Smiley, Rodney Elnesto

WR-31,454-04
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/29/2015 2:07:05 PM
Accepted 6/29/2015 5:30:36 PM
Nos. WR-31,454-03 & WR-31,454-04
ABEL ACOSTA
CLERK
______________________________
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
______________________________
EX PARTE RODNEY ELNESTO SMILEY, Applicant.
______________________________
On Application for a Writ of Habeas Corpus
Cause No. C-213-010293-1011284-B
In the 213th District Court from Tarrant County
Cause No. W94-02594-U(A)
In the 291st District Court from Dallas County
______________________________
BRIEF FOR THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE
______________________________
KEN PAXTON *JOSEPH P. CORCORAN
Attorney General of Texas Assistant Attorney General
Supervising Attorney
CHARLES E. ROY for Non-Capital Appeals
First Assistant Attorney General Criminal Appeals Division
State Bar No. 00793549
ADRIENNE McFARLAND Joseph.Corcoran@TexasAttorneyGeneral.gov
Deputy Attorney General
for Criminal Justice *Lead Appellate Counsel
P. O. Box 12548, Capitol Station
EDWARD L. MARSHALL Austin, Texas 78711
Chief, Criminal Appeals Division Telephone: (512) 936-1400
Facsimile: (512) 936-1280
_____________________________
ATTORNEYS FOR THE
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
June 29, 2015
IDENTITY OF PARTIES AND COUNSEL
To assist this Honorable Court in determining disqualification and
recusal, the Texas Department of Criminal Justice certifies the following
is a complete list of the parties and their attorneys in accordance with
Texas Rule of Appellate Procedure 38.1(a).
1. Applicant
RODNEY ELNESTO SMILEY
TDCJ-CID No. 693698
2. Counsel for Applicant
KENNETH NASH
State Counsel for Offenders
P.O. Box 4005
Hunstville, Texas 77342
3. Counsel for the State
ANDREA JACOBS
Assistant Criminal District Attorney
401 West Belknap
Fort Worth, Texas 76196-0201
4. Counsel for the Texas Department of Criminal Justice
JOSEPH P. CORCORAN
Assistant Attorney General
Texas Bar Number 00793549
P. O. Box 12548, Capitol Station
Austin, Texas 78711
5. Trial Court Judge
JUDGE LOUIS STURNS
(State habeas proceeding)
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ............................................. ii
TABLE OF CONTENTS .........................................................................iii
INDEX OF AUTHORITIES ..................................................................... v
STATEMENT OF THE CASE ................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ................................. 5
STATEMENT OF THE ISSUES .............................................................. 5
SUMMARY OF THE ARGUMENTS ....................................................... 7
ARGUMENT .......................................................................................... 11
I. Since Applicant Was Thrice Reviewed and Denied Release to
DMS for His DMS-Eligible Offense, There Is Nothing to
Remediate; the Issue is Moot ......................................................... 11
II. In the Alternative, Because the Initial DMS Vote Was Timely,
Applicant’s Rights Could Not Have Been Violated ....................... 13
A. Both TDCJ and the Board have independent legal
authority to interpret Texas statutes related to
their core, legislatively-created functions,
including the interpretation of laws to determine
how to calculate sentences and to institute parole
review procedures ................................................................. 13
iii
TABLE OF CONTENTS, Continued
B. Applicant’s assumption that the initial DMS vote
was untimely, exposes an interpretative tension
within the statutory provisions creating the DMS
procedure, and creates a cascade of potential
absurdities. ............................................................................ 15
C. Applicant’s legal rights could not have been
violated with respect to his DMS sentence, because
the Legislature limited the force and effect of good-
time to only his conviction for theft—at least while
he was serving his controlling, concurrent
sentence for theft................................................................... 28
III. Because Applicant’s Theft Offense Ceased to Be the
Controlling Sentence As of the Moment He Became
Presumptively Eligible for MS Release Thereto, Applicant’s
Rights Could Not Have Been Violated .......................................... 35
PRAYER FOR RELIEF .......................................................................... 40
CERTIFICATE OF SERVICE ................................................................ 42
CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF
APPELLATE PROCEDURE 9.4 ............................................................ 43
iv
INDEX OF AUTHORITIES
Cases
Ex parte Bohannan, 350 S.W.3d 116 (Tex. Crim. App. 2011) ................ 12
Ex parte Canada, 754 S.W.2d 660 (Tex. Crim. App. 1988) .................... 24
Ex parte Cowan, 171 S.W.3d 890 (Tex. Crim. App. 2005)...................... 31
Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008) ............. 16, 34
Ex parte Geiken, 28 S.W.3d 553 (Tex. Crim. App. 2000) ......................... 1
Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003) ................... 19, 25
Ex parte Keller, 173 S.W.3d 492 (Tex. Crim. App. 2005)................. 14, 15
Ex parte Mabry, 137 S.W.3d 58 (Tex. Crim. App. 2004) .................... 2, 36
Ex parte Retzlaff, 135 S.W.3d 45 (Tex. Crim. App. 2004) .............. passim
Ex parte Ruthart, 980 S.W.2d 469 (Tex. Crim. App. 1998)........ 17, 28, 33
Ex parte Schroeter, 958 S.W.2d 811 (Tex. Crim. App. 1997) ................. 18
Ex parte Smiley, No. WR-31,454-03 (Tex. Crim. App. Nov. 26, 2014) . 4, 6
Ex parte Thompson, 173 S.W.3d 458 (Tex. Crim. App. 2005) .................. 1
Falkner v. Southwestern Sav. and Loan Ass’n of Houston, 320 S.W.2d
164 (Tex. Civ. App.—Austin 1958)....................................................... 15
v
Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640 (Tex. App.—Austin
2004) ..................................................................................................... 14
Morrissey v. Brewer, 408 U.S. 471 (1972) ........................................ 20, 21
Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971
S.W.2d 439 (Tex. 1998)........................................................................... 6
Public Utility Com’n of Texas v. City Public Service Bd. of San Antonio,
53 S.W.3d 310 (Tex. 2001) .................................................................... 13
State v. Public Utility Com’n of Texas, 883 S.W.2d 190 (Tex. 1994) ..... 15
Texas Advocates Supporting Kids with Disabilities v. Texas Educ.
Agency, 112 S.W.3d 234 (Tex. App.—Austin 2003) ............................. 13
Warren v. State, 652 S.W.2d 779 (Tex. Crim. App. 1983) ........................ 6
Statutes
H.B. 1433 Comm. Report (Amended), 74th Leg. (April 11, 1995) .......... 19
Tex. Code Crim. Proc. art. 42.18 § 7 ....................................................... 14
Tex. Code Crim. Proc. art. 42.18 § 8(c) ..................................................... 1
Tex. Gov’t Code § 494.001 ....................................................................... 14
Tex. Gov’t Code § 498.001(5) ................................................................... 30
Tex. Gov’t Code § 498.003(a) ................................................................... 30
vi
Tex. Gov’t Code § 508.001(5) ............................................................. 16, 17
Tex. Gov’t Code § 508.143(b) ................................................................... 17
Tex. Gov’t Code § 508.147(a) ............................................................. 16, 31
Tex. Gov’t Code § 508.147(b) ....................................................... 17, 31, 37
Tex. Gov’t Code § 508.149 ....................................................................... 26
Tex. Gov’t Code § 508.149(b) ..................................................................... 2
Tex. Gov’t Code § 508.185 ....................................................................... 22
Tex. Gov’t Code § 508.186 ....................................................................... 22
Tex. Gov’t Code § 508.188 ....................................................................... 22
Tex. Gov’t Code § 508.190 ....................................................................... 22
Tex. Gov’t Code § 508.283(c) ................................................................... 25
Tex. Gov’t Code §§ 508.181–.192............................................................. 37
vii
STATEMENT OF THE CASE
In 1994, Applicant was convicted of theft in Dallas County and
sentenced to twenty-five years’ imprisonment (the “theft conviction”). See
Order at 1, Ex parte Smiley, Nos. WR-31,454-03 & WR-31,454-04 (Tex.
Crim. App. Apr. 29, 2015) (per curiam) (Order). In 2006, while he was on
parole for his theft conviction, Applicant was convicted of injury to a child
in Tarrant County, and sentenced to ten years’ imprisonment to be served
concurrently with the sentence for his theft conviction (the “injury to a
child” conviction). Id. Applicant’s theft conviction is subject to the pre-
1996 mandatory supervision (MS) statute, while his injury to a child
conviction is governed by the “discretionary” mandatory supervision
(DMS) statute in effect on his offense date. Id.; see Tex. Code Crim. Proc.
art. 42.18 § 8(c) (West 1994)1 (demonstrating that Applicant’s theft
conviction is governed by the pre-DMS statute); see also Tex. Gov’t Code
1 In 1997, the Texas Legislature repealed Article 42.18, and recodified its
provisions into Section 508.149(b) of the Texas Government Code. See Ex parte
Geiken, 28 S.W.3d 553, 555 (Tex. Crim. App. 2000); see also Acts 1997, 75th Leg., ch.
165, § 12.22, eff. Sept. 1, 1997. However, Applicant’s theft conviction is governed by
former Article 42.18. See Ex parte Thompson, 173 S.W.3d 458, 459 (Tex. Crim. App.
2005) (the statute in effect when the holding offense is committed determines an
inmate’s eligibility for release to MS for that offense).
1
§ 508.149(b) (West 2006) (demonstrating that Applicant’s injury to a child
conviction is governed by the DMS statute).
As relevant here, the Texas Department of Criminal Justice (TDCJ)
calculated the DMS-notice date for Applicant’s injury to a child conviction
based upon the presumptive release date for Applicant’s then controlling
eligible offense, 2 which at that time was Applicant’s twenty-five year
theft conviction. Order at 1; 1SCHR at 10.3 Hence, Applicant was
provided DMS notice for his injury to a child conviction on January 29,
2013—premised upon the date Applicant would be presumptively eligible
for release to MS for his theft conviction, on May 12, 2013. 1SCHR at 10.
The Board of Pardons and Paroles (Board) voted to deny Applicant DMS
2 A “controlling” offense in this context is defined as follows: “When an inmate
has multiple convictions, he will have one conviction which governs his release date,
either because it is the most recent, contains the longest sentence, or has the least
amount of time credits. It is the conviction that will keep the prisoner in custody for
the greatest amount of time.” Ex parte Mabry, 137 S.W.3d 58, 63 (Tex. Crim. App.
2004) (Keasler, J., concurring).
3 “1SHCR” refers to the “1st Supplemental Clerk’s Record” prepared by the
clerk of the 213th District Court for this habeas proceeding; it is also attached as
Appendix 1 to this brief. “2SHCR” refers to the “2nd Supplemental Clerk’s Record”
prepared by the clerk of the 213th District Court for this habeas proceeding; it is also
attached as Appendix 2 to this brief. “3SHCR” refers to the “3rd Supplemental Clerk’s
Record” prepared by the clerk of the 213th District Court for this habeas proceeding;
it is also attached as Appendix 3 to this brief. “SHCR” refers to the “Clerk’s Record”
prepared by the clerk of the 213th District Court for this habeas proceeding; it is also
attached as Appendix 4 to this brief.
2
release for his injury to a child conviction on April 10, 2013 (the “initial
DMS vote”). Id. The Board then reviewed and denied Applicant release
to DMS on his injury to a child conviction two additional times, with a
fourth DMS review date scheduled for December of 2015. Id.
Applicant challenged the timing of the initial DMS vote in this
habeas application, filed pursuant to Article 11.07 of the Code of Criminal
Procedure. SHCR at 2–24. To this end, he contends, in part, that he was
entitled to a DMS vote for his injury to a child conviction sometime in
2010, when the aggregate good time and calendar time for that sentence
equaled its ten-year term. SHCR at 8. As a result, he suggests that his
due process rights under both the state and federal constitutions were
violated because the Board waited more than two years to review and
deny him for release to DMS for his injury to a child conviction. SHCR
21–23.
The state habeas trial court entered proposed findings of fact and
conclusions of law recommending that Applicant’s application be denied
as moot because the Board had already voted three times to deny him
DMS. SHCR at 60–65. After receiving the trial court’s recommendation,
3
the Court placed the application in abeyance and ordered the trial court
to obtain affidavits from TDCJ to resolve several factual issues: to enter
additional findings of fact and conclusions of law as to when Applicant
was eligible for release to DMS for his injury to a child conviction, and to
determine when the Board voted to deny release. Order at 1–2, Ex parte
Smiley, No. WR-31,454-03 (Tex. Crim. App. Nov. 26, 2014) (per curiam).
Upon remand, the trial court obtained an affidavit from TDCJ, and
again entered proposed findings of fact and conclusions of law
recommending that Applicant’s application be denied. 3SHCR at 2–9.
Upon receipt of those recommendations, the Court filed and set this
application for submission to resolve the following two issues:
(1) to determine the remedy, if any, for the failure to vote
on Applicant’s original discretionary mandatory release
date in a timely fashion; and
(2) to determine the legality of TDCJ’s policy of not
“releasing” a prisoner to mandatory supervision on one
concurrent sentence until the prisoner is “eligible for
release” on all concurrent sentences.
Order at 2. The Court also invited the Office of General Counsel of TDCJ
to submit a brief to assist the Court in resolving the two issues. Id.
4
STATEMENT REGARDING ORAL ARGUMENT
TDCJ respectfully submits that the primary legal questions raised
in this appeal are adequately presented in the briefs and record, and that
the decisional process on this point would not be significantly aided by
oral argument.
STATEMENT OF THE ISSUES
Applicant contends that the decision to link his initial DMS vote—
which occurred in 2013—to the date he was presumptively eligible for
MS release for his then controlling theft conviction, violates his due
process protections under both the federal and state constitutions.
Relatedly, Applicant now suggests that TDCJ’s alleged failure to
physically release him to mandatory supervision for his theft conviction
in 2013, despite the fact that he had not qualified for physical release
under the DMS statute for his injury to a child conviction, was
unconstitutional too.4 And while Applicant suggests the existence of a
4 This claim, i.e., that Applicant should have been physically released to MS
for his theft conviction in 2013, was first raised in his brief filed in this Court on June
25, 2015. See Applicant’s Brief at 15–26, Ex parte Smiley, Nos. WR-31,454-03 & WR-
31,454-04 (Tex. Crim. App. June. 25, 2015). In other words, it appears that Applicant
5
due process violation in his application, the two issues raised in the Order
appear to frame the issue more broadly, to include the “legality” of
Applicant’s sentence calculation, generally. See Order at 2.
