SMITHWICK, ROY LOUIS Jr. ( 2015 )

Roy L. Smithwick, Jr.
TDCJ#622814 McConnell
3001 s. Emily Dr.
Beeville, Tx. 78102
Clerk of the
eourt: of``:er. imina 1-- Appeals RECEIVED IN
P.O. Box 12308 "'"'' !eT 0~ CR.I!IJIINAL APPEALS
Austin, Tx. 78711-2308
RE: Filing
SEP 29 2U15
Clerk, ~bel Acosta, C!euk
Enclosed please find a copy of a Petition for Mandamus
filed to Compel you to Perform Ministerial Duties based;upon
a Developed Record.
Since you have not answered my question in regards to why
I am not allowed Due-Process of law to have NEW LEGAL BASIS
considerd 6n~A1Application for Relief I am left with no other
recourse to to seek my Due-Process of Law rights to consideration.
I was wrongfully convicted with false and Fabricated
Scientific Testimony which mets the bare minimum requirements for
a Fair Trial Under Art. 11.073
NO: ______________________
In THE SUPREME COURT 0~ TEXAS
tn Re ROY LOUIS SMITHWICK, JR.
PETITION FOR WRIT OF MANDAMUS
Roy L. Smithwick, Jr.
Pro-se
TOCJ~7622814
3001 s. Emily Dr.
Beeville, Tx. 78102
IDENTITY OF PARTIES
-":!""':"' .. . . . ...~· ...... ·~::
"tfEL"'i\ToR, -Is--a- pers-on confined tn'the Texas Department of Criminal
Justice and may be contacted as asdressed betow.
Roy L. Smithwick, Jr.
TOCJ~622814 McConnell
3001 s. Emily or.
Beeville, Tx. 78102
Respondent, Is ·a Clark for the Court of Criminal Appeals and
may be cont~cted at the address below.
Clerlt of' the ·
Court of Cri.mlnal ~ppeals
P.o. Box 12308, Capitol Station
Beeville, Texas 78711
T~SLE OF CONTENTS
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·tdentity of Parties --------------------------------------11.
Table of Contents-- --11.
Index of ~uthorities--------------------------------------111.
Statement of the Case-- --111>V.
Statement of Jur\sdictton---------------------------------v;
Issues Presented-- --v1.
Statement of Facts----------------------------------------V1>1.
~rguement-- --1>3.
Prayer--------------------~------------------~------------5.
Declaration-- --s.
II.
tNOEX OF AUTHORITIES
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l· Crlm. Codes and Proc. Art. § 11.07 Sec. 4a{ll&(2l~----III>5
2. Tex. Gov~ Code § 22 --v.
3. Hainesv:a~6Q``~4?4 u.s. 319,320 (1972)---------------v.
4. Wade v. Mays 689 S.W.2d 893, 897 (1985 Tex.Cr.App.)---v.
5. Ex Part(,~Neal Hampton Robbins ct,cr.J.\pp. No.73,484-~2-VI&l.
6. 83rd. Legislature, a.a. 1847, s.a. 825, & s.a. 16lt------vrr&2.
7. Will v. United States 389 u.s. 90, 96 (1967)----------4.
8. Meissner V. Fuch~, 290 S.W.2d 941, '94~ (Te``Civ.App. .
Galveston 1956)-- · - ~-4:
9. Worth~m V. Walker {133 Tex. 255] 128 S.W.2d@ 1151 (1939)3.
--5.
STATEMENT OF THE CASE
The Clerk of the Court of Criminal Appeals has set aside
the tegal Statues of Article § 11.07 Sec. 4a(ll&(2) "NEW tEGAt
B~SIS" and "CONSTITUTIONAL VIOLATIONS" by a State Prosecutor
and refused to-- Fit.E ANO SET :::;:,a Application for relief under
Article 11.073, a new statue previously unavailable for considera-
tion in a Prior Application.
The Clerk of the Court of Criminal Appeals has the Minister-
lal Duty to Obey the Courts Orders within the Satatues of Law
to provide Relator his Constitutional Due-Process of Law Rights
to have issues Addressed Under the New tegat Basis granted
by the Texas Legislature and demanded by the Pubttc.
III..
Texas Criminal Codes and Procedures ~rt. § 11.07 Sac. 4a(t)~2)
allow3 for .a successive filing if a "NEW ~EG~t BASIS" or a
"CONST!TUTION~L VIOL~TION" Occurred establLsh\ng that no rational
Juror could have found Relator guilty beyond a Reasonable Doubt.
·Legislation has enacted ~rticle § 11.073 which the Court
of · Criminal Appeals has established ls a "NEW LEGAL BASIS"-
previously unavailable for consideration in a Prior Application.
Relator is citing for the first time that the Trial Prosecutor
Kno~ln~t~ and Iritentionally violated . his Constltut\onal Rights
to a Pair Trial by· bavlng Pre-Trial knowledge that the State
Offerred Scientific _Testimony .was going to ~e ~atsifled. With
out such fabricated Scientific Evidence Relator would not have
been found Guilty beyond a Reasonable Doubt and Maintained his
innocence.
Relator has satisfied . the requir~ments for a Successive
Application Under Art. U.07 Sec. 4a(l)&(2) due to the "NEW LEGAL
BASIS" (ART. llt07Y) being previously unavailable for consideration
in a prior Application and tna State Prosecutor knowingly
~ABRICATED scientific evidence violating Relator's ncONSTITUT!ONAU'
DUE PROCESS RIGHTS TO A FAIR TRI~L" which i~a nMiscarrlage
of Justice". NOTE: Relator had no reason to suspect Fraudulent
acts were committed by the Trial Prosecuto~ but upon being suspect
Relator Excerslced DUE OILEGENCE to investigate the issue by
requesting the Scientific Records and was dented the information.
Wherefore the Clerk of the Crlminat Court of Appeals has
a Constitutional Due-Process of Law Duty to FILE AND SET FOR
IV.
. -~"-'·---·~
REVIEW Relators ~ppli.cation for Habeas Corpus Relief or at
the Minimum recomend that a Record be d_eveloped to base a .de.cisi()n.
' ,.
S'l'i\TEM'f!:NT 0&" 3URISDIC'l'tON
The Supreme Court of Texas has Jurisdiction to Hear Issues
of Constitutional Civil Due-Process of taw Rights granted by
the Texas tegi.slatio~ tnat requires the Performance Of Ministerial
Duties of a St.ata·· · Official Clerk, Under Tex. Gov. Code i 22 •
. ·. . '.
Relator. has presented. this·.i.ssue to .. the Court of Criminal
'·. .·- .. _ ~ ;· • ;;.; ·' •. ·. ·.- ~· ``- ·-. .l .. -e ·. _'-l .~ •• • •• ~.·: • : ';~ ·-:; •• • : "-:::_:..-: ~;~1 ~.~ ... '1-
- " : ... .:-0 . . - --· ,.-- ~- '
Appeals- · .f'or review and the issue went ··unaddressed. The``for:·e '
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Relator i.s aware ~f no other adequat& means .to compel Clear
Constitutional Due-Process of taw Ministerial Duties performed
~
by the Clerk of the Court .of Criminal ~ppeats to ~ItE ~ND SET
FOR REVIEW a ~ppticatton for Habeas Corpus Relief Under New
Le:ga.i"~ Basis previ.ou~ly Unavailable for c;ons·ldi;?'ra·tion~:Jn a -:.Ptl.or·
Application for Relief.
Relator is procee~ing Pro-Se in this cause and asks the
Suprema Court of Texas to hold him to a less Stringent standard
then formal P.lead_tngs made by an 1\tt.o,rney. (See -- Haines v.
Hernar, 404 u.s. 319, 326 [1972])
"In determining. the specific nature of the Extraordinary
relief ought, this court witt not be limited by the denomlnat\on
' • I ' •
of Petitioner's pleadings, but will ~ook to the essence of the
pleading, including the prayers,· as
' .
well as the record
. before
• !"' ' .
Us ... (See- \iade v. Ha/s·, 689 S.W.2d 893, 897 [1985 Tex.Cr.App.)) 1\
v.
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IS.SUES .PRESENTED
The· Clatk of th•'dou~t o~ drtmlnal ~ppeals has ~bused hl~
Discr~tion ``d MlQlstetlal Duty by refusin~ t~l4tors Du``Ptoce~s
·-
Appl icaliion of Laif ·r:equi.r:eing l{lin · ur 'Flf~. ~No =~F2.! ·_Fq_g_ ·
HEVrnEW.
'
a
.,.,;11/'fo-. ~
~udces~tve Appltcatlon for Habeas dorpus Relief whW~h
.~·· w
has "~mel/the Requi.rements ~at out in Criminai Codes and Pro.cedures
~·.
~rtlcle § 11.07 Sec. 4a(l)&(2).
-``EMENT.OF. FACTS
·~ ...... ., ,. _1:,., On 3/18/2015. Relator was cited for Abuse of Writ.
.. .···· .......
'~;~nstruc~ions to the Clerk were not to accept another Application
•.. ,. . .
· for Habeas Cor: pus Relief· unless Relator "·•· is able 'to show
'' ' ' ..
in •t ~ : • ' .....
such an application that any claims presented have.not been
rasied pr:eviously and that they could not have .been presented
. t·. ) ' 'I I ~ : 1
in a p~•vious application for a Writ of Habeas Corpus."
2. On Sap·. 1, 2013 Legislation enacted an Amendment to Criminal
·.\'
Codes and . Procedures to . add. Artlcle 11.073 that pertained to
,,
certain ~scientif1e Evidence". j
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3. On Nov~ 26, · 2014 the Court of Cci~lnal Appeals found that
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Article 11.073 satisfi~d ihe requirement for a Successive review
\ ``~ .. \
for relief under: Art~ 11.07 Sec. 4a(l): -A "NEW LEGAL BASIS"
previously unavailable for consideration in a pri~r A~plicati``.
' . '
(See Ex Parte Neal Hampton Robbins, Wr-73,484-02)
4. · Article· 11.073 i~ a· NEW LEGAL BASIS previously una~ailable·
``, to relator for consideration in a prior a~plication~and t~e~efore
a STATUTORY ENTITLEMENT EXISTS. for conside~ation under.~h~
requirements set out bt L~glslation to·provide fo~ PAIR TRiALS.
VI.
s. Before Excerciaing Relators Newly Granted Due-Process Right
to review under the New Legal Basis he DILIGENTLY SOUGHT to
find whether the State Prosecutor knew the Expert "Scientific
Evidence" testimont offerred at trial was false and unreliable
by requesting the Scientific Documents/Reports used for Pre-Trial
Preparation.
6. Texas 83rd Legislative House Bill 1847, Senate Bill 825,
and Senate Bill 1611 enactment all revolve around the Trans-
parency of the Prosecutors· Office to Disclose information to
: ' ' '
met the Publics demand to prevent wrongful! convictions and
provide a Constitutional Due-Process Right to a FAIR TRIALo
1. Despite the Publics Demands the Webb Co. District Attorney
refuse9 to release scientific Documents/Reports used by the
Trial Prosecutor to prepare for Trial. (Relator Presents Due
Diligence to provide positive Proof of his claims but is being
Obstructed to his legal right to access the proof for the claims.)
s. Relator Applied for Habeas Corpus Relief on ot about Jan.
7, 2015 citing the "NEW LEGAL BASIS" of Art. 11.073 and a Miscar-
riage of Justice.
~·. The Trial Court did not act as a fact finder applying the
"NEW LEGAL BASIS" standard of review to develop the records
for the Court of Criminal Appeals Clerk or Court to review and
make a informed decision on the Scientific Trial Testimony that
has shown to ba intentionally falsified and relied upon bf the
State Prosecutor to Obtain a conviction.
VII.
10. On Mar. 3, 2015 The Clerk of the Court of Criminal Appeals,
without a developed record to base an informed decision, found
that Relator did not met the Standard for review set out in
the Appeals Court Order and ignored th·e legal 'St-at~'_t`` of Article 0
11.07 Sec. 4a(l)&(2).
11. The NEW LEGAL statute'of Article 11.073 meta the Requirements
set out in Article 11.07 Sec. 4a.and the Courts Order. Relator
is ENTITf-4ED BY stat_ut:e to Due-Process of Law requiring the Clerks. 0
Ministerial Duty to File and Set the Ap~lication for Review
for an infotmed decision based on a Oeveloped Record.
; '· ARGUEMBNT
On 3/18/2015 The Clerk of the Court of Criminal Appeals
\.
found Relator did not met the standard for review under the
Order made by the Court of Crim. App. t0..rf:, the presented Application
Under Article 11.073, see ccAe29,892-2l.
The Ct. of Crim. App. set out in a previous Order that
the Clerk of the court was not to accept another Application
from Relator unless:
Relator u • • • is able to show in such an application
that any claims presented hove not been raised pr~viously
and that they could not have been presented in a previous
application for a Writ of Habeas Corpus."
The Court of Crim. App. has established in Ex Parte Neal
a. Robbins, Wr-73-848-02, that "Article 11.073" is a 0
NEW LEGAL
BASIS 0 previously unavailable for consideration in a prior
application Under Article 11.07 Sec •. 4a.
1.
Relator is citing article 11.073 as a "NEW LEGAL BASIS"
for relief as the Article was previously unavailable for consid-
ation in a prior application for celief. The 11.073 Statuit.e·
established a new standard of review that was to ensure a Fair
Trial was provided to an Applicant in instances w~ere the State
relied upon scientific testimony that has been discredited.
Relator has therefore met the standards for relief under
the legal .Statue of Article ll.07.Sec. ·4a(l) to have the issues
....
addressed, but ·the · 'l'rial Court failed to develop~>~ the record
to make an informed decision. ``i
Also, Relator is citing for the FIRST TIME that a "Miscarriage
of Justice" occurred by tne Trial Prosecutor's knowingly and
intentionally offerred false and unreliable Scientific ~estimony
which denied Relator's Constitutional Due-Process Right to a
FAIR TRIAL by a State Official. Absent this Constitutional
Due-Process violation NO RATIONAL JUROR WOULD HAVE FOUND RELATOR
GUILTY BEOND A REASONABLE DOUBT.
Relator has therefore met the Standards for relief under
the legal Statutte of Article 11.07 Sec .. 4a( 2) to have the issue
addressed, but the Trial Court failed to develop the record
to make an informed decision.
DISTRICT ATTORNEY WITHHOLDING EVIDENCE
Relator has attempted to address the Miscarriage of Justice
claim by requesting the scientific documents/reports used to
prepare for and introduced at - Trial by th Prosecutor.
2.
Relator is legally entitled to the information that was
testified to at trial and through New Laws passed to prevent
a wrongful! conviction the Public now demands Transparency of
the District Attorneys Office to stop withholding evidence that
nas resulted in wrongful! c.onvrtf6·ri.S> of innocent Citizens.
The District Attorney's withholdi~g of Documents/Reports
raises the presumption of correctness of Relators claims. The
Prosecutors office does not negate the. claims by providing the
Scientific Documents/Reports used by the Trial Prosecutor which
R~lator is Legally entitled to due to the apparent matterial
value to the claims made.
Relator has SHOWN A DUE DILIGENCE to investigate and ?roperly
present . the claim of a "Miscarriage of Justice" as required
under Article 11.07 Sec. 4a, but the Webb co. District Attorneys
continues to withhold Scientific inform~tion and refuses to
abide by the Basic Priciples of the u.s. Constitution to provide
for Due-Process of Law. Further the Trial Court failed to
DEVELOP the Records to address the issue for the higher Courts
to MAKE AN INFORMED DECISION.
These Actions of State Officia!s undermine the Publics
Trust in the Governments ability to provide FAIR TRIALS to it's
Citizenrt•
Such Constitutional Violations can not be set aside as
merely part of Justice and go unaddi:"~$ses.~, ,, Justice is to ;serrve-~:~····
as a Truth Finding Function on behalf of. the Citizenry.
3.
CONCLUSION
Relat6r has shown a "New Legislative granted due process
right" of Art. 11.073 established a "NEW LEGAL BASIS" standard
of Review· which previously was unavailable to Relator• This
satisfies the requirements f``~,;a successive Application and presents
a Ministerial Duty upon the Clerk of the Court of Criminal appeals
-
to file and set the issues for review basad upon a·daveloped
and infqrmed recor~.
~ FIRST TIME CLAIM of a State Prosecutor violating Relator's
Constitutional Due Process Right to a Pair Trial has never been
addressed on the merits. This claim will show that absent the
Constitutional violation to a FAIR TRIAL NO .RATIONAL JUROR WOULD
HAVE FOUND RELATOR GUILTY BEYOND A REASONABLE DOUBT: Thus Relator
has satisfied the ~equirements for· a successive Application
and· Presents a Ministerial Duty ·upon ·the Clerk of the Courtf.',.Qg
Criminal Appeals to file and set the issues for review based
upon a developed and informed record.
Relator has Diligently sought to investigate and provide
the Scientific Information used ::·by the !rial Prosecutor but
has been denied access to the information even though disclosure
basic priciples of taw and further demanded by the Public through
New Sb:t.t~te: to provide Pair Trial to the Citizens.
The entitlement to Mandamus re~i~w is "Indisputable" Will
v. United States, 389 u.s. 90, 96 (1967) and "Abundantly Clear"
Mei~snar. v. Fuchs, 290 s.w.2d 941, 944 (Tex.Civ.App. - Galveston
1965). Relator has presented. an "Issue to cequic~ the execution
4.
of matters whose merit is beyond dispute •• n (Wartham v. Walk~r,
{133 Tex. 255], 128 s.w.2a at 1151 (1939]).
PRAYER
Wherefore Relator Prays that the Cle~k : 6f the ~6urt 6f
Criminal Appeals . be instructed tb FILE ANb SET PbR REV~EW the
Application for Rabeas Corpus Relief recieved on 3/6/2615 Court
of Crimihal Appeals Cause No. 29,892-21,~ Also find that a
informed decision c~n ·not b~ made without a dev~lb~ed·re~o``
from the Trial·Court ~ddr•ssirig: 1) The Disdredite~ ~cientifid
Testimony Under the 'New legal Basis of Article 11.073 which
was created to provid~ for FAIR TRIALS on acc~rate Scientific
Testimony. and. 21 The Trial Prosectitors Pre~Trial Knowledge
of the inaccurate Scientific Evidence: B6tti which affect Consti-
tutional Civil Rights·to a FAIR TRIAL by a Stat• Official~
Respectfully
~Smithwick,
TOCJ#622814 McCtinnell
Jr.
3001 s. Emily Dr.
Beeville, Tx.``~OCl
DECLARATION
I, Roy L. Smithwick, Jr. do Here-By declare under the
penality of perjury that every state~ent in the ~oregoing Qocumerit
are True and Correct. Also that every conclusion made from
from the information av~ilab1e to ~e is also tr~e ·and Correct
to the beat of my knowledge.
s.
AFFIDAVIT OP INDEGENCE
Y, Roy L. Smithwick Jr., Do Here-By Declare under the
Penality of Perjury that in the Trial Cause of the ~oregoing
issue in the 49th District Court No. 1992CRA00041-Dl and on
all appeals I have b•en found indegent and allow•d to pro``ed
without cost:.$. !:' I am -~·p~;e:".iantally incarcerated and do not ·obt~in"
wages-for my labor for which I am consider~ a Ward of the State of
Texas. I therefore. ask to. be al.lowed to proceed without costs in
/
the foregoing issue to 6ompel Performance of Ministerial Duties of
a State Official.
Reap ctfu1ll1S~-
``"~/. . . ~/l~'
Ro • Smithwick Jr.
TDCJ#622814 McConnell
3001 s. Emily Dr.
Beeville Tx. 78102