Burris, Johnson Walter ( 2015 )

April30, 2015
Mr. Abel Acosta, Clerk
Court of Criminal Appeals
, P.O. Box 12308
Austin, Texas 78711-2308
Re: Ex parte Johnson Walter Burris, Cause Number: CR08-00113 (In the 294 1h Judicial
District Court of VanZandt County, Texas).
)o- Motion for Leave of Court to File Original Petition for Writ of Mandamus
Dear Clerk:
Enclosed please find the original copy of Applicant Burris' Motion for Leave of the Court to file
Original Petition for Writ of Mandamus, to be filed among the papers in the above-styled and
numbered cause pursuant to Article 11.07, V.A.C.C.P.
Thank you for your kind attention to this matter.
Sincerely,
" Applicant, Pro se
TDCJ-CID#01745516
Estelle Unit
264 FM 3478
Huntsville, Texas 77320
Enclosure
Cc: Abel Acosta, Clerk
Court of Criminal Appeals
File
RECEIVED IN
COURT OF CR!Mif\l~L APPEALS
MAV 08 2Ci5
Absl Acosta, Clerk
. ~·
WRIT NUMBER: _ _ _ _ _ _ _ _ __
(Trial Case Number: CROS-00113)
JOHNSON WALTER BURRIS, § IN
TDCJ-CID#01745516, Relator, Prose, §
§ THE
v. §
§ COURT OF CRIMINAL APPEALS
THE HONRABLE TERESA DRUM, §
ACTING IN HER OFFICIAL § AUSTIN, TEXAS
CAPACITY AS JUDGE OF THE §
263RD JUDICIAL DISTRICT COURT §
OF VAN-ZANDT COUNTY TEXAS, §
Respondent. §
APPLICANT BURRIS' MOTION FOR LEAVE TO FILE ORIGINAL
APPLICATION FOR WRIT OF MANDAMUS WITH BRIEF IN SUPPORT
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Johnson W. Burris, TDCJ-CID#01745516, Relator, prose, in the
above-styled and numbered cause and files this, his Motion for Leave to file Original
Writ of Mandamus with Brief in Support, pursuant to Article 11.07, Section 3(C) of the
Texas Code of Criminal Procedure and in support thereof would respectfully show the
Court as follows:
I.
Relator
1. Johnson w·. Burris, TDCJ-CID#Ol745516, is an offender incarcerated in the
Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID"),
and is appearingpra se, and can be located at: Johnson W. Burris, TDCJ-CID#01745516,
Estelle Unit, 264 FM 3478, Huntsville, Texas, 77320.
Burris Writ of Mandamus
2. Relator has exhausted all his remedies and has no other adequate remedy at law.
3. Relator filed his original Application for Writ of Habeas Corpus on or about May
31, 2014, with the clerk of the convicting court. Texas law requires the clerk of the
district court to serve a copy of the Relator's writ of habeas corpus be served by the
district clerk upon the district attorney within 15 days of Applicant filing his writ of
habeas corpus application. After the expiration of the time allowed for the State to
respond has passed the trial court is allowed 20 days to determine whether the application
contains allegations of controverted, previously unresolved facts material to the legality
of the applicant's confinement exist. Art. 11.07, §3(c). If the trial court determines that
the application for writ of habeas ·corpus presents such issues it "shall enter an order
within 20 days of the expiration of the time allowed for the state to reply, designating
issues of fact to be resolved." Id. In the present case, the trial court has not designated
issues to Relator's knowledge; therefore, the habeas writ application should have been
transmitted to this Court on or about July 03, 2014, but has not been transmitted as ofthis
date.
4. To date, no designation of issues has been entered by the trial judge and Relator's
application seeking habeas corpus relief has laid fallow since the date of its filing almost
(
one-year ago.
5. The act sought to be compelled is ministerial, not discretionary in nature. The
Texas Code of Criminal Procedure, Art. 11.07 Section 3(c) require~ Respondent to
immediately transmit to the Court of Criminal Appeals a copy of the application for writ
of habeas corpus, any answers filed, and a certificate reciting the date upon which that
finding was made, if the convicting court decides that there are no issues to be resolved.
Burris Writ of Mandamus 2
. •'
No copy of the application for writ of habeas corpus, any answers filed, and a certificate
reciting the date upon which that finding was made and transmitted to the Court of
Criminal Appeals. Had Respondent directed such documents be transmitted to the Court
of Criminal Appeals as required statute, Relator would have received notice from this
Court. Petitioner avers that while the trial court has not in fact designated issues requiring
resolution and Relator's writ of habeas corpus application has been pending in the trial
court for approximately eleven (11) months since that time, which is inherently
unreasonable.
II.
RESPONDENT
5. Respondent, the Honorable Teresa Drum, acting in her official capacity as Judge
of the 294th Judicial District Court of Van-Zandt County, has a ministerial duty to
resolve issues she may designate requiring resolution and resolve said issues by all
customary means in a timely manner, as the Great Writ is one of expediency so as to
avoid innocent citizens from languishing in pnson needlessly. Judge Teresa Drum,
presiding judge ofthe 294th Judicial District Court ofVan-Zandt County, Texas, may be
served at her place of business at: Judge Teresa Drum, presiding Judge of the 294th
Judicial District Court of Van-Zandt County, Texas, Van-Zandt County Courthouse
121 E. Dallas St., Suite 301, Canton Texas, 75103.
Burris Writ of Mandamus 3
III.
Violation of Article 11.07 of the Texas Code of Criminal Procedure
3. The Respondent violated Article 11 07 Section 3(c) of the Texas Code of
Criminal Procedure by failing to provide a copy of the application for writ of habeas
corpus, any answers filed, and a certificate reciting the date upon which that finding was
made to the Court of Criminal Appeals within the time prescribed by law and within a
reasonable time from the date on which the documents were requested to be transmitted.
4. Numerous requests for the transmittal of the application for writ of habeas corpus,
any answers filed, and a certificate reciting the date upon which that finding were made
have gone unanswered. Relator has made several requests in Ex parte Johnson Walter
Burris, No. CR08-00113, to the Honorable Teresa Drum, Presiding Judge of the 294th
Judicial District Court of Van-Zandt County, Texas, and to Karen L. Wilson, Van-Zandt
County District Clerk, by first-class mail requesting compliance with the statutory
provisions, to no avail.
5. To date, Relator has received no response from Respondent regarding Relator's
request for transmittal of a copy of the application for writ of habeas corpus, any answers
filed, and a certificate reciting the date upon which that finding was made to the Court of
Criminal Appeals.
6. As is clear from the record before the Court, Relator has repeatedly put
Respondent on notice that Relator seeks the copy of the application for writ Of habeas
corpus, any answers filed, and reciting the date upon which that finding was made to the
Court of Criminal and that such records are required by the Court of Criminal Appeals to
Burris Writ of Mandamus 4
act on Relator's writ of habeas corpus. Relator has gone well beyond any requirement or
obligations imposed upon him by the Texas Code of Criminal Procedure. In contrast to
Relator's efforts, Respondent has wholly failed to comply with the Texas Code of
Criminal Procedure, Article 11.07 Section 3(c), and is acting in bad faith, and has also
failed to afford Relator the professional and common courtesy of any written responses to
his correspondence and requests.
7. Article 11.07 Section 3(c) clearly was promulgated to ensure the writ be one of
expedience, not to be placed on the back burner of the trial court's docket indefinitely.
IV.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Relator, Johnson W. Burris,
TDCJ-CID#01745516, proceeding in pro se, respectfully requests a finding that the
Respondent has not resolved the issues designated for resolution or if Respondent has
done so, she has wholly failed to direct the clerk of the court to transmit documents to the
Court of Criminal Appeals within a reasonable time after the date the issues in question
were resolved and that Relator brought this litigation in good faith and has substantially
prevailed. Relator prays for an Order directing Respondent to direct the clerk of the court
to transmit a copy of the application for writ of habeas corpus, any answers filed, and a
certificate reciting the date upon which that finding was made to the Court of Criminal
Appeals as directed in Article 11.07, Section 3(c) of the Texas Code of Criminal
Procedure.
Burris Writ of Mandamus 5
.. ·~ .
SIGNED on this the 30th day of April 2015.
Respectfully submitted,
ohnson W. Burris Relator, Prose
DCJ-CID#01745516
stelle Unit
264 FM 3478
Huntsville, Texas 77320
CERTIFICATE OF SERVICE
I, Johnson W. Burris, TDCJ-CID#01745516, Relator, prose, herein certify that I
have sent a true and correct copy of this instrument to the Respondent, by placing same,
in a U.S. mail box, first-class, postage paid, addressed to:
Judge Teresa Drum, Presiding Judge
294th Judicial District Court
Van-Zandt County, Texas
P.O. Box 4651
Houston, Texas 77210
SIGNED on this the 30th day of April2015.
Burris Writ of Mandamus 6