Important too, TDCJ notes with some concern that the second issue
identified in the Order might be construed by Applicant as extending to
hypothetical facts not presently before the Court. In other words, to the
extent that the second issue invites consideration of the manner and
timing in which TDCJ releases prisoners to mandatory supervision in all
cases—and across the full spectrum of possible sentence combinations—
such an opinion would be advisory and improper.5 For this reason, TDCJ
has limited its legal analysis to the calculation of Applicant’s particular
sentence combination. This is not to say that the parties should not refer
did not advance this claim as part of his original habeas application. See SHCR at 7–
10, 21–23. In an abundance of caution, however, and because this new claim might
fairly be construed as being part of the second issue designated by the Court in its
Order, TDCJ will address it below.
5 This Court “do[es] not write advisory opinions.” Warren v. State, 652 S.W.2d
779 (Tex. Crim. App. 1983). And as the Texas Supreme Court has explained in greater
detail: “The courts of this state are not empowered to give advisory opinions. This
prohibition extends to cases that are not yet ripe. A case is not ripe when its resolution
depends on contingent or hypothetical facts, or upon events that have not yet come to
pass.” Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439,
443 (Tex. 1998) (internal citations omitted).
6
to hypothetical sentence combinations to explore the full meaning of the
relevant statutory text, but only that Applicant should not be permitted
to use his circumstances to dictate TDCJ policies for unrelated inmates.
SUMMARY OF THE ARGUMENT
In his application Applicant faults the Board for conducting the
initial DMS-vote in 2013, but he fails to describe how he thinks a
favorable 2010 DMS-vote would have affected his continuing physical
incarceration in the Correctional Institutions Division of TDCJ (TDCJ-
CID). 6 Presumably, Applicant does not contend that his hypothetical
2010-“release” to DMS for his then non-controlling injury to a child
offense would have required TDCJ-CID to physically release him for his
then controlling theft offense. In other words, surely Applicant does not
mean to suggest that his physical custody in TDCJ-CID is controlled by
his shortest concurrent sentence. Such an approach would do so much
violence to the statutory framework governing these questions that there
6 Applicant’s argument is necessarily premised on the possibility that he might
have received a favorable DMS vote in 2010. Absent the possibility of a favorable vote,
there is no liberty interest to protect.
7
is little reason to address it further. 7 Hence, TDCJ will assume Applicant
contends that—upon a (hypothetical) favorable DMS vote in 2010—he
would have remained in TDCJ-CID’s physical custody until he was
physically released for the theft offense.
The first and second questions posed by the Court are intertwined.
The first assumes Applicant’s minor premise—that the Board’s initial
DMS vote was untimely—then asks whether a remedy exists given that
Applicant was subsequently reviewed and denied release to DMS three
times. Since Applicant has already received a DMS vote, there is nothing
to remediate; the question appears to be moot. In the alternative, the
answer to the second question if resolved in favor of TDCJ and the Board,
would also resolve the first, and establish that the initial DMS vote was
not untimely. And if the Court agrees that neither TDCJ nor the Board
violated the relevant statutory text when determining the timing for the
initial DMS vote, there could be no due process violation—whatever due
7 In such a system, an inmate who received a life sentence in 1990, and who
was then paroled in 2005, could intentionally commit a minor DMS-eligible offense,
and effectively nullify TDCJ-CID’s authority to maintain legal custody for the life
sentence at the moment the inmate received a favorable DMS-vote for the new
concurrent sentence.
8
process protections attach to Applicant’s initial DMS vote, they
necessarily flow from the text of the controlling statutes.
Again, Applicant necessarily assumes that he could have obtained
the benefit of DMS-“release” for his non-controlling injury to a child
sentence in 2010, while continuing to remain in TDCJ-CID’s physical
custody for his theft offense. TDCJ will first analyze the legal and
statutory implications of this assumption and demonstrate that it creates
a serious conflict with both the relevant statutory framework and the
opinions of this Court. Applicant’s assumption creates a cascade of
interpretive absurdities that are heightened here because—as is often
the case when analyzing the statutes controlling MS, DMS, and parole—
the provisions rarely make any reference to the dictates of the others.
Moreover, Applicant’s contention that he should have been
physically released to MS for his theft conviction in 2013, is also
erroneous because it assumes that his controlling concurrent sentence is
static. It ignores the statutory text demonstrating that Applicant’s injury
to a child offense became the controlling sentence when he became
presumptively eligible to MS for his theft conviction. As TDCJ will
9
establish below, where an inmate has multiple concurrent, but dissimilar
sentences, only one can be controlling at any given time, and the
controlling sentence may change during that inmate’s incarceration. 8
In complying with their constitutional and statutory authority to
interpret the law on these questions, TDCJ and the Board attempted to
harmonize the relevant provisions as much as possible, so as to give full
effect to them all. To this end, TDCJ advances a statutory interpretation
that it believes resolves the absurdities created by Applicant’s suggested
approach, and which supports both its argument that Applicant’s initial
DMS vote was timely, and that Applicant is not entitled to MS release
for his theft conviction until he receives a favorable DMS vote on his
injury to a child conviction. And compellingly, TDCJ’s suggested
approach already finds support in this Court’s jurisprudence.
Finally, TDCJ unreservedly acknowledges the difficulty in
performing textual analysis on this particular statutory framework. And
while TDCJ has attempted to harmonize the complex statutory
8 When referring to “controlling sentence” in this context, TDCJ means the
longest, remaining concurrent sentence for calculating MS or DMS eligibility—
measured at a particular point in time.
10
commands regarding Applicant’s particular sentence combination—in
good faith—TDCJ looks to the Court for guidance moving forward.
ARGUMENT
I. Since Applicant Was Thrice Reviewed and Denied Release to DMS
for His DMS-Eligible Offense, There Is Nothing to Remediate; the
Issue is Moot.
This Court previously held with reference to the DMS statute at
issue here that “an eligible inmate has a vested, statutory entitlement to
release on mandatory supervision, but it is a defeasible interest—one
that may be defeated, but only if the parole panel makes these findings
in its review.” Ex parte Retzlaff, 135 S.W.3d 45, 48–49 (Tex. Crim. App.
2004). But the Court went further when it held that the remedy for the
failure to comply with the procedural obligations created by the DMS
statute is to conduct a procedurally proper DMS hearing. Id. at 51
(“Because the mandatory supervision statute requires release unless a
parole panel makes specific findings, we find that [Applicant’s] . . .
continued incarceration is illegal and unconstitutional unless, within
sixty days, a parole panel has given him timely notice of a review to be
held before the fifty-ninth day and has provided him at least thirty days
11
to submit whatever explanatory material he wishes the panel to
consider.”).
This has already happened. 1SHCR at 10. Because Applicant has
thrice been reviewed and denied release to DMS, he has already received
his remedy for the purported delay in conducting the initial DMS vote,
and the issue before the Court appears to be moot. TDCJ acknowledges
that Applicant’s claim might nevertheless be justiciable under the
“capable of repetition, yet evading review” doctrine. E.g., Ex parte
Bohannan, 350 S.W.3d 116, 119–20 (Tex. Crim. App. 2011) (analyzing
this exception to the mootness doctrine). However, Applicant’s claim may
fail to meet this exception for the same reason that the Court refused to
extend the exception in Bohannan: because there is no reason to believe
Applicant would again be subjected to the procedure at issue here.9 See
id.
9 While TDCJ would undoubtedly benefit from the Court’s guidance on these
questions, the undersigned, as an officer of the Court, is duty-bound to raise the
possibility of mootness.
12
II. In the Alternative, Because the Initial DMS Vote Was Timely,
Applicant’s Rights Could Not Have Been Violated.
Applicant’s argument regarding the timing of the DMS vote is
premised upon his legal and factual assumption that the initial
determination to deny his release to DMS for his injury to a child
conviction should have occurred in 2010. As TDCJ will establish below,
however, this assumption is inaccurate.
A. Both TDCJ and the Board have independent legal authority
to interpret Texas statutes related to their core, legislatively-
created functions, including the interpretation of laws to
determine how to calculate sentences and to institute parole
review procedures.
As a general rule, when the Legislature expressly confers a power
on a state agency, it also impliedly grants whatever powers are
reasonably necessary to fulfill its express functions or duties. Texas
Advocates Supporting Kids with Disabilities v. Texas Educ. Agency, 112
S.W.3d 234, 238 (Tex. App.—Austin 2003, no pet. hist.); Public Utility
Com’n of Texas v. City Public Service Bd. of San Antonio, 53 S.W.3d 310
(Tex. 2001), reh’g of cause overruled, (Sept. 20, 2001). The only
interpretative requirement placed on an administrative agency when
exercising the powers and authority granted by the Legislature, is that
13
the agency’s interpretations must be consistent with the constitution and
state statutes. Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640 (Tex.
App.—Austin 2004, pet. dism’d w.o.j.); see also, Ex parte Keller, 173
S.W.3d 492, 496 n.14 (Tex. Crim. App. 2005).
In the present circumstance, the Legislature conferred upon the
Board the power to determine the application and function of mandatory
supervision statutes, and necessarily the power to interpret those
statutes. See Tex. Code Crim. Proc. art. 42.18 § 7 (West 1996), repealed
by Acts 1997 75th Leg., ch. 165 § 12.22, effective September 1, 1997;
codified as Government Code Chapter 508 by Acts 1997 75th Leg., ch.
165 § 12.01, effective September 1, 1997; Tex. Gov’t Code §§ 508.001,
508.0441(c)(1). So too, the Legislature necessarily conferred upon TDCJ
the power to calculate prison sentences, including the authority to
determine when and whether both a sentence and the related term of
incarceration, begins and ends. E.g., Tex. Gov’t Code § 494.001 (“The
mission of the institutional division is . . . to effectively manage or
administer correctional facilities based on constitutional and statutory
standards.”).
14
So, too, the construction given to a statute by the administrative
agency charged with its enforcement is entitled to great weight by the
state courts faced with construing the same statute, especially if an
agency’s interpretation of an ambiguous statute is consistent and
uniform. State v. Public Utility Com’n of Texas, 883 S.W.2d 190, 196 (Tex.
1994); Falkner v. Southwestern Sav. and Loan Ass’n of Houston, 320
S.W.2d 164, 171 (Tex. Civ. App.—Austin 1958), judgment aff’d in part,
rev’d in part on other grounds, 160 Tex. 417, 331 S.W.2d 917 (1960); see
Ex parte Keller, 173 S.W.3d at 496 n.14.
Thus, the Court’s constitutional authority to review the pre-
existing and presumptively valid, statutory interpretations made by
TDCJ and the Board, as relevant here, should not be conflated with their
respective and independent authority to interpret those statutes,
including this Court’s decisions related thereto.
B. Applicant’s assumption that the initial DMS vote was
untimely, exposes an interpretative tension within the
statutory provisions creating the DMS procedure, and creates
a cascade of potential absurdities.
Before analyzing the manner in which TDCJ affirmatively
determines the initial DMS-review date for offenders like Applicant, it is
15
necessary to survey the statutory framework upon which Applicant’s
competing approach is based. As TDCJ will establish, Applicant’s
interpretive approach leads to “odd results,” which when harmonized
with the relevant text as a whole, supports the sentence methodology
used by TDCJ. See Ex parte Forward, 258 S.W.3d 151, 155 (Tex. Crim.
App. 2008) (“The statutory provisions can be harmonized to avoid such
odd results.”).
As it relates to Applicant’s DMS-eligible sentence, the Government
Code defines “mandatory supervision” as:
(5) “Mandatory supervision” means the release of an eligible
inmate sentenced to the institutional division so that the
inmate may serve the remainder of the inmate’s sentence not
on parole but under the supervision of the pardons and
paroles division.
Tex. Gov’t Code § 508.001(5) (West 2006) (emphasis added). Obviously,
the statute governing release to “mandatory” supervision uses
mandatory language. See Tex. Gov’t Code § 508.147(a) (West 2006)
(“Except as provided by Section 508.149, a parole panel shall order the
release of an inmate who is not on parole to mandatory supervision when
the actual calendar time the inmate has served plus any accrued good
16
conduct time equals the term to which the inmate was sentenced.”)
(emphasis added); see also Ex parte Ruthart, 980 S.W.2d 469, 472 (Tex.
Crim. App. 1998) (noting that the precursor to § 508.147(a) is
mandatory).
And under the relevant DMS statutes, the Board’s vote to release
an inmate to DMS requires TDCJ-CID to transfer that inmate’s factual
and legal custody to the “state,” see Tex. Gov’t Code § 508.143(b) (West
2006), and particularly to the direct control of the Pardons and Parole
Division of TDCJ (TDCJ-PD), see Tex. Gov’t Code § 508.001(5), and under
the ultimate control of the Board to revoke or continue parole. See Tex.
Gov’t Code § 508.147(b) (“An inmate released to mandatory supervision
is considered to be released on parole.”). Plainly then, the Legislature’s
intent appears to be that an inmate’s “release” to DMS—like his release
to parole—necessarily entails his release from TDCJ-CID’s physical
custody to the control of an entity outside the prison walls.
Indeed, this Court has previously determined that “release” to DMS
cannot occur unless two conditions are met: (1) the inmate cannot have
any “other convictions or warrants authorizing their continued
17
confinement,” and (2) “a parole panel has not determined such a release
would endanger the public with the offense having been committed on or
after September 1, 1996.” Ex parte Schroeter, 958 S.W.2d 811, 813 n.4
(Tex. Crim. App. 1997). The Court’s rationale in Schroeter gives strong
support to the common-sense notion under this statutory scheme that
“release” means physical release. See id. Moreover, because Applicant did
not meet both of the requirements in Schroeter, he could not have been
released in 2010. Id.
And the requirement that an inmate’s “release” to mandatory
supervision (or parole) means his physical release from TDCJ-CID’s
custody is implicit throughout both this Court’s opinions, and the
statutory framework mandating the terms of such release. For instance,
in Retzlaff, the Court reasoned that the purpose of the DMS statute was
“to permit a parole panel to exercise some discretion in deciding whether
a person who was eligible for release on mandatory supervision should,
nonetheless, be kept in custody.” 135 S.W.3d at 48 (emphasis added). The
term “in custody” as used in Retzlaff suggests that MS release refers to a
break in an inmate’s continued confinement within TDCJ-CID. See id. In
18
other words, Retzlaff suggests that the Board’s decision to grant DMS
entails a break in the inmate’s continued incarceration for the sentence
upon which DMS was granted. In arriving at this conclusion, the Court
cited the legislative history for the DMS statute. Id. n.8 (citing H.B. 1433
Comm. Report (Amended), 74th Leg. (April 11, 1995) (“[t]he purpose of
this Act is to give the Pardons and Parole Board a lever to close the
‘automatic open door’ of mandatory supervision. . . . This legislation
allows for discretionary release by the Pardons and Parole Board for all
inmates, while still providing for the original intent of the legislation,
supervised release, in most instances”)). When the Legislature referred
to the “automatic open door” under the previous non-DMS scheme, surely
it did not envision that an inmate’s “release” to DMS would result in his
continued incarceration in TDCJ-CID, in the same cell, pursuant to a
different sentence. See id.
And in Ex parte Hale, the Court also distinguished between
conditional releases resulting from parole and MS on the one hand, with
continued incarceration on the other. 117 S.W.3d 866, 872 (Tex. Crim.
App. 2003) (“Conditional releases are highly desired alternatives to
19
incarceration. For the overwhelming majority of defendants, release is
not the penalty; incarceration is. Our files do not bulge with petitions
from prisoners complaining of being punished by being released, and
demanding to be imprisoned.”). Much of the Court’s jurisprudence in this
regard supports this distinction.
More troubling, Applicant’s approach would eviscerate the requisite
constitutional premise upon which this Article 11.07 challenge is based.
If he remained in TDCJ-CID custody after his hypothetical DMS release
in 2010 for his injury to a child conviction, how then would he possess a
liberty interest sufficient to raise the present challenge? As the Supreme
Court explained, absent a physical release, there is nothing to protect:
Parole arises after the end of the criminal prosecution,
including imposition of sentence. Supervision is not directly
by the court but by an administrative agency, which is
sometimes an arm of the court and sometimes of the
executive. Revocation deprives an individual, not of the
absolute liberty to which every citizen is entitled, but only of
the conditional liberty properly dependent on observance of
special parole restrictions.
Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (emphasis added).
Morrissey is premised on the existence of a conditional liberty interest
created by an inmate’s actual physical release to the “street.” See id. It is
20
the parolee’s change in physical custody, e.g., when his conditional liberty
in continued parole is terminated in favor of his return to prison, which
implicates the Due Process Clause. Id. Absent the possibility of obtaining
the qualified liberty interest identified in Morrissey, there would be no
due process right to protect. Remarkably, Applicant’s statutory
construction removes the minimum constitutional requirement from the
DMS statute for inmates in his circumstance. In other words, if Applicant
obtained a favorable DMS vote in 2010, but—pursuant to his view of
Texas law—remained in TDCJ-CID’s physical custody for his injury to a
child conviction, he would not obtain a conditional liberty interest
sufficient to invoke the minimum procedural due process protections
attendant to the decisions related to the custody he now challenges. See
id. If Applicant’s statutory interpretation was correct, and if he was
permitted to serve his post-DMS-release for his injury to a child
conviction in TDCJ-CID’s physical custody, then this habeas application
would be non-cognizable, because there would be no conditional liberty
interest to protect. Hence, if Applicant is correct, the Court should
dismiss this claim as non-cognizable.
21
The statutory framework that would have governed the terms of
Applicant’s hypothetical “release” to DMS in 2010, also suggest that the
Legislature intended DMS-release to mean the physical release from
TDCJ-CID’s custody. For example, a parole panel shall require as a
condition of mandatory supervision, all of the following:
1. For those releasees guilty of stalking offenses, that the
releasee not go near the victim, the victim’s residence,
place of employment, or business, nor go near a school or
day-care facility where a dependent of the victim is in
attendance. Tex. Gov’t Code § 508.190.
2. Any releasee who attended an in-prison substance abuse
program “immediately before release,” must continue to
attend a “drug or alcohol abuse continuum of care
treatment program” after physical release, developed by
the Texas Commission on Alcohol and Drug Abuse. Tex.
Gov’t Code § 508.185.
3. A releasee for whom a court has made an affirmative
finding that the offense was committed because of bias or
prejudice, must “perform not less than 300 hours of
community service at a project designated by the parole
panel that primarily serves the person or group that was
the target of the releasee.” Tex. Gov’t Code § 508.188.
4. All releasees who are required to register as a sex offender
actually register. Tex. Gov’t Code § 508.186.
22
All of these mandatory conditions assume that the releasee is no longer
in TDCJ-CID’s physical custody. An assumption hard to reconcile with
Applicant’s contrary view.
Moreover, Applicant’s contention that the Board was required to
perform his initial DMS vote in 2010 leads to an array of other bizarre
and absurd outcomes. Again, if we assume the Board granted Applicant
DMS-“release” in 2010 (for his injury to a child conviction), this legal
determination would require TDCJ-CID to transfer custody of the inmate
to a separate entity outside the walls of the prison system, e.g., to TDCJ-
PD—despite the fact that the inmate was concurrently serving another,
longer, prison sentence in CID’s custody. And again, the Legislature
likely intended that DMS-release result in the inmate’s immediate
physical release from the custody of TDCJ-CID. But even assuming that
the Legislature’s intent on this question was non-determinate, in order
to achieve his result, and given there is no statutory framework
authorizing hybrid custody within TDCJ-CID, Applicant necessarily asks
the Court to order TDCJ-PD and the Board to assume legal custody and
23
control of Applicant for his DMS-sentence, while he remains in TDCJ-
CID for another sentence. 10
And his position creates another set of interpretive problems. If
Applicant had been “released” to DMS in 2010 (while still in TDCJ-CID’s
physical custody for his theft offense), how would he continue to earn flat-
time toward his DMS sentence? If Applicant contends that he is entitled
to earn flat-time then he is necessarily asking this Court to order TDCJ-
CID to award flat-time toward the DMS sentence, despite the fact that
Applicant is no longer serving that sentence in TDCJ-CID’s legal custody;
and despite the fact that no other entity has restricted his liberty thereto
by means of a detainer or blue-warrant. See Ex parte Canada, 754 S.W.2d
660, 668 (Tex. Crim. App. 1988) (“[A]pplicant is entitled to receive credit
off his sentence for the seventy-four calendar days in which he was
confined prior to the Board’s withdrawal of the pre-revocation warrant
and the initial continuation of his parole.”). Applicant cites no textual
10 This concern outlines the problem with Applicant’s poorly conceived
approach. While there may be nothing in the statutory framework explicitly
preventing such hybrid custody within TDCJ-CID, the potential cost to TDCJ-PD and
the Board to extend and maintain legal custody and control of such “releasees”
strongly suggests that this requirement should come from the Legislature, and not
the Court.
24
support for this outcome, and absent a statutory basis upon which to earn
flat-time, his conditional release in 2010 would have prevented TDCJ
from giving him credit toward his sentence. Hale, 117 S.W.3d at 871 (“In
each form of conditional release (probation, parole, and mandatory
supervision) no credit against a sentence is given for the time spent on
conditional release.”).
Or perhaps Applicant means to suggest that inmates in his position
should earn street-time toward their DMS-sentences, despite the fact
that they remain in TDCJ-CID custody for a different sentence. See Tex.
Gov’t Code § 508.283(c) (outlining the circumstances in which a parolee
is entitled to street-time credit). Indeed, if Applicant intends this—and
given the ephemeral and revocable nature of street-time credit—
Applicant is putting all similarly situated inmates in a less advantageous
position than if the 2010 DMS vote had not occurred at all. See id.
In other words, Applicant’s poorly conceived position may make it
impossible for some inmates to discharge, day-for-day, their non-
controlling DMS-sentences, after DMS-“release,” despite the fact that
they remain in prison, and would unquestionably have received flat-time
25
credit if the 2010 DMS-vote had not occurred. Applicant fails even to
acknowledge these serious interpretive problems, let alone to suggest a
way to solve them.
Finally, Applicant’s approach ignores the text of Government Code
Section 508.149(b), which justifies the decision to link Applicant’s DMS-
vote to the presumptive date for Applicant’s MS release for his theft
conviction. Section 508.149 reads, in relevant part:
(b) An inmate may not be released to mandatory supervision
if a parole panel determines that:
(1) the inmate’s accrued good conduct time is not
an accurate reflection of the inmate’s potential
for rehabilitation; and
(2) the inmate’s release would endanger the public.
Tex. Gov’t Code § 508.149 (West 2006). Applicant’s situation
demonstrates the problem with his interpretation. If the Board were
required to perform Applicant’s initial DMS-vote in 2010, more than two
years before Applicant could have been physically released with respect
to his controlling theft conviction, how then could the Board accurately
determine whether his release to DMS “would endanger the public”?
26
As this Court held in an analogous circumstance, to ensure the
accuracy of the Board’s determination to grant or deny DMS release, that
vote must be premised upon timely, up-to-date information regarding the
inmate’s propensity to be a danger to the public. Retzlaff, 135 S.W.3d at
49 (“The two statutory findings that justify non-release are predictive
judgments based upon discrete factual conclusions and subjective
appraisals. Necessarily, then, they are highly contingent upon accurate,
up-to-date information and explanation.”). Like any inmate, Applicant’s
conduct in prison during the intervening two years (between a
hypothetical and favorable 2010 DMS vote, and his ultimate physical
release), could establish that his release would endanger the public.
Applicant’s interpretation could reduce the accuracy of the public safety
inquiry, surely contrary to legislative intent. By requiring a Board vote
in 2010, Applicant would have this Court nullify the textual command
and statutory purpose of § 508.149(b).
In sum, because his “release” to DMS for his injury to a child offense
was impossible—at least for so long as his theft offense was controlling—
27
TDCJ will look to the remaining statutory text as a whole in an effort to
resolve the apparent absurdities.
C. Applicant’s legal rights could not have been violated with
respect to his DMS sentence, because the Legislature limited
the force and effect of good-time to only his conviction for
theft—at least while he was serving his controlling,
concurrent sentence for theft.
In circumstances like this, when the text of a statute could lead to
absurd results, the Court has provided those agencies tasked with
enforcing the Legislative mandates with guidance as to how to proceed:
When we interpret statutes, we seek to effectuate the
collective intent or purpose of the legislators who enacted the
legislation. We focus our attention on the literal text of the
statute in question and attempt to discern the fair, objective
meaning of that text at the time of its enactment. Thus, if the
meaning of the statutory text should have been plain to the
legislators who voted on it, we ordinarily give effect to that
plain meaning. The exception is when application of a
statute’s plain language would lead to absurd consequences
that the legislature could not possibly have intended; in such
a case, we refer to extratextual factors to determine legislative
intent.
Ruthart, 980 S.W.2d at 471 (internal citations omitted). As already
established, Applicant’s reading of the relevant DMS statutes necessarily
means that the Board’s initial DMS vote was untimely. But as also
28
established, Applicant’s interpretation leads to several unworkable,
ambiguous, and absurd results.
To this end, TDCJ directs the Court to other provisions within the
relevant statutory framework, which support the manner in which
Applicant’s sentences were calculated here, and which suggest that
Applicant’s initial DMS vote was timely. By harmonizing the statutory
provisions suggesting the necessity of an earlier DMS vote with the
Legislature’s other directives, the methodology used by TDCJ finds
support.
As relevant here, Chapter 498 of the Government Code reads:
(2) “Term” means:
(A) the term of confinement in the institutional
division stated in the sentence of the
convicting court, if the inmate is serving a
sentence for a single offense;
(B) the term of confinement established by Section
508.150, if the inmate is serving two or more
sentences consecutively; or
(C) the longest term of confinement in the
institutional division stated in the sentence of
the convicting court, if the inmate is serving
two or more concurrent sentences.
29
Tex. Gov’t Code § 498.001(5) (emphasis added). Plainly then, for purposes
of Chapter 498, in 2010 Applicant’s “term of confinement” referred to his
theft conviction, which was Applicant’s longest, controlling term. See id.;
see also supra, note 2. This definition is important because, later in the
same chapter, the Legislature narrows the force and effect of good-
conduct time to the availability of DMS with specific reference to Chapter
508. Specifically, Chapter 498 states:
Good conduct time applies only to eligibility for parole or
mandatory supervision as provided by Section 508.145 or
508.147 and does not otherwise affect an inmate’s term.
Tex. Gov’t Code § 498.003(a) (West 2006) (emphasis added). Again, this
provision is important because it extends—by explicit reference—the
limitations that Chapter 498 places on the relevance of good-time and the
availability of DMS to the “mandatory” command found in § 508.147(a).
See id. By its literal terms then, § 498.003(a) limits the availability of
DMS as derived from § 508.147(a), as follows:
Except as provided by Section 508.149, a parole panel shall
order the release of an inmate who is not on parole to
mandatory supervision when the actual calendar time the
inmate has served plus any accrued good conduct time equals
the term to which the inmate was sentenced.
30
Tex. Gov’t Code § 508.147(a) (West 2006) (emphasis added). It bears
repeating: the Legislature explicitly limited the effect of good time, and
specifically its capacity to contribute to the calculation of mandatory
supervised release, to only “the term to which the inmate was sentenced.”
See id. And given that the definition of “term” in Chapter 498 explicitly
extends to the mandatory directive in § 508.147(a), by means of §
498.003(a), inmates like Applicant are legally entitled to DMS for only
their “longest term of confinement,” at least when serving two or more
dissimilar sentences, concurrently.
Indeed, the Court has confirmed TDCJ’s interpretation in a similar
circumstance—unanimously—at least in dicta:
Arguably, the “plain” language of Section 508.147(a)
applies only to an inmate who has been sentenced to a single
term and does not apply to an inmate serving multiple
sentences. This interpretation would also resolve any conflict
between former Article 42.18, § 8(c), and former Article 42.18,
§ 8(d). This interpretation of Section 508.147(a) would also
dispose of applicant’s claim that his eligibility for mandatory
supervision for the offense in cause number 0243176D caused
the sentence for that offense to cease to operate.
Ex parte Cowan, 171 S.W.3d 890, 894 n.10 (Tex. Crim. App. 2005)
(emphasis added) (internal citations omitted). Although Cowan involved
31
the analysis of consecutive sentences under Government Code §
498.001(5)(B), and not to concurrent sentences under § 498.001(5)(C),
there is no textual reason to treat the two, co-equal subparts differently.
Moreover, Cowan supports TDCJ’s interpretation because the Court
there resolved a similar interpretive dilemma by construing the word
“term” (as utilized in § 508.147(a)) to refer to a single, identifiable,
controlling sentence. The same rationale exists here.
Thus, a fair reading of the relevant text suggests that Applicant’s
legal rights could not have been violated with respect to his DMS
sentence because the Legislature limited the force and effect of good-time
to only his conviction for theft—at least for so long as his theft offense
was his controlling sentence. In other words, until Applicant’s DMS-
eligible offense became the controlling sentence under Government Code
§ 498.001(5)(C)—which coincided with the initial DMS vote in 2013—he
could not have received the benefit of good time toward calculation of his
DMS eligibility date for his injury to a child conviction. Only after his
DMS sentence became controlling (i.e., only after he qualified for
presumptive MS release for his theft offense), did the mandatory
32
calculation under § 508.147(a) become relevant to his DMS eligible
offense. This is precisely what occurred here, see 1SHCR at 10, and is
wholly consistent with the text of the statute.
Finally, TDCJ acknowledges this Court’s decision in Ruthart, in
which the Court explicitly declined to incorporate the definition of “term”
from Chapter 498 to define “maximum term” as used in former Article
42.18, § 8(c). Ruthart, 980 S.W.2d at 472 (“[T]his definition is specifically
limited to the Government Code.”). TDCJ distinguishes Ruthart for three
reasons. First, the Court there was faced with both a different statutory
framework (e.g., the definition of “maximum term” as used in former
Article 42.18), and a distinct set of interpretive tensions related to
consecutive sentences. Second, the Court neither addressed nor rejected
TDCJ’s present contention that a fair reading of Government Code §
498.003(a) extends the definition of “term” beyond Chapter 498. Finally,
the Court implicitly adopted the methodology TDCJ used here when it
defined a “maximum term” for a concurrent sentence like that of
Applicant, in a manner that supports the methodology here. See id. at
473 (“For an inmate serving two or more concurrent sentences, we believe
33
his “maximum term” must be the longest of the concurrent sentences,
because this is the sentence that will keep him incarcerated for the
longest amount of time.”). Hence, Ruthart actually supports the
calculation below, and is arguably outcome determinative here.
In sum, Applicant is entitled to DMS consideration for his injury to
a child conviction, but only after it becomes his controlling sentence. This
approach acknowledges the fact that his “release” to DMS (i.e., to parole)
could never occur unless he was first released from physical custody for
his longest, concurrent and controlling sentence. In other words, when
interpreting these statutory dictates, the Court should distinguish
between “the when of eligibility for release [to DMS] with the whether of
eligibility for release.” Forward, 258 S.W.3d at 151 (emphasis in original).
And as the facts of this case demonstrate, doing so permits TDCJ-CID to
abide by its legal obligation to maintain legal custody and control over
Applicant for his controlling sentence, while also ensuring that Applicant
ultimately receives an up-or-down DMS vote for his injury to a child
conviction—but only after the DMS sentence becomes controlling. It also
avoids the legal absurdity that would result if TDCJ-CID was presented
34
with a certificate of release for Applicant’s DMS-sentence—signifying his
release to parole—but was nevertheless required to maintain Applicant’s
legal and factual custody for his controlling sentence.
Because Applicant could not have received the benefit of good-time
toward calculation of his DMS-eligibility date for his injury to a child
conviction until after that sentence became controlling, he was not
entitled to a DMS vote in 2010. Hence, the initial DMS vote was not
untimely under the statutory framework, and absent a violation under
that framework, there could not have been a due process violation. See
Retzlaff, 135 S.W.3d at 48–49 (demonstrating that an inmate’s
protectable liberty interest in mandatory release is based on the meaning
and applicability of the relevant statute).
III. Because Applicant’s Theft Offense Ceased to Be the Controlling
Sentence As of the Moment He Became Presumptively Eligible for
MS Release Thereto, Applicant’s Rights Could Not Have Been
Violated.
Applicant also suggests that he was entitled to physical release in
May of 2013 under the pre-1996 MS statute for his theft conviction. See
supra, note 4. Hence, according to Applicant, TDCJ violated his due
process rights by failing to physically release him in 2013, and this Court
35
should order such release immediately, despite the fact that he does not
yet qualify for release for his DMS sentence. For the reasons that follow,
Applicant is incorrect.
A controlling offense “is the conviction that will keep the prisoner
in custody for the greatest amount of time.” Mabry, 137 S.W.3d at 63
(Keasler, J., concurring). When applying the definition of controlling
offense for inmates with dissimilar concurrent sentences, there is no
requirement that the designation be permanent. And yet, Applicant’s
argument is necessarily premised on the idea that his theft offense is
controlling, forever. As TDCJ will establish below, such an assumption
leads to absurd results.
For instance, Applicant’s approach would force TDCJ-CID to
physically release him to MS for his theft conviction, despite the fact that
the statutory requirements authorizing his release for his injury to child
conviction, had not yet occurred. But until the Board affirmatively
releases Applicant to DMS for his injury to child conviction—signified by
a favorable vote and certificate of release under Chapter 508—there
would be no legal mechanism for the Board to impose parole conditions
36
for that sentence. E.g., Tex. Gov’t Code §§ 508.181–.192 (outlining the
conditions governing parole that attach after an inmate’s affirmative
release for a particular sentence). In other words, absent a certificate of
release issued pursuant to § 508.149 for his DMS offense—which
Applicant has never received—neither the Board nor TDCJ-PD would
ever obtain legal custody of Applicant for that sentence. See Tex. Gov’t
Code § 508.147(b) (“An inmate released to mandatory supervision is
considered to be released on parole.”). Without legal control, there can be
no parole conditions to enforce.
If Applicant means to suggest that the Legislature intended he
serve the remainder of his injury to a child sentence without being subject
to parole supervision, he makes no effort to account for this result. If
Applicant means to suggest that the Court should order the Board to
grant DMS release for his injury to a child conviction, to permit him the
benefit of physical release to MS for his theft conviction, he cites no
authority for this either.
Whatever Applicant may intend, if this Court granted his habeas
application, and ordered his physical release to MS for his theft
37
conviction, the Court would effectively allow Applicant to serve the
remainder of his injury to a child sentence beyond the reach and control
of both TDCJ-PD and the Board (at least for that sentence).
There is a strong statutory basis upon which to avoid the
absurdities created by Applicant’s approach. As established above, by
defining “maximum term” to mean the longest remaining concurrent
sentence—as measured at a given point in time—the absurdities implicit
in Applicant’s approach disappear. As applied here, the moment
Applicant’s good-time and calendar-time totaled the twenty-five year
term for his theft offense (i.e., the presumptive MS date), that sentence
no longer qualified as his controlling sentence, because it no longer
served to justify continued incarceration in TDCJ-CID. At that moment
Applicant’s injury to child sentence became controlling, because it was
the only remaining concurrent sentence that required continued
incarceration in TDCJ-CID.
Although Applicant does not complain on this point, it is worth
noting that the Board did not formally issue a certificate of MS release
for his theft offense in 2013, despite the fact that he met his presumptive
38
release date for that sentence. As discussed above, doing so would have
led to the statutory absurdities attendant in “releasing” an inmate to MS
while that inmate remains in TDCJ-CID custody for another sentence,
see supra, Section II. This approach also ensured that Applicant would
continue to earn both flat-time toward his sentence for theft.
Because Applicant’s DMS-eligible sentence became the controlling
sentence (for purposes of the MS release mechanism) as of the date he
was presumptively eligible for MS release for this theft offense, he was
not entitled to physical release in 2013. And absent a statutory violation,
there could not have been a due process violation. See Retzlaff, 135
S.W.3d at 48–49 (demonstrating that an inmate’s protectable liberty
interest in mandatory release is based on the meaning and applicability
of the relevant statute).
39
PRAYER FOR RELIEF
For the foregoing reasons, TDCJ respectfully requests that this
Court dismiss Applicant’s Article 11.07 application as moot, or
alternatively to deny the application, and hold that the manner
methodology used here was correct.11
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
ADRIENNE McFARLAND
Deputy Attorney General
for Criminal Justice
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
/s/ Joseph P. Corcoran
JOSEPH P. CORCORAN*
*Lead Counsel Assistant Attorney General
Supervising Attorney
for Non-Capital Appeals
Criminal Appeals Division
State Bar No. 00793549
11If the Court adopts a different interpretation, TDCJ humbly asks the Court
to assist it in harmonizing the new approach with the remaining statutory
framework. TDCJ has attempted to identify some of the interpretative tensions
above, and asks the Court to address at least those questions.
40
Joseph.Corcoran@TexasAttorneyGeneral.gov
P. O. Box 12548, Capitol Station
Austin, Texas 78711
ATTORNEYS FOR THE TEXAS
DEPARTMENT OF CRIMINAL
JUSTICE
41
CERTIFICATE OF SERVICE
Pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate
Procedure, I do hereby certify that if the email address of the attorneys
designated below is on file with the electronic filing manager, a true and
correct copy of the foregoing notice was served electronically by that
electronic filing manager, on the following attorneys via electronic mail:
Kenneth Nash
State Counsel for Offenders
Attorney for Applicant
Andrea Jacobs
Assistant Criminal District Attorney
Tarrant County, Texas
Moreover, I do hereby certify that if the email addresses for the
designated attorneys are not on file with the electronic filing manager, a
true and correct copy of the foregoing pleading was served by email,
addressed to:
Kenneth Nash
Ken.Nash@tdcj.texas.gov
Andrea Jacobs
atjacobs@tarrantcounty.com
/s/ Joseph P. Corcoran
JOSEPH P. CORCORAN
Assistant Attorney General
42
CERTIFICATE OF COMPLIANCE WITH
TEXAS RULE OF APPELLATE PROCEDURE 73.1(f)
This brief complies with Tex. R. App. Proc. 73.3 in that it contains
9,055 words, as calculated pursuant to Tex. R. App. Proc. 73.1(d), in
Microsoft Word 2013, Century, 14 points.
/s/ Joseph P. Corcoran
JOSEPH P. CORCORAN
Assistant Attorney General
43
Nos. WR-31,454-03 & WR-31,454-04
______________________________
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
______________________________
EX PARTE RODNEY ELNESTO SMILEY, Applicant.
______________________________
On Application for a Writ of Habeas Corpus
Cause No. C-213-010293-1011284-B
In the 213th District Court from Tarrant County
Cause No. W94-02594-U(A)
In the 291st District Court from Dallas County
______________________________
APPENDICES
______________________________
KEN PAXTON *JOSEPH P. CORCORAN
Attorney General of Texas Assistant Attorney General
Supervising Attorney
CHARLES E. ROY for Non-Capital Appeals
First Assistant Attorney General Criminal Appeals Division
State Bar No. 00793549
ADRIENNE McFARLAND Joseph.Corcoran@TexasAttorneyGeneral.gov
Deputy Attorney General
for Criminal Justice *Lead Appellate Counsel
P. O. Box 12548, Capitol Station
EDWARD L. MARSHALL Austin, Texas 78711
Chief, Criminal Appeals Division Telephone: (512) 936-1400
Facsimile: (512) 936-1280
_____________________________
ATTORNEYS FOR THE
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
APPENDIX A
1st Supplemental Clerk’s Record
APPENDIX B
2nd Supplemental Clerk’s Record
0 3I,43V~0V
2nd SUPPLEMENTAL
CLERK'S RECORD
VOLUME 1 of 1
Writ Number: C-213-010293-1011284-B
Filed In the 213TH DISTRICT COURT
of Tarrant County, Texas
Vot2£5fe&v Hon. LOUIS E. STURNS, Presiding Judge
EX PARTE: RODNEY ELNESTO SMILEY
'•••••
vs.
THE STATE OF TEXAS
Appealed to the Courtof Criminal Appeals
for the State Of Texas
FEB 17 2015
at Capitol Station
AUSTIN, TEXAS
ATTORNEY FOR THE APPELLANT
KENNETH NASH, RETAINED
STATE COUNSEL FOR OFFENDERS
P.O. BOX 4005
HUNTSVILLE, TEXAS 77342-4005
PHONE: 936-437-5203
FAX:
SBOT: 14811030
Attorney for RODNEY ELNESTO SMILEY,Appellant
(Court of CRIMINAL APPEALS)
Delivered to the Court of CriminalAppeals for the State Of
Cause No.
Texas At Capitol Station, AUSTIN, Texas, on the Filed in the Court of CriminalAppeals for the State of Texas,
at CapitolStation, AUSTIN, Texas, this
JJ_ day of (eJbTsAAfiA.ZOlS7
tf
THOMAS A. WILDER, DISTRICT CLERK,
.day of.
TARRANT COUNTY, FORTWORTH, TEXAS
CfaiiJ&j. LOUISE PEARSON .Clerk
LAUREN RABY By. Deputy
Deputy District Clerk
INDEX
tl1111im)linillIMII1llirnrtr«l«" '"'''^''''"'''llllllllllllllllllllllllllrfflnnfflllM^ ' 'II ' 'iMmVMI^fW™*MMVBmMM™IMW^M1, ~*»m>mmi>nmmmimww^>«»r*iiimm?m»imm350 S.W.3d
116,120 (Tex. Crim. App. 2011) (admonishing TDCJ's Pardons and Paroles
2This same predicament is also presented inExparte Brandon, Case No. WR-81,846-02, also
pending before the Court of Criminal Appeals.
3Subsequently, Applicant was promoted in time-earning status and mandatory-supervision
releasedate on his old sentence was advanced to May 13,2013. SeeApplicationfor Writ of
Habeas Corpus at 8 (Exhibit E-l).
Division to obey the law); cf. Exparte Bohannan, 350 S.W.3d at 121 (Keasler, J.,
concurring).
4. Wherefore, Applicant prays that this court enter appropriate findings of
fact and conclusions of law and recommend to the Court of Criminal Appeals that
the Application for Writ ofHabeas Corpus begranted, and that Applicant
immediately be released on discretionary mandatoryJsuperyision.__.
Respectfully submitted,
State Counsel for Offenders
Attorney for Applicant
Kenneth NaslT
Texas Bar No. 14811030
P.O. Box 4005
Huntsville, TX 77342
Telephone no. 936-437-5291
Facsimile no. 936-437-5279
E-mail address: Ken.Nash@tdci.texas.gov
CERTIFICATE OF COMPLIANCE
In accordance with Rule 9.4(i)(3), Rules ofAppellate Procedure, I certify
that this computer-generated document is comprised of 773 words (excluding the
matters listed in Rule 9.4(i)(l)).
fc*L^A*~ L
Kenneth Nash
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Applicant's Response
to the Affidavit ofCharley Valdez was served upon the attorney for the State,
Andrea Jacobs, at 401 West Belknap, Fort Worth, TX 76196, by first-class United
States mail on February L^> , 2015.
J
<^i^rM^yi"_l\^_
Kenneth Nash
FEB ! 0 2015
T1MF v3' &fi
BY ,*PT1? DEPUTY
g>tate Counsel for ®ffenber£
3 JDititiion ofWexat Btpartment of CriminalJustitt
P.O. Box 4005
Huntsvillc,TX 77342-1005
(936)437-5203
February 4,2015
Tarrant County District Clerk's Office
401W. Belknap =.-J=a^=M=^..-_
Ft.Worth, Texas" 76196"
CERTIFIED MAIL RETURN RECEIPT REQUESTED #7012 1010 0002 5674 5203
Re: The State ofTexas v. Rodney ElnestoSmiley
Cause No. C-213-010293-1011284-B in the
213th Judicial District Court ofTarrant County, Texas
Dear Sir or Madam:
Enclosed, please find original and two copies of Applicant's Response to the
Affidavit of Charley Valdez.
By copy of this letter, I am forwarding a copy of same to Ms. Andrea Jacobs,
attorney for the state. Please return a file-stamped copy ofthe memorandum to the
undersigned in the enclosed stamped envelope.
Thank you for your courtesies regarding this matter. If there are any
questions, please contact undersigned counsel.
Sincerely,
Kenneth Nash
Appellate Section Chief
Phone: (936) 437-5291
Fax:(936)437-5295 . .
E-Mail Address: Kenneth.Nash@tdcj.texas.gov
Enclosures
cc: Ms. Andrea Jacobs CMRRR #7012 1010 0002 5674 5210
Deputy District Attorney
Tim Curry Criminal Justice Center
401 West Belknap
Fort Worth, Texas 76196
cc: Mr. Rodney Elnesto Smiley
TDCJ# 00693698
Estes Unit
—1100 Highway 1807 ' --—....•.•.__..•
Venus, Texas 76084
8
State Counsel for Offenders
P.O. Box 4005
Huntsville, TX 7.7342
' ATTN: Appellate Section
7D12 1D1Q 0DD2 5b74 5203 &$M&
ffiiSB !&:? ^007.6'/°
'-&
^ ;3
FILED
TH«^c"!TEarK Tarrant County District Clerk's Office
401W. Belknap
FEB 10 2015
Ft Worth, Texas 76196
TWE_
BY_ .DEPUTY
CD
Certified True Copy
THE STATE OF TEXAS
COUNTY OF TARRANT
I, Thomas A. Wilder, Clerk of the District Courts of Tarrant County, Texas, do hereby certify that the above and
foregoing is a true and correct copy of ALL PROCEEDINGS HAD.
In Writ Number: C-213-010293-1011284-B
EX PARTE: RODNEY ELNESTO SMILEY
VS.
THE STATE OF TEXAS
as the same appears on the file and/or record in my said office.
GIVEN UNDER MY HAND and seal of Said Court at office in the City of Fort Worth,
Tarrant County, Texas, this the // ,day of ^JOTUOfU .A.D. ?J)lS .
THOMAS A. WILDER
CLERK, DISTRICT COURTS, TARRANT COUNTY, TEXAS
by rf\nM j 0si
Deputy
10
APPENDIX C
3rd Supplemental Clerk’s Record
• 3rd SUPPLEMENTAL
• 3/, 46'-/- 0~
CLERK'S RECORD
VOLUME 1 of 1
Writ Number: C-213-010293-1011284-B
Filed In the 213TH DISTRICT COURT
of Tarrant county, Texas RECEIVED IN
Hon. LOUIS E. STURNS, Presiding Judge COURT OF CRIMINAL APPEALS
lFEB 26 2015
EX PARTE: RODNEY ELNESTO SMILEY
vs.
THE STATE OF TEXAS
Appealed to the Court of Criminal Appeals
for the State OfTexas
at Capitol Station
AUSTIN, TEXAS
ATTORNEY FOR THE APPELLANT
KENNETH NASH, RETAINED
STATE COUNSEL FOR OFFENDERS
P.O. BOX 4005
HUNTSVILLE, TEXAS 77342~4005
PHONE: 936 437-5203
FAX:
SBOT: 14811030
Attorney for RODNEY ELNESTO SMILEY, Appellant
Delivered to the Court of Criminal Appeals for the State Of (Court of CRIMINAL APPEALS)
Texas At Capitol Station, AUSTIN, Texas, on the Cause N o . - - - - - - - - - - - - -
Filed in the Court of Criminal Appeals for the State of Texas,
.B._ day of ~//lA.1j 2/!J J ~ at Capitol Station, AUSTIN, Texas, this
THOMAS A. WILDER, DISTRICT CLERK,
_ _ _ day of _ _ _ _ _ _ _ _, _ _ __
TArRANT CO TY, ~EXAS
_ _ _ _ _..:.LO=U=I=SE=--'-'PE=A.!!.R=S=Oc:...:N_ _ __. Clerk
By _ _ _ _ _ _ _ _ _ _ _ _ _ _ , Deputy
• INDEX
•
Caption ........................ ~ ................................................................................................................................1
State's Proposed Memorandum, Findings of Fact and Conclusions of Law ............................................. 2
Order ..........................................................................................................................................................9
Clerk's Certificate ......................................................................................................................................10
CAPTION
THE STATE OF TEXAS §
COUNTY OF TARRANT §
At a term of the 213TH DISTRICT COURT of Tarrant County, Texas, the Honorable LOUIS E. STURNS
sitting as Judge of said court, the following proceedings were had, to-wit:
Writ Number: C-213-010293-1011284-B
EX PARTE:
RODNEY ELNESTO SMILEY
vs.
THE STATE OF TEXAS
1
. .. ,
..
•
NO. WR-31,454-03
NO. C-213-010293-1011284-B
EX PARTE §
§
§ ·DISTRICT COURT OF
§
RODNEY ELNESTO SMILEY § TARRANT COUNTY, TEXAS
STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT
AND CONCLUSIONS OF LAW
The State proposes the following Memorandum,· Findings of Fact and
Conclusions of Law regarding the issues raised in the present Application for Writ of
Habeas Corpus.
MEMORANDUM
The applicant, RODNEY ELNESTO SMILEY ("Applicant"), alleges his
confinement is illegal because (1) his right to due process was violated when the
notice and vote of the Texas Department of Criminal Justice- Board of Pardons and
Parole ("TDCJ") were made more than 2 years after he became eligible for
mandatory supervision release and (2) his due course of law rights were violated
when TDCJ's notice and vote were made more than 2 years after he became eligible
for mandatory supervision. See Application, p. 6-9.
The Texas Court of Criminal Appeals. has remanded this application back for
resolution of whether Applicant was denied due process by the late vote to deny him
2
• •
release to discretionary mandatory supervision. See Ex parte Smiley, No. WR-
31,454-03 (Tex; Crim. App. Nov. 26, 2014) (not designated for publication).
In response to an order from this Court, Charley Valdez, Program Supervisor
III for the Classifications and Records Department of the Texas Department of
Criminal Justice- Correctional Institutions Division, has filed an affidavit addressing
Applicant's claims. In light of Applicant's contentions and the evidence presented in
the Writ Transcript,' the Court should consider the following proposed findings of
fact and conclusions of law:
FINDINGS OF FACT
General Facts
1. Applicant pled guilty, pursuant to a plea agreement, to the third degree felony
offense of injury to a child with intent to cause bodily injury. See Judgment,
No. 1011284D.
2. In accordance with the plea agreement, the State waived the habitual offender
notice and the trial court sentenced him to ten years confinement in the Texas
Department of Criminal Justice- Institutional Division. See Judgment.
3. Applicant did not appeal his conviction. See Criminal Docket Sheet, No.
1011284D. .
4. Applicant's first application for writ of habeas corpus was dismissed for non-
compliance on August 6, 2014. See Ex parte Smiley, WR-31,454-02, No. C-
213-010241-1011284-A (Tex. Crim. App. Aug. 6, 2014) (not designated for
publication).
2
3
•
"Late" Consideration for Mandatory Supervision
5. Applicant's sentence date in this case, Cause Number 1011284D, was October
26,2006 with pre-trial credit back to February 8, 2006. See Valdez Affidavit,
p. 2.
6. Applicant received a twenty-five year sentence in Cause Number F-9402594-
PU O\lt of Dallas County on November 28, 1994, with credit back to June 28,
1994. See Valdez Affidavit, p. 2.
7. After revocation of parole in Cause Number F-9402594-PU on November 8,
2006, Applicant forfeited four years, four months, and eight days of time. See
Valdez Affidavit, p. 2.
8. Applicant's maximum discharge date in Cause Number F-9402594-PU is
November 4, 2023, twenty-nine years, four months, and eight days after June
28, 1994. See Valdez Affidavit, p. 2.
I
9. Based on Applicant's sentence and good time credits, Applicant was eligible
for release to mandatory supervision on May 12, 2013, in Cause Number F-
9402594-PU. See Valdez Affidavit, p. 3.
10. Because an offender may not be released to mandatory supervision until
eligible for release on all offenses, TDCJ did not calculate Applicant's
mandatory supervision eligibility in this case separate from his eligibility in
Cause Number F-9402594-PU as that offense was the controlling mandatory
offense. See Valdez Affidavit, p. 3.
11. It would be unreasonable that an offender is entitled to release to mandatory
supervision if he is only eligible for release on one offense but not all offenses.
12. It is unreasonable for TDCJ to consider an offender for release to mandatory
supervision on an offense if he is not eligible for release to mandatory
supervision on all offenses because, even if granted release to mandatory
supervision on one offense, Applicant will not be released to mandatory
supervision unless eligible for release on all offenses.
13. Applicant was notified on January 29, 2013, that he would be reviewed for
release to mandatory supervision and that he had until February 28, 2013, to
provide any information in support ofhis release. See Valdez Affidavit, p. 3.
3
4
. '
• •
14. On April 10, 2013, Applicant was denied release to mandatory supervision.
See Valdez Affidavit, p. 3.
15. On December 12, 2013, Applicant was given notice that he would be
considered for release to mandatory supervision and that he had until January
11, 2014, to provide any information in support of his release. See Valdez
Affidavit, p. 3.
16. On February 18, 2014, Applicant was denied release to mandatory
supervision. See Valdez Affidavit, p. 3.
17. On October 14, 2014, Applicant was notified that he would be reviewed for
release to mandatory supervision and that he had until November 15, 2014, to
provide any information in support of his release. See Valdez Affidavit, p. 3. ·
18. On December 15, 2014, Applicant was denied release to mandatory
supervision. See Valdez Affidavit, p. 3.
19. Applicant's next review date is December, 2015. See Valdez Affidavit, p. 3.
20. Applicant will currently discharge the sentence in this case on February 8;
2016. See Valdez Affidavit, p. 2.
CONCLUSIONS OF LAW
General Writ Law
1. In a habeas corpus proceeding, the burden of proof is on the applicant. Ex
parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). An applicant "must
prove by a preponderance of the evidence that.the error contributed to his
conviction or punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex.
Crim. App. 2001 ). ·
2. Relief may be denied if the applicant states· only conclusions, and not
1
specific facts. Ex parte McPh,erson, 32 S.W.3d 8?0, 861 (Tex. Crim. App.
2000). In addition, an applicant's sworn allegations alone are not sufficient
to prove his claims: Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim.
App. 1988). .
4
5
• •
"Late" Consideration for Mandatory Supervision
3. Applicant has failed to prove that he was eligible for release to mandatory
supervision in this case prior to May 12, 2013.
4. Applicant has failed to prove that his consideration for mandatory supervision
in this case was late.
5. An inmate has a constitutional due process right to 30 days' advance notice
before being considered for release to mandatory supervision. Ex parte
Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004).
6. Applicant received proper notice before he was considered for release to
mandatory supervision.
7. Applicant has failed to prove that he was denied due process when TDCJ
reviewed him for release to mandatory supervision in 2013.
8. This Court recommends that Applicant's first ground for relief be DENIED.
9. Applicant has failed to prove that he was eligible for release to mandatory
supervision in this case prior to May 12, 2013.
10. Applicant has failed to prove that his consideration for mandatory supervision
in this case was late.
11. An inmate has a constitutional due process right to 30 days' advance notice
before being considered for release to mandatory superv1s1on. Ex parte
Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004).
12. Applicant received proper notice before he was considered for release to
mandatory supervision.
13. Applicant has failed to prove that he was denied course of law when TDCJ
reviewed him for release to mandatory supervision in 20 13.
14. This Court recommends that Applicant's second ground for relief be
DENIED.
5
6
• •
WHEREFORE, the State prays that this Court adopt these Proposed Findings
of Fact and Conclusions of Law and recommend that Applicant's grounds for relief
be DENIED ..
Respectfully submitted,
SHAREN WILSON
Criminal District Attorney
Tarrant County
·~
· Andrea Jacobs
Assistant Criminal District Attorney
State Bar No. 24037596
401 West Belknap
Fort Worth, TX 76196-0201
Ph.one: 817/884-1687
Facsimile: 817/884-1672
CERTIFICATE OF SERVICE
A true copy of the above has been mailed to Applicant, Mr. Rodney Elnesto ·
Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel
for Offenders, P.O. Box 4005, Huntsville, Texas 77342 on the 18TH day of February,
2015.
Andrea Jacobs
CERTIFICATE OF COMPLIANCE
I certify that the total number of words in ·this State's Memorandum, Proposed
Findings of Fact and Conclusions of Law is 1528 words as determined by Microsoft
Office Word 2013.
r----···
Andrea Jacobs .
6
7
• •
NO. WR-31,454-03
NO. C-213-010293-1011284-B
EX PARTE § IN mE 213th JUDICIAL
§
§ DISTRICT COURT OF
§
RODNEYELNESTOSN.ULEY § TARRANT COUNTY, TEXAS
ORDER
The Court adopts the State's Memorandum, Findings of Fact and Conclusions
of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY
("Applicant") requests should be DENIED. The Court further orders and directs:
1. The Clerk of this Court to file these findings and transmit them along
with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by
law.
2. The Clerk of this Court to furnish .a copy of the Court's findings to
Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon.
Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas ·
77342 (or to Applicant's most recent address), and to the post-conviction section of
the Criminal District Attorney's Office.
SIGNED AND ENTERED this _ _ day of _ _ _ _ _ _ _ _, 2015.
JUDGE PRESIDING
1
8
•• • FILED
THOMAS A WILDER, DIST. CLERK
· TARRANT COUNTY. TEXAS
FEB 24 2015
NO. WR-31,454-03
NO. C-213-010293-1011284-B TIME ' I ;d., Lp
BV ___~~:;:::::::e:::...J DEPUTY
EX PARTE § IN THE 213th JUDICIAL
§
§ DISTRICT COURT OF
§
RODNEY ELNESTO SMILEY § TARRANT COUNTY, TEXAS
ORDER
'
The Court adopts the State's Memorandum, Findings ofF act and Conclusions
of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY
("Applicant") requests should be DENIED. The Court further orders and directs:
1. The Clerk of this Court to file these findings and transmit them along
with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by
law.
2. The Clerk of this Court to furnish a copy of the Court's findings to
Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon.
Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas
77342 (or to Applicant's most recent address), and to the post-conviction section of
the Criminal District Attorney's Office.
SIGNED AND ENTERED this __2_±_ day of:E_.J.-Q..-~b=--.~1~-.- _ __ : , 2015.
,9
Certified True Copy
THE STATE OF TEXAS §
COUNTY OF TARRANT §
I, Thomas A. Wilder, Clerk of the District Courts of Tarrant County, Texas, do hereby certify that the above and
foregoing is a true and correct copy of ALL PROCEEDINGS HAD.
In Writ Number: C-213-010293-1011284-B
EX PARTE: RODNEY ELNESTO SMILEY
vs.
THE STATE OF TEXAS
as the same appears on the file and/or record in my said office.
GNEN UNDER MY HAND and seal of Said Court at office in the City of Fort Worth,
Tarrant County, Texas, this the 2!1.._, day of~, A.D. ~) S
CLERK, DISTRICT COURTS, TARRANT COUNTY, TEXAS
::-· . ·-
10
APPENDIX D
Clerk’s Record
.... --··
RECE~VED ~N
• _,,
~}
:•: ...
.. '•
• - <
CO\JRT OF CR\M\NAL APPEALS
SEP 25 2014 CLERK'S RECORD
Abel Acosta, Clerk VOLUME 1 of 1
Writ Number: C-213-010293-1011284-B
Filed In the 213TH DISTRICT COURT
of Tarrant County, Texas
Hon. LOUIS E. STURNS, Presiding Judge
EX PARTE: RODNEY ELNESTO SMILEY
vs.
THE STATE OF TEXAS
Appealed to the Court of Criminal Appeals
for the State Of Texas
at Capitol Station
AUSTIN, TEXAS
ATIORNEY FOR THE APPELLANT
KENNETH NASH, RET AI NED
STATE COUNSEL FOR OFFENDERS
P.O. BOX 4005
HUNTSVILLE, TEXAS 77342-4005
PHONE: (936) 437-5203
FAX:
SBOT: 14811030
Attorney for RODNEY ELNESTO SMILEY, Appellant
Delivered to the Court of Criminal Appeals for the State Of (Court of CRIMINAL APPEALS)
Texas At Capitol Station, AUSTIN, Texas, on the Cause N o < - - - : - - - - - : - - - - - - : - : = - - -
Filed in the Court of Criminal Appeals for the State of Texas,
_2:!L dayof~/Py, ~)tf at Capitol Station, AUSTIN, Texas, this
_ _ _ day of _ _ _ _ _ _ _ _ _ _ __
_ _ _ ___,L,_,O=U=IS'-'=E'-'-P-'=EA'-"R_,S=O=N,___ __.. Clerk
By _ _ _ _ _ _ _ _ _ _ _ _ _ , Deputy
Deputy District Clerk
• Application for Writ of Habeas Corpus
from Tarrant County, Texas
213TH DISTRICT COURT
Ex Parte:
RODNEY ELNESTO SMILEY
WRIT NO. C-213-010293-1011284-B
CLERK'S SUMMARY SHEET
APPLICANT'S NAME: RODNEY ELNESTO SMILEY
OFFENSE: INJ CHILD/ELD/DISABL-BI
PLEA: GUlL TY
CAUSE NO: 1011284D
SENTENCE: 10 YEARS IDTDCJ
SENTENCE DATE: 10/26/2006
TRIAL JUDGE'S NAME: HONORABLE ROBERT GILL
APPEAL NO: NONE
CITATION TO OPINION: N/A S.W. N/A
HEARING HELD: NO
FINDINGS & CONCLUSIONS FILED: YES
RECOMMENDATION: DISMISS AS MOOT
HABEAS JUDGE'S NAME: HONORABLE LOUIS E STURNS
NAME OF COUNSEL IF APPLICANT IS REPRESENTED: KENNETH NASH
• INDEX
•
Caption ....................................................................................................................................................... 1
Application for Writ of Habeas Corpus ....................................................................................................... 2
Waiver of Service .....................................................................................................................................52
State's Response to Application for Writ of Habeas Corpus ................................................................... 53
State's Proposed Memorandum, Findings of Fact and Conclusions of Law ........................................... 60
Order .......................................................................................................................................................65
Clerk's Certificate ......................................................................................................................................66
ce
CAPTION
THE STATE OF TEXAS §
COUNTY OF TARRANT §
At a term of the 213TH DISTRICT COURT of Tarrant County, Texas, the Honorable LOlliS E. STURNS
sitting as Judge of said court, the following proceedings were had, to-wit:
I(
\
Writ Number: C-213-010293-1011284-B
EX PARTE:
RODNEY ELNESTO SMILEY
vs.
THE STATE OF TEXAS
1
(. FILED
\... -~~M~~RK.
AUG 25 2014
Case No. TIME /:4~1;;
(The Clerk of the convicting court will fill thi~ yne in.) sv_·:.:.::_:-:-:,B~.~-:?g~:::-0-EP-UlY--..
C,- ·~ \y 0lD 213- ID)J·zBci- ·- F3
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
. .
APPLICATION FOR A WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
NAME: Rodney Elnesto Smiley
DATEOFBIRTH: _fu~ly~12~,_1_96_4__________________________~----------
PLACE OF CONFINEMENT: Sanders "Sandy" Estes Unit (TDCJ)
TDCJ-CID NUMBER: _00_6_93_6_9_8 --------- SID NUMBER: _03_3_6_12_0_5_ _ _ __
(1) This applicatio~ concerns (check all that ~pply):
D a conviction D · parole
D a sentence 0 mandatory supervision
D time credit D out-of-time appeal or petition for
discretionary review
(2) . What district court entered the judgment of the conviction you want relief from?
(Include the court number and county.)
213th District Court ofTanant County, Texas
(3) What was the case number in the trial court?
1011284D
(4) What was the name of the trial judge?
Robert K. Gill
Effective: January 1, 2014 1
2
(-·
(5) · Were you represented by counsel? If yes, provide the attorney's name:
Yes; Joetta Keene
(6) What was the date that the judgment was entered?
October 26, 2006
(7) For what offense were you convicted and what was the sentence?
Injmy to a Child; 10 years' confinement in Institutional Division, TDCJ
(8) · If you were sentenced on ·more than one count of an indictment in the same court ,at
the same time, what counts were you convicted of and what was the sentence in each
count?
(9) What was the plea you entered? (Check one.)
D guilty:-open plea IV Iguilty..:plea bargain
D not guilty · D nolo conte1idere/no. contest
If you entered different pleas to counts in a multi-count indictment, please explain:
(10) What kind of trial did you have?
0nojury
B jury for guilt and punishment
jury for guilt~ judge for punishment
2
3
I
I
(11) Did you testify at trial? If yes, at what phase of the trial did you testify?
(12) Did you appeal from the judgment of conviction?
~no
. .
If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to?
(B) What was the case number?
(C) Were you represented by counsel on appeal? If yes, provide the-attorney's
name:
(D) What was the decision and the date of the decision?
_ (13) Did you file a petition for discretionary review in the Court of Criminal Appeals?
Dyes
If you did file a petition for discretionary review, answer the following q:nestions:
(A) What was the case number?
(B) What was the decision and the date of the decision?
(14) Have you previously filed an application for a writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure challenging this conviction?
~yes Ono
lfyou answered yes, answer the following questions:
WR-454-02-
(A) What was the Courf of Criminal Appeals' writ number?
3 - 4
.c. ce
Dismissed; August 6, 2014
(B) Whatwasthedecision and the date ofthe decision?
(C) Please identify the reason that the current claims were not presented and could
not have been presen~ed on your previous application.
(15) Do you currently have any petition or appeal pending in any other state or federal
court?
~yes 'Ono··
If you answered yes, please provide the name of the court and the case number:
291st District Court ofDallas County, Texas; Cause No. W94-02594-U(B)
(16) If you are presentinga claim for time credit, have you exhausted your
administrative remedies by presenting your claim to the time. credit-resolution
system of the Texas Department of Criminal Justice? (This requirement applies to
any finaf felony conviction, including state jail felonies) ·
Ono
If you answered yes, answer the following questions: .
· (A) What date did you present the claim?
(B) Did you receive a decision and, if yes, what was the date of' the decision?
If you answered no, please explain why you have not submitted your claim:
4
5
ce ce
Not applicable, see Ex parte Long, No. WR-64,125-01, 2006 Tex. Crim. App.
Uni:mb. LEXIS 515 at *1-2 (per curiam order delivered March 8, 2006).
Moreover, Applicant is excused from the exhaustion requirement by Sec~
501.0081(c), Government Code.
(17) Beginning on page 6, state concisely every legal ground for your claim that you are
being unlawfully restrained, and then briefly summarize the facts supporting each
. ground. You must present each ground on the form application and a brief
summary.ofthe.facts. lfyour groUJ~ds and briefsumma~y of~hefacts have not been
presented Oil the fomi application, the f;ourt Wi/lnot consider you_r groUTlifS.
Ifyou have more than four grounds, use pages 14 and 15 of the form, which you
m~y copy as many times as needed to give you a separate page for each ground, with
~ach ground numbered i~ sequence. tile recitatio~ of the facts supporting e~ch
ground must be no longer than the two pages provided for the ground in the form.
You may include with the form a memorandum of law if you want to present legal
authorities, but the Court will not consider grounds for relief set out in a
~emorandum of hiw that -yvere not raised on the for:m. The citations imd arg~ment
must be in a memorandum that compli~s with Texas Rule· of Appellate Procedure 73 .
and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
are challenging the validity of your conviction, please include a summary of the facts
pertaining to your offense and trial in your memorandum.
5 6
ce
GROUND ONE:
Applicant's right of due process was violated when TDCJ's notice was given and BPP's vote
was taken more than 2 years after Applicant became eligible for mandatory supervision release.
FACTS SUPPORTING GROUND ONE:
·On November 28, 1994, Applicant was convicted ofthe offense of Theft ofProperty and
sentenced to 25 years' confinement in the TDCJ-ID. See Exhibit A. On August 30, 2001,
Applicant was released from custody on parole supervision. See Exhibit B-4. On October 26,
2006 (and while on parole supervision), Applicant was convicted of the offense oflnjury to a
Child and sentenced to 10 years' confmement in TDCJ-ID. See Exhibit C. On Nove~ber 8,
2006, the Board of Pardons and Parole (BPP) revoked Applicant's parole. See Exhibit B-3. On
December 7, 2006, TDCJ-ID determined Applicant's mandatory supervision release date on his
old sentence as April 8, 2014 and his (discretionary) mandatory supervision release date on his
new sentence as September 21, 2010. See Exhibit D. Subsequently, Applicant was promoted in
time-earning status and his mandatory supervision release date on his old sentence was advanced
to May 13, 2013. See Exhibit E-1. According to a document entitled NDMS Information dated
January 14, 2013, well after Applicant achieved his eligibility for release on (discretionary)
mandatory supervision, TDCJ notified Applicant that he would be reviewed for (discretionary)
6
7
ce
mandatory supervision release. See Exhibits F and B-1. On April10, 2013, a BPP parole
panel issued its decision to deny mandatory supervision release (DMS). See Exhibits G and B-1.
TDCJ re-established Applicant's (discretionary) mandatory supervision release date on his new
sentence as February 8, 2016. See Exhibit E-1.
According to TDCJ's original calculations, Applicant would have become eligible for
(discretionary) mandatory supervision release on his new sentence on September 21,2010. See
Exhibit D. However,'TDCJ and BPP delayed more than
. 2 years before.taki'ng any
. action. See
Exhibit R-1. Applicant should be immediately relea~ed on mandatory supervision on his new
sentence.
7 8
ce.
GROUND TWO:
Applicant's due-course-of-law-rights were violated when TDCJ's notice was given and BPP's
vote' was taken more than 2 yeai·s after Applicant became eligible for mandatmy supei-vision.
FACTS SUPPORTING GROUND TWO:
On November 28, 1994, Applicant was convicted of the offense of Theft of Property and
sentenced to 25 years' confinement in the TDCJ-ID. See Exhibit A. On August 30, 2001,
Applicant was released from custody on parole supervision. See Exhibit B-4. On October 26,
2006 (and while on parole supervision), Applicant was convicted of the offense oflnjury to a
Child and sentenced to 10 years' confinement inTDCJ-ID. See Exhibit C. On.November 8, ·
2006, the Board ofP~donsand Parole (BPP) reyoked Applicant's parole. See Exhibit B-3. On
December 7, 2006, TDCJ-ID determined Applicant's mandatory supervision rekase date on his
. . .
ol4 sentence as April '8, 2014 ~hd his (discretionary) ma~datory supervision·.release date on his
new sentence as September 21, 2010. See Exhibit D. Subsequently, Applicant was promoted in
time-earning ·status and his mandatory supervision release date on his old senten~e was advanced
ilil
to May 13, 2013. See Exhibit E-1. According to a document entitled NDMS Information dated
January 14, 201:3, well after Applicant achieved his eligibility for release on (discretionary)
mandatory supervision, TDCJ notified Applicant that he would be reviewed for (discretionary)
8
9
re. ce
mandatory supervision release. See Exhibits F and B-1. On April10, 2013, a BPP parole panel
issued its decision to deny mandatory supervision release (DMS). See Exhibits G and B-1.
TDCJ re-established Applicant's (discretiomny) mandatmy supervision release date on his new
sentence as Feoruary 8, 2016. See Exhibit E-1.
According to TDCJ's original calculations, Applicant would have become eligible for
(discretionary) mandatory supervision release on his new sentence on September 21, 2010. See
Exhibit D. However, TDCJ and BPP delayed more than 2 years before taking any action. See
· Exhibit B-1. Applicant should be immediately releas·ed on mandatory supervision on his new
sentence.
9
10
GROUND THREE:
FACTS SUPPORTING GROUND THREE:
10
11
. (.
11. 12
GROUND FOUR:
FACTS SUPPORTING GROUND FOUR:
12
13
ce .c.
13
14
GROUND:
FACTS SUPPORTING GROUND:.
14
15
'
il
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15 .16
WHEREFORE, APPLICANT PRAYS THAT THE C.OURT GRANT APPLICANT
RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.
VERIFICATION
This application must be verified or it will be dismissed for non-compliance. For
verification purposes, an applicant is a person filing the application on his or her own behalf. A
petitioner is a person fiiing the application on behalf of an applicant, for example, an applicant's
attorney. An inmate is a person who is in custody.
The inmate applicant must sign either the "Oath Before a Notary Public" before a
notary public or the "Inmate's Declaration" without a notary public. If the i:rimate is represented
by a licensed attorney, the attorney may sign the "Oath B~fore a Notary Public" as petitioner and
then complete "Petitioner's Information." A non-inmate applicant must sign the "Oath Before a
Notary Public" before a notary public unless he is represented by a licensed attorney, in which
case the attorney may sign the verification as petitioner.
A non-inmate non-attorney petitioner must sign the "Oath Before a Notary Public"
before a notary public and must also complete "Petitioner's Information." An inmate petitioner
must sign either the "Oath Before a Notary Public" before a notary· public or the "Inmate's
a
Declaration" without notary public and must also· complete the appropriate ''Petitioner's
Information."
OATH BEFORE A NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF Walker
-------
Kenneth Nash . · , being duly sworn, under oath says: "I am
the applicant /~titio:ii.¢(circle one) in this action and know the contents of the above
a
application for writ of habeas corpus and, according to my beiief, the facts stated in the ·
application are true."
Lo4>
SUBSCRJBED AND SWORN TO BEFORE ME THIS~ DAY OF August , 2014
.4~!:.~~!':.:.\
~~y...A:;_···~
\~.~··. ~ . .{J
\
LISA MARIE ~OSS
Notary Pu•hc
STATE OF TEXAS
d;~iYhA~dlliro
Signature of Notary Public
'··~~:!i~.~··· My Comm. Exp. May 20, 2017
16
17
PETITIONER'S INFORMA TJON
Petitioner's printed name:_K_e_nn_e_th_N_a_sh_ _ _ _ _ _ _ _ __
State bar number, if applicable: _1_4_8_11_0_3_0_ _ _ _ _ _ _ __
Address: State Counsel for Offenders
P.O. Box 4005
Huntsville, TX 77342
Telephone: (936) 437-5291
Fax: (936) 437-5279
INMATE'S DECLARATION
. .
I, - - - - - - - - - : - - - - - - - ' am the applicant/ petitioner (circle m~e) and
being presently incarcerated in _ _ _ _ _ _ _ _ _ _ _ _ _· _, declare urider penalty of
perjury that, according to my belief, the facts stated in the above application are true and correct.
Signed on---.,..-------' 20__·_.
Signature of Applicant I Petitioner (circle one)
17
18
PETITIONER'S INFORMATION
.. , . d Kenneth Nash
Pettt10ner s pnnte name: -----'-·- - - - - - - - - - ' - - - -
. Address: State Counsel for Offenders
P.O. Box 4005
HUn.tsville, TX 77342
(936) 437-5291
T eep
I h one:-----~--------------
Fax: (936) 437-5279
'Z-0
Signed on August yf ,20~.
. Signature ofPetitioner .
:I
I
18
19
ce FILED
TH9.~',~;f,{Nr~8fi~~RK
AUG 25 201~
Case No. - - - - - - - - - - - - - - - - - - = T I M E Dlf_t0
BY ~ . DEPUlY .
Ex parte In the 213th Judicial
District Court of
Rodney Elnesto Smiley, Tarrant County, Texas
Applicant
Memorandum in Support of
Application for a Writ of Habeas Corpus
Pursuant to Rule 73.1 (c), Rules of Appellate Procedure, Rodney Elnesto
Smiley (hereinafter "Applicant"), files this memorandum in support of his
application for a writ of habeas corpus, as follows:
Facts
On November 28, 1994, Applicant was convicted of the offense of Theft of
Property and sentenced to 25 years' confinement in the TDCJ-ID. See Exhibit A. 1
On August 30, 2001, Applicant was released from custody on parole supervision.
See Exhibit B-4. On October 26, 2006, and while on parole supervision, Applicant
was convicted of the offense of Injury to a Child and sentenced to 10 years'
confinement in the TDCJ-ID. See Exhibit C. On November 8, 2006, the Board of
Pardons and Paroles (BPP) revoked Applicant's parole. See Exhibit B-3. On
December 7, 2006, the TDCJ determined Applicant's mandatory-supervision
1
All references to exhibits herein are to those exhibits attached to the application for a writ of
habeas corpus.
20
ce .•
(.- .
release date on his old sentence as April 8, 2014, and his discretionary mandatory-
supervision release date on his new sentence as September 21, 2010. See Exhibit
D. Subsequently, Applicant was promoted in time-earning status, and his
mandatory-supervision release date on his old sentence was advanced to May 13,
2013. See Exhibit E-1. On January 14, 2013, the TDCJ notified Applicant that he
would be reviewed for discretionary mandatory-supervision release. See Exhibit F
and B-1. On April10, 2013, a parole panel of the BPP issued its decision to deny
discretionary mandatory-supervision release (DMS). See Exhibits G and B-1. The
TDCJ re-established Applicant's discretionary mandatory-supervision release date
on his new sentence as February 8, 2016. See Exhibit E-1.
Issues
1. Did the Texas Department of Criminal Justice and the Board ofPardons
and Paroles violate Applicant's right of due process because the TDCJ's notice
was given, and the BPP's vote was taken, more than 2 years after Applicant
became eligible for .discretionary mandatory-supervision release on his new
sentence?
2. Did the Texas Department of Criminal Justice and theBoard ofPardons
I
I
i and Paroles violate Applicant's right of due course because the TDCJ' s notice was
given, and the BPP's vote was taken, more than 2 years after Applicant became
. eligible for discretionary mandatory-supervision release on his new sentence?
2 21
Argument
As a preliminary matter, habeas-corpus claims alleging illegal confinement
arising after a felony conviction, but not contesting the validity of the judgments,
may be raised under Art. 11.07, Code of Criminal Procedure. Ex parte Geiken, 28
S.W.3d 553, 556 (Tex. Crim. App. 2000).
An inmate has a constitutional due-process right to 30 days' advance notice
. of the specific month.and year in which he will be reviewed for release on
mandatory supervision so that he has sufficient opportunity to submit materials on
his behalf. Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004) (holding
that notice to an inmate that he will be reviewed for mandatory-supervision release
at some unspecified time before his projected release date does not constitute
timely notice consistent with due process)? See also Ex parte Shook, 59 S.W.3d
174 (Tex. Crim. App. 2001); and Ex parte Barry, 109 S.W.3d 510 (Tex. Crim.
App. 2003). An inmate, however, may not be released on discretionary mandatory
supervision if a parole panel determines that: ( 1) his accrued good conduct time is
not an accurate reflection of his potential for rehabilitation; and (2) his release
would endanger the public. Section 508.149(b), Government Code.
/
[T]he onus is on a parole panel to invoke the review process and make
its findings, not on the eligible inmate to request a review. Without a
2
The Court of Criminal Appeals has interpreted the due-course-of-law provision to provide the
same procedural rights and protections as its federal analog. Fleming v. State, 341 S.W.3d 415,
416 (Tex. Crim. App. 2011) (Keasler, J., concurring).
3 22
ce
parole panel's two statutory findings, made only after timely due
process notice to the inmate giving him an opportunity to submit
materials, the Texas Department of Criminal Justice-CID must release
an eligible inmate to mandatory supervision.
Ex parte Retzlaff, 135 S.W.3d at 51. Accord Ex parte Hill, 208 S.W.3d 462, 464
(Tex. Crim. App. 2006).
As stated above, the TDCJ's notice and the BPP's vote (to deny mandatory-
supervision release) occurred more than 2 years after Applicant's original
discretionary mandatory-supervision release date of September 21, 2010; therefore,
mandatory-supervision review process was untimely. Hence, Applicant is entitled
to immediate release on mandatory supervision. 3
Prayer
Wherefore, Applicant prays that the Court of Criminal Appeals grant his
application for a writ of habeas corpus and order the Texas Department of Criminal
Justice and the Board of Pardons and Paroles to immediately release him on
mandatory supervision from the sentence imposed in Cause No. 1011284D for the
felony offense of Injury to a Child.
3
Applicant's case is distinguishable from Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App.
2008) ~herein the Court of Crim.inal Appeals resolved the ."complex problem" involying a
sentence ineligible for mandatory-supervision release stacked upon a sentence eligible for
mandatory-supervision release.. In contrast, Applicant's old sentences and his new sentence are
all eligible for mandatory-supervision release.·
4 23
'I
ce
Respectfully submitted,
State Counsel for Offenders
Attorney for Applicant
/~,il~~
Kenneth Nash ·
Texas BarNo. 14811030
P. 0. Box 4005
Huntsville, TX 77342
Telephone no. 936-437-5291
Facsimile no. 936-437-5279
E-:-mail address: ken.nash@tdcj.texas.gov
Certificate of Compliance
In compliance with Rule 73.1(f), Rules of Appellate Procedure, I certify that
the foregoing computer-generated Memorandum in Support ofApplication for a
Writ ofHabeas Corpus is comprised of 83 7 words.
Kenneth Nash
Certificate of Service
I certify that a true and correct copy of the foregoing Memorandum in
Support ofApplication for a Writ ofHabeas Corpus was served upon opposing
counsel noted below by first-class United States mail on August~, 2014:
Joe Shannon, Jr.
Tarrant County Criminal District Attorney
Tim Curry Criminal Justice Center
401 West Belknap
Fort Worth, TX 76196
Kenneth Nash
5 24
-····
(F\EV .. 10/·16/91)
TH2 STATE OF TEXAS
F-9402594-PU ce
IN THE 291ST JUDICIAL DISTRICT
\.JS. COURT OF
RODNEY ELNESTO SMILEY DALLAS COUNTY, TEXAS
/
11
~UDGI_'1ENT ON PLEA OF GUILTY OR NOLO CONTENDERE BEFORE COURT
~
..., WAIVER OF JURY TRIAL .
JULY TERM 7 A.D.? 1994
JUDGE PRESIDING: GERRY MEIER DATE OF JUDGMENT: 11/28/94
ATTORNEY ATTORNEY
FOR STATE: B COX FOR DEFENDANT: RICK MAGNIS
OFFENSE
CONVICTED OF: AHEFT OF PROPERTY OF THE VALUE OF $750 OR MORE, BUT LESS
THAN $20~000
i
DEGREE: THIRD DATE OFFENSE CO~TTED: 02/08/94
\ --------------------------------------------------------------------------------------
CHARGING
I NSTRUI'1ENT: INDICTMENT PLEA: GUILTY
TERI'1S OF PLEA
BARGAIN AS MA 'i BE SHOWN ABOVE.
AND WHEN SHOWN ABOVE THAT THERE WAS A PLEA BARGAIN AGREEMENT, THE
}EFENDANT WAS INFORMED AS TO WHETHER THE COURT WOULD . FOLLOW OR HE.JECT SUCH
~GREEMENT ~~ IF THE COURT REJECTED SUCH AGF£EMENT THE DEFENDANT WAS GIVEN AN
]PPORTUNITY TO l•JITHDRAW HIS PLEA PRIOR TO ANY FINDING ON THE PLEA-
WHEN IT IS SHOWN ABOVE THAT RESTITUTION HAS BEEN ORDERED BUT 7 "THE
:OURT DETERMINES THAT THE INCLUSION OF THE VICTIM/S NAME AND ADDRESS lN THE
JUDGMENT IS NOT IN THE BEST INTEREST OF THE VICTIM THE PERSON OR AGENCY
JHOSE NAME AND ADDRESS IS SET OUT IN THIS JUDGEMENT WILL ACCEPT AND FORWARD THE
~ESTITUTION PAYMENTS TO THE VICTIM.
AND WHEN IT IS SHOWN BELOW THAT PAYMENT OF THE COSTS OF LEGAL
)ERVICES PROVIDED TO THE T~E~~IANT IN THIS CAUSE HAS BEEN ORDEREia, "THE COURT
~INDS THAT THE DEFENDANT HAS THE FINANCIAL RESOURCES TO ENABLE.THE DEFENDANT TO
JFFSET SAID COSTS IN THE AMOUNT ORDERED. .
THEREUPON THE SAID DEFENDANT WAS AS~ED BY THE COURT WHETHER HE HAD
;NYTHING TO SAY WHY SAID SENTENCE SHOULD NOT BE PRONOUNCED AGAINST HIM.:z..._AND HE
tNSWERED NOTHING IN BAR THEREOF~ AND IT APPEARING TO THE COURT THAT Dt.rENDANT
S MENTALLY COMPETENT AND UNDERbTANDING OF THE PROCEEDINGS.
· . IT IS THEREFORE CONSIDERED AND ORDERED BY THE· COURT IN THE
'RESa-tCE Of DEFENflANT, AND tHS ATTORNEY, THAT SAID .JUDGMENT As· SET FORtH ABDVE.7-
S HEREBY IN ALL THINGS APPROVED AND CONFIRNED, AND THAT SAID DEFENDANT Bt::.
,IJJUDGED GUILTY OF THE OFFENSE AS SHOWN ABOVE, AND THAT SAID DEFENDANT BE
'UN I SHED IN ACCOF<:DANCE WITH THE PUNISHMENT SET FORTH ABOVE~ AND DEFENDANT IS
ENTENCED TO A TERM OF IMPRISONMENT OR FINE OR BOTH.:z. AS St.T FORTH ABOVE.l.. AND
EFENDANT SHALL BE DELIVERED BY THE SHERIFF TO THe. DIRECTOR OF THE INbTITU-
IONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, OR OTHER
ERSON LEGALLY AUTHORIZED TO RECEIVE SUCH CONVICTS FOR THE PUNISHMENT ASSESSED
EREIN, AND SAID DEFENDANT SHALL BE CONFINED FOR THE ABOVE-NAMED TERM IN ACCOR-
26
)ANCE WiTH THE PROVISION --~.AW GOVERNING SUCH PUNT -(1. •TS. IT IS FU~
JR[tERED THAT THE DEFENDA't-....\ 1 THE FINE .COURT COST.-, TS AND EXPENSES
_EGAL SERVICE PROVIDED BY ·,~E COURT APP6INTED ATTORNE)· . ~HIS CAUSE, 'IF ·~
~NH RESTITUTION DR REPARATION. AS SET FORTH HEREIN. . ·
DEFENDANT IS HEREBY ORDERED REMANDED TO JAIL UNTIL SAID SHERIFF C
JBEY THE DIRECTIONS OF THIS JUDGMENT.
FOLLOWING THE DISPOSITION OF THIS CAUSE THE DEFENDANT~s FINGERPRIN
lAS, IN OPEN CDURTt PLACED UPON A CERTIFICATE OF FINGERPRINT. SAID CERTIFICAT~
S ATTACHED HERE 0 AND IS INCOHPORATED BY REFERENCE AS A PART OF THIS
IUDGMENT.
COURT COSTS IN THE AMOUNT OF $124.50
27
JUDGMENT
.(.
CcrlTIFICATE OF THUMBPRINT
CAUSE NO. rq~-- oa set tt PLL
THE STATE OF TEXAS IN THE -""Z'-1.0.._/'J_·f_ _ __
vs. DISTRICT COURT ~
~rY1'u0/r QDd oG---/ &_ DALLAS COUNTY, TEXAS
Right
Thumb* Defendant•s --~~~---- hand
THIS IS TO CERTIFY THAT THE FINGERPRINTS ABOVE ARE THE ABOVE.,:
NAMED DEFENDANT• S FINGERPRINTS TAKEN AT THE TIME OF DISPOSITION
OF TllE ABOVE STYLED AND NUMBERED CAUSE.
DONE IN COURT THIS d_L DAY OF ::...J.-1'---<>-1/-=-------' 191>=__. ~ /0''2._11-L
~ i:t.~~ BALF/DEPUTY SHERIFF
J-S1 .
*Indicate here if print other than defendant's right thumbprint
is placed in box:
left thumbpri~t left/right index finger
other,
28
. ·- . - - " - -" --
reRK···s. CERTIFICATE ce
THE STATE OF TEXAS:
COUNTY OF DALLAS
I, BILL LONG, CLERK OF THE DISTRICT COURTS WITHIN AND FOR
THE STA.TE AND COUNTY AFOF:ESAID, DO HEREBY ·cERTIFY THAT THE "ABOVE
AND FOREGOING IS A TRUE AND CORRECT COPY OF .JUDGMENT AND
IMPOSITION OF SENTENCE IN CAUSE NO. F-9402594-PU ENTITLED THE
STATE OF TEXAS VS. RODNEY ELNESTO SMILEY
AS THE SAt1E APPEARS ON RECORD IN VOL. 1 98 PAGE 1B7
NOW ON FILE IN 1'1Y OFFICE.
GIVEN UNDER NY HAND AND SEAL OF OFFICE IN DALLAS COUNTY,
TEXAS, THIS 29T!-:! !:JAY OF NOVEMBE.,t::~, 1994
BILL LONG
DISTRICT CLERK
DALLAS INTY,
\.
I ·BY:
I
29
- - _- - - - - - - ·- - - - - - - -·-·- ·_- . . . . . .- .- - - - - - - ( - - - - :·- - - - - .- - - . . _ _ _. _________________-----c.-
3) tdc01ftp·- PASSPORT • Tuesday, -&x ---------- - :- -· - :- - - - - - - - - - - ·
13, 2014, 10:21:58 AM
:SSUKA25 TEXAS DEPARTMENT OF CRIMINAL JUSTICE 10:21:52
CLEMENCY AND PAROLE SYSTEM 05/13/14
MINUTES BROWSE SCREEN
'DCJID NUMBER: 00693698 SID NUMBER: 03361205 PIA NUMBER: 000000
~pp NUMBER: NAME: SMILEY,RODNEY ELNESTO
:URRENT STATUS: CURRENTLY IN ID
:EL ACTN DATE PROCESS ACTN TYPE OF ACTION
02-19·-2014 CURRENTLY AN INMATE STLTR TP DATE ST~TUS LTR
02-18-2014 CURRENTLY AN INMATE DMS RECORD HAS NO ACTION TYPE
12-03-2013 REVIEW PROCESS PIMR RECORD HAS NO ACTION TYPE
' 12-02-2013 CURRENTLY AN INMATE NDMS NOTICE OF DMS REVIEW
04-11-2013 CURRENTLY AN INMATE . STLTR TP DATE STATUS LTR
04-10-2013 CURRENTLY AN INMATE DMS RECORD HAS. NO ACTION TYPE .
01-14-2013 REVIEW PROCESS NDMS NOTICE OF DMS REVIEW
12-18-2012 REVIEW PROCESS PIMR RECORD HAS NO ACTION TYPE
12-13-2012 CURRENTLY AN INMATE STLTR TP DATE STATUS LTR
12-12-2012 CURRENTLY AN INMATE SA RECORD HAS NO ACTION TYPE
11-13-2012 REVIEW PR0CESS PIMR RECO~D HAS NO ACTION :TYPE
06-05-2012 REVIEW PROCESS NTO BOARD VOTE
06-05-2012 REVIEW PROCESS CASEP MONTHLY CASE PULL
. PFl=HELP PF2=BOARD ACTIONS MENU PF5=DETAIL PF3=CAPS MENU
PF6=REFRESH PF7=SCROLL BACK PF8=SCROLL FORWARD
PF10=CROSS REF 'PF12=TDCJ MENU. CLEAR=EXIT
. HERE ARE MORE M~NUTES RECORDS TO.BE D~SPLAYED
I
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6-1 30
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CLEMENCY AND PAROLE SYSTEM 05/13/14
MINUTBS BROWSE SCREEN
iDCJID NUMBER: 00693698 SID NUMBER: 03361205 PIA NUMBER: 000000
ipp NUMBER: NAME: ·SMILEY, RODNEY ELNESTO
,JRRENT STATUS: CURRENTLY IN ID
il SL ACTN DATE PROCESS ACTN TYPE OF ACTION
06-05-2012 REVIEW PROCESS GASEP MONTHLY CASE PULL
11-03-2011 CURRENTLY AN INMATE STLTR TP DATE STATUS LTR
11-02-2011 CURRENTLY AN INMATE NR RECORD HAS NO ACTION TYPE
06-07-2011 REVIEW PROCESS NTO BOARD VOTE
06-07-2011 REVIEW PROCESS CASEP MONTHLY CASE PULL
10-08-2010 CURRENTLY.AN INMATE $TLTR TP DATE srATUS LTR
10-07-2010 CURRENTLY AN INMATE NR RECORD HAS NO ACTION TYPE
i
I -
05-04-2010 REVIEW PROCESS NTO BOARD VOTE
05-04-2010 REVIEW PROCESS CASEP MONTHLY CASE PULL
09-15-2009 CURRENTLY AN INMATE STLTR TP DATE STATUS LTR
09-14-2009 CURRENTL¥ AN IN~illTE -NR RECQRD HAS NO ACTION J.l..t".C.. fT1'\TT"'\~
04-08-2009 REVIEW PROCESS NTO BOARD VOTE
,! 04-07-2009 REVIEW PROCESS CASEP MONTHLY CASE PULL
1
)F1=HELP. PF2=BOARD ACTIONS MENU PF5=DETAIL PF3=CAPS MENU
>F6=REFRESH PF7=SCROLL BACK PF8=SCROLL FORWARD
>F10=CROSS REF · PF12=TDCJ MEN'Q CLEAR=EXIT
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I
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13·1 31
!~-~!~:_f_tp -=:-p~~~PO~T ~~,~~~~~;~EN-;~; ~~~:~::~ yJ:lc:~~ 2_014 ~- 10~~~~~~ O
~~
CLEMENCY AND PAROLE SYSTEM 05/13/14
MINUJES BROWSE SCREEN.
DCJID NUMBER: 00693698 SID NUMBER: 03361205 PIA NUMBER: 000000
PP NUMBER: NAME: SMILEY,RODNEY ELNESTO
URRENT STATUS: CURRENTLY IN ID
EL ACTN DATE PROCESS ACTN TYPE OF ACTION
04-~7-2009 REVIEW PROCESS CASEP MONTHLY CASE PULL
09-05-2008 CURRENTLY AN INMATE STLTR TP DATE STATUS LTR
09-04-2008 CURRENTLY AN INMATE NR RECORD HAS NO ACTION TYPE
06-04-2008 REVIEW PROCESS NTO BOARD VOTE
06-03-2008 REVIEW PROCESS CASEP MONTHLY CASE PULL
10~11.:...2007 CURRENTL.Y AN INMATE STLTR TP DATE STATUS LTR
10-10-2007 CURRENTLY AN INMATE NR RECORD HAS NO ACTION TYPE
11-21-2006 REVIEW PROCESS NTO BOARD VOTE
11-19-2006 REVIEW PROCESS CASEP CALCULATE STATUS
11-17-2006 CURRENTLY AN INMATE STAFF PAROLE VIOLATOR
11-08-2006 REYOCAbiON . PROC REYOKE N~W CONVICTION TO.~EX
11-08-2006 REVOCATION APP REVOKE NEW CONVICTION TO TEX
- 03-02-2006 ARREST WARRANT REC PRE REVOCATION
)F1=HELP PF2=BOARD ACTIONS MENU PF5=DETAIL PF3=CAPS MENU
)F6=REFRESH PF7=SCROLL BACK PF8=SCROLL FORWARD
'F10=CROSS F£F PF12=TDCJ ME~U · CLEAR=EXIT
[ERE ARE MORE MINU}:'ES RECORDS TO BE VIEWED
EXHIBIT
e-3 32
l_ ___!_c:Ic O_} ~~E~._-=- --~ ~:s P ~-~~ ------(· ··---- -·: ... ____________ ------~u e_s_9.~¥.!__, o_
__!.: ~-'-- _2 0 1_4_,__ ~ ~--~~~Q~_ -~-~-
. . ( . .
SSUKA25 TEXAS DEPARTMENT OF CRIMINAL JD~ ICE 10:22:02
CLEMENCY AND PAROLE SYSTEM 05/13/14
MINUTES BROWSE SCREEN
DCJID NUMBER: 00693698 SID NUMBER: 03361205 PIA NUMBER: 000000
PP NUMBER: NAME: SMILEY,RODNEY ELNESTO
ORRENT STATUS: CURRENTLY IN ID
EL ACTN DATE PROCESS ACTN TYPE OF ACTION
03-02-2006 ARREST .WARRANT REC PRE REVOCATION
11-21-2003 CURRENTLY A PAROLEE OR MS NOTE TP DATE STATUS LTR
08-08-2003 CURRENTLY A PAROLEE OR MS STAFF CHANGE PROCESS TYPE-GENERATE
08-07-2003 ARREST WARRANT WDWA PRE REVOCATION
07-31-2003 REVOCATION HEARING DENY CONTINUE SUPERVISION
06-25-2003 ARREST .WARRANT REC PRE REVOCATION
09-21-2001 CURRENTLY A PAROLEE OR MS NCR INSTATE
09-18-2001 CURRENTLY A PAROLEE OR MS PARL INSTATE
08-30-2001 REVIEW PROCESS PROC INSTATE
07-03-2001 REVIEW PROCESS NCR NCR
81-12-2001 REVIEW PROCESS STLTR TP
. . DA~E STATUS LTR
01-11-2001 REVIEW PROCESS FI-6R BOARD FI
- 09-06-2000 REVIEW PROCESS NTO BOARD VOTE
)F1=HELP PF2=BOARD ACTIONS MENU PF5=DETAIL PF3=CAPS MENU
)F6=REFRESH PF7=SCROLL BACK PFB=SCROLL FORWARD
)F1 O=CROSS. REF PF12=TDCJ M_ENU CLEAR=EXIT
!ERE ARE MO~E MINUTES RECORDS TO BE VIEWED
i
\l
EXHIBIT
B-'1 33
:
~~~~~:f_tE PAS~P~R:r_;;&~~~:;;~:;-~~-CR::::~:yXI~!~-' -~~g~4~ 10 ~~~~~~~7
CLEMENCY AND PAROLE SYSTEM 05/13/14
MINUTES BROWSE SCR~EN
~CJID NUMBER: 00693698 SID NUMBER: 03361205 PIA NUMBER: 000000
PP NUMBER: NAME: SMILEY,RODNEY ELNESTO
JRRENT STATUS: CURRENTLY IN ID
~L ACTN DATE PROCESS ACTN TYPE OF ACTION
09-06-2000 REVIEW PROCESS NTO BOARD VOTE
09-05-2000 REVIEW PROCESS CASEP MONTHLY CASE PULL
11-24~1999 CURRENTLY AN INMATE STLTR TP DATE STATUS LTR
11-23-1999 CURRENTLY AN INMATE NR RECORD HAS NO ACTION TYPE
09-08-1999 REVIEW PROCESS NTO BOARD VOTE
09-07-1999 REVIEW PROCESS CASEP MONTH~Y CASE PULL
11-12-1998 CURRENTLY AN INMATE STLTR TP DATE STATUS LTR
11-10-1998 CURRENTLY AN INMATE NR RECORD HAS NO ACTION TYPE
07-09-1998 REVIEW PROCESS NTO BOARD VOTE
07-08-1998 REVIEW PROCESS NTO BOARD VOTE
· 07-07~1998 .REVIEW PROCESS CASEP MONTHLY CASE PULL
I -
05-14-1996 CURRENTLY AN INMATE STLTR TP DATE STATUS LTR
- 05-13-1996 CURRENTLY AN INMATE NR RECORD HAS NO ACTION TYPE
'F1=HELP PF2=BOARD ACTIONS MENU PF5=DETAIL PF3=CAPS MENU
'F6=REFRESH PF7=SCROLL BACK PF8=SCROLL FORWARD
'F10=CROSS REF PF12=TDCJ ~ENU CL~AR=EXIT
:ERE ARE MORE MINUTES RECORDS TO BE VIEWED
,I
'\
EXHIBIT
B·S 34
ACTN
NR
NTO
CASEP
STAFF
APP
PROC
OR MS NOTE
OR MS NA
OR l'1S PARL
PROC
EXHIBIT
B-t. 35
L.~-~c0·1 ~-~E.:.~___ ?_~-?~~~~~ _----(·----·· -·····--·-------------------_!-~~~-9.-~Y!...~~-~~-'_2 01~-'----~-~-~-?.?~~~M____
'· . . . ( . . .
SSUKA25 TEXAS DEPARTMENT OF CRIMINAL Ju;:, ICE 10:22:07
CLEMENCY AND PAROLE SYSTEM 05/13/14
.MINUTES BROWSE SCREEN
DCJID NUMBER: 00693698 SID NUMBER: 03361205 PIA NUMBER: 000000
PP NUMBER: NAME: SMILEY,RODNEY ELNESTO
JRRENT STATUS: CURRENTLY IN ID
;L ACTN DATE PROCESS ACTN TYPE OF ACTION
09-04-1991 REVIEW PROCESS NTO BOA~D VOTE
09-04-1991 REVIEifiJ PROCESS CASