in Re Donald Aekins, Relator ( 2015 )

October 1 5, 201 5
Vivian Long, Court Clerk
Seventh Court of Appeals
~ ~ l tE5 IT\\ ~
23 201
RE : ReP 1 Y to State ' s Re s p on s e o f Man dam us petit · 0 n OCT
C0 A Ca s e No : 0 7 -1 5 - 0 0 1 3 9 - CR a n d 0 7 -1 5 - 0 0 2 9 3 -s``NTH COURT OF f:KEALS
T r . Ct . Ca s e No : D-1 - DC-1 2 - 9 0 4 0 5 6 VIVIAN LONG, Ct.
Ms. Long and staff,
Enclosed is my reply to the State's response of my mandamus
petition, and its supporting documents. Please file these docum-
ents, bring it to the attention of the Court, and set this cause
of action before the presiding judge(s) for ruling.
Upon filing, plsase provide me a date-stamped copy. Thank
You for your assistance and prompt response to this important matter.
Respgctfully,
``
Donald Aekins, pro se #1820499
Connally Unit
899 FM 632
Kenedy, Texas 7 811 9
cc: file, Travis Cnty Dist Atty
Enclosures
*Special Note - the only copy of Exhibit 1 was sent with the
7th C.O.A. package.
COA CASE NO. 07-15-00293-CR
IE ~ [L LE rRl
IN THE
COURT OF APPEALS
tr OCT 23 2015 ~
SEVENTH COURT Of APPEt'ILS
VIVIAN LONG, CLERK
SEVENTH DISTRICT OF TEXAS
AMARILLO, TEXAS
IN RE §
§
DONALD AEKINS § RELATOR
REPLY TO STATE'S RESPONSE
OF RELATOR'S PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Donald Aekins, relator pro se and files his reply
to the State's response to his petition for writ of mandamus, in
accordance with Tex.R.App.P. 52.5.
The State submitted their response on August 17, 2015.
Aekins was never provided a copy of their response until October
15, 2015; courtesy of the Seventh Court of Appeals.
1. On July 22, 2015, Aekins filed a petition for writ of man-
damus seeking relief against Judge Brenda Kennedy of the 403rd
District Court for, failure to rule or set for hearing Aekins'
pending motions:
a) Motion to Supplement Appellant Record
b) Motion for Free Appellate Record; and
c) Motion for Appointment of Counsel on Appeal.
2. The Court requested the State include whether the Court has
jurisdiction to address Aekins' mandamus petition. Within this
argument, Aekins contends that:
a) due to the trial court's failure to rule on these motions;
b) the dependency of his DNA appeal on these motions; and
c) the fact that theA Texas Supreme Court has already assign-
ed the Court to th~DN~ppeal, Aekins accordingly filed this
mandamus petition ~ith the Court.
Page 1 of 3
3. The State alleges that, Aekins has not filed with the petition
a certificate or sworn documents material to his claim for relief.
Whereinfact, Aekins will show that a "Certificate of Service" in
accords with Tex.R.App.P. 9.5(d),(e), an "Inmate Unsworn Declar-
ation" in accords with Tex.Civil Practices & Remedies Code 132.001
- 132.003, and a cover-letter requesting a ruling were filed with
each motion. See (mandamus appendices - 1 (b), 2(b), 3(b)); (Clerk 1 s
and Appellate Record). Thus, Aekins did fulfill the requirements
of Tex.R.App.P. 52.7(a)(1) which state in part; "Relator must file
with the petition a certified or sworn copy of every document . . . ".
Aekins certificates accompanying his motions and petition are much
the same as the "Certificates of Service'' the State used in its
Response; which also is without a "Sworn Declaration".
4. The State also claims that, Aekins failed to show that he made
a demand for performance and that the trial court refused such a
request. Aekins has met these prerequisites of entitlement.
See (mandamus petition, pg 4-6); see In re Aekins (COA No. 03-15-
00004-CV, Opinion pg 3); see also (Exhibit 1 - letter requesting
ruling); In Aranda v Dist Clerk the Court held, "Failure to rule
is refusal.". Id 207 S.W.3d 785 (TxCrApp).
*Special Note - Aekins can not be faulted for the Travis County
District Clerk's failure to provide him with a date-stamped copy
of the filed documents; as requested in each action's cover-letter.
SUBMITTED and SUBSCRIBED on this the u;1h day of October 2015.
Respectfully submitted
C@~.~
Page 2 of 3
DECLARATION
"I, Donald Aekins, TDCJ #1820499, presently incarcerated
in the Texas Department of Criminal Justice Correctional Inst-
itutions Division at the Connally Unit in Karnes County, Texas,
declare under penalty of perjury under Chapter 132 of the Texas
Civil Practices and Remedies Code and 28 U.S.C. § 1746, that
the facts stated in this Reply to State's Response are true
and correct and that I placed this document in the prison
mailbox on this date."
11 Executed on this the ~day of 2 01 5. II
C£l~o.``1:.tv
Donald Aekins -# 1820499
CERTIFICATE OF SERVICE
I certify that on this the \..~day of e-~t.RJ\... 2 01 5 , I
served the following parties with a true and correct copy of this
Reply to state's Response by U.S. Mail through the prison mailbox
in a postage paid package to the addresses written below:
Seventh Court of Appeals
P.O. Box 9540
Amarillo, Texas 79105-9540
Attn: Vivian Long, Court Clerk
Travis County District Attorney
P.O. Box 1748
Austin, Texas 78767
Attn: Rosa Theofanis, Asst. Dist. Atty.
Cf0enoDcl ~m>v
Donald Aekins ~0499
\
Page 3 of 3
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