re-
ceived by certified mail by your department are true and correct
to the best of my knowledge and that I pray for relief and believe
that I'am ·entitled to REDR&SS. ~-~-
EXECUTED ON THIS THE ,.':). ~--\ .. DAY OF '\' ~- _ .. _ . __ ,@014 • •
--- R``PEcfFOCLY SUBMITTED, ,r
Q (' (' ,{)._00 ...
~-~tt~
*lpplicant- pro-se *
"EXHIBIT # 6"
JUNE 6, 2)b 14
LEEROY CESAR CARBALLO
II 01462910
Pack Unit
2400 WALLACE PACK RD.
NAVASOTA, TX. 77868
CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
P.O. BOX 4651
HOUSTON,TX 77210
RE: WRIT # 1097497-A
MR. DANIEL:
ON 11-2-2013, I MAILED YOU MY AMENDED APPLICATION (writ of
habeas corpus]T.C.C.P. art.11.07]) form, my memorandum of law in
support of, & ~ight exhibits (attached). I received
;:
my certified
return receipt indicating that my ma~l was received on 11-6-2013
by an "ARTHUR SIMPSON".
I'M REQUESTING AGAIN, THAT MY "AMENDED'' APPLICATION BE ASSIGN-
ED A CAUSE NUMBER IF NEED BE AND FORWARD IT TO THE 179TH DISTRICT
'·.
''
COURT FOR CONSIDERATION. IT IS NOT A SUBSEQUENT WRIT, BUT AN "AMENDED'',
COMPLIANT APPLICATION THAT STATE ALL OF THE GROUNDS·! WISH THE COURT
TO CONSIDER.
I WISH TO PROCEED WITH THE "AMENDED" APPLICATION, "RECONSTRUCtED"
MEMORANDUM OF LAW, 8 EXHIBITS (ATTACHED), THAT WERE RECEIVED ON
11-6, 2013, AND HAVE "EXHIBITS-A,B,C, & D" THAT WERE ATTACHED TO
MY PLEADINGS FILED ON 9-28-11.
DECLARATION
I, LEEROY CESAR CARBALLO, 1462910, APPLICANT-pro se, DO DECLARE
UNDER PENALTIES OF PERJURY THAT MY "AMENDED" 11.07 APPLICATION,"RE-
CONSTRUCTED" MEMORANDUM OF LAW, & 8 EXHIBITS (ATTACHED) THAT WERE
RECEIVED BY CERTIFIED MAIL BY YOUR DEPARTMENT ARE TRUE AND CORRECT
TO THE BEST OF MY KNOWLEDGE AND THAT I PRAY FOR RELIEF AND BELIEVE
THAT I'M ENTITLED TO REDRESS.
EXECUTED ON THis9jh .. DAY OF Jupe_, ,20!.:L_.
RESPECTFULLY SUBMITTED,
~b C'o.n~MIO ·
LEEROY CESARBI&BBALLO
1/1462910
CCI FILED Applicant - pro se
"EXHIBIT # 7"
JUNE 9, 2014
LEEROY CESAR CARBALLO
fl 01462910
PACK UNIT
2400 WALLACE PACK RD.
NAVASOTA, TX. 77868
CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
P.O. BOX 4651
HOUSTON, TX.77210
RE:* UPDATING MY NEW ADDRESS
* REQUESTONG A DOCKET SHEET OR TO KNOW THE STATUS
OF MY WRIT (11.07)
MR. DANIEL:
'
I WROTE TO YOU ON 3-5-2014 FROM THE ABOVE ADDRESS AND HAVE
NOT HEARD FROM YOU. I'M WRITING AGAIN TO INFORM YOU THAT THIS
ABOVE ADDRESS IS MY NEW ADDRESS. PLEASE UPDATE THIS ADDRESS AS
CURRENT FOR THE COURT'S RECORD.
IN ADDITION; I'M REQUESTING A COPY OF MY DOCKET SHEET PERTAIN-
ING TO MY WRIT OR TO BE INFORMED OF THE STATUS OF MY WRIT. HAS MY
"AMENDED" APPLICATION THAT WAS RECEIVED BY YOUR DEPARTMENT ON 11-6-2013
ASSIGNED A NEW WRIT NUMBER. MY ORIGINAL APPLICATION HAS BEEN
PENDING FOR OVER 2! YEARS NOW IN THE 179TH DISTRICT COURT. PLEASE
RESPOND WITH ANY INFORMATION CONCERNING THIS MATTER.
RESPECTFULLY SUBMITTED,
~.Cmm CJJ1b ~ I~
LEEROY CESAR CARBALLO
111462910
APPLICANT - pro se
CC/FILED
"EXHIBIT # 8"
JJN~ 23, 2014
LEEROY C``AR CARBALLO
TDCJ-CID #01462910
PACK UNIT
2400 WALLACE PACK RD.
NAVASOTA, TX. 7786~
CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
P.O. BOX i-1651
HOUSTON, TX. 7'7210
RE: *REQUESTING ENCLOSED MOTION TO BE FILED AND FORWARDED TO T~E
PRESIDING JUDGE 0? THE 179TH DISTRICT COURT.
!"'--
DEAR MR. DANIEL:
El'JCCOSED, PLEASE FIND A "MOTION TO AMEND APPLICATION OF WRIT OF
HABEAS CO~PUS FILED UNDER TX. CODE CRIM. PROC. ART.11.07''· I'm
requesting that you please file this motion and forward a copy to
the presiding Judge of the 179th District Court in Harris County.
Also, please find enclosed a S.A.S.E. for your conveneice
and file stamp a copy of this letter that I'm sending you and return
to me.
I thank you for your help in this matter!!!!!
RESPECTfULLY SUBMITTED,
"EXHIBIT # 9"
May 18, 2015
Leeroy Cesar Carballo
TDC)-CID # 01462910
Pack Unit
2400 Wallace Pack Rd.
Navasota, Tx.77868
Chris Daniel
Harris County District Clerk
P.O. Box 4651
Houston, Tx. 77210-4651
RE: Notice of intent to file a writ of mandamus in regards to
application of writ of habeas corpus mailed to your aqdress.
Dear Clerk:
This letter is being sent as a notice of intent to file an
application for a writ of mandamus with th~ Texas Court of Criminal
Appeals.
"The Court of Criminal Appeals has exclusive jurisdiction to
grant relief on matters pertaining to a pending post-
conviction habeas corpus application relating to a final
conviction." See Padieu v. Court of Appeals of Texas .. Fifth
Dist .. 392 S.W.3d 115. 117-118 (Tex.Crim.Ap6. 2013); Tex.
Code Crim. Proc. Ann. art. 11.07 (West Supp. 2014 ·
The "Relator" was convicted of aggravated robbery and sentenced
to forty years imprisonment in the 179th District Court from
Harris County in cause no. 1097497. The Relator's initial post
conviction application for Writ of Habeas Corpus was received and
filed on 9-28-11 and assigned number 1097497-A.
On or about November 2nd, 2013, the Relator mailed your office
an amended/supplemented writ of habeas corpus , memorandum of law,
(8) eight new exhibits [attached]. Relator received his certified
return receipt indicating that mail addressed to you from the
Relator was received on November 6. 2013 and signed by an
" Arthur Simpson".
(1)
The Relator has written you multiple times requesting that
his new application and filings be assigned a cause number if need
be and foward it to the trial court for consideration. The Relator
has indicated in his letters that he does riot wish for the Court
to construe this application as a subsequent writ, but as a
compliant application where he has stated all of his grounds
supporting his claims that he wishes the Court to consider.
The Relator has stated in his letteres addressed to you that
he wishes to proceed with the new habeas application, memorandum
of law, and eight exhibits (attached), and requested to have included
"exhibits [A, B, C, & D) that were attached to his filings on 9-28-
11. The Relator submitted his "declaration" with his letters to
you attesting/swearing/declaring under the penalty of perjury that
these new pleadings filed are true and correct to the best of the
Relator's knowledge.
In essence, the Relator requested that you file his new writ
of habeas corpus while his other habeas corpus application concern-
ing the same cause is pending in this Court. The Relator recognized
the deficiencies in his initial application and brief on file and
sought to correct his mistakes while filing pro se.
The Relator has received no response indicating that these new
filings were ever filed, assigned a new cause number if necessary,
that they were forwarded to the trial court or to the Texas Court
of Criminal Appeals.
According to Benson v. District Clerk. Montgomery County,
331 S.W.3d 431 (Tex.Crim.App. 2011):
"Whether a habeas corpus applicant has other applications
pending is irrelevant to the district clerk's duty to receive,
file, and foward habeas corpus applications under Article 11.07"
Id. at 432(2)
Relator asserts this duty exists under Tex. Code Grim. Proc.
art. 11.07. §3(b). If these filings are not to be assigned a new
case number because of some operating pr6cedures in your department,
then these filings should have still been brought to the Court's
attention for a response or forwarded to the Court of Criminal
Appeals.
The Court of Criminal Appeals will grant relief when a relator
shows:
"(1) that the act;~ought to be compelled is purely ministerial
and (2) that there is no adequate remedy at law." Winters v.
Presidin Jud e of the Grim. Dist. No. Three, 118 S.W.3d 773,
775 Tex.Crim. App. 2003
In Relator's case, the Harris County District Clerk has a
ministerial duty to file Relator's habeas application. Tex. Code
Grim. Proc. art. 11.07, § 3(b); Aranda v. Dist.Clerk, Gaines County,
207 S.W.3d 785 (Tex.Crim.App. 2006); Deleon v. Dist. Clerk,Lynn County.
187 S.W.3d 473.474 (Tex.Crim.App. 2006) Because Relator has no
right to appeal the District Clerk's refusal to file his habeas
application. Relator has no r~medy at law.
The Relator will file his mandamus with the Court of Criminal
Appeals in (21) twenty-one days if the Relator receives no response
concerning these issues that are being brought to your attention.
Respectfully submitted.
d:··~ C~ ~Jl
eeroyesar Cara()
Relator - pro se
DECLARATION
I, Leeroy Cesar Carballo, TDCJ-CID #1462910, my date of birth
is on November 30, 1978, presently incarcerated at the Wallace Pack
Unit (TDCJ-CID), in Navasota. Texas 77868, in Grimes County, do
(3)
declare under the penalty of perjury that the foregoing facts are
true and correct to the best of my knowledge.
Executed on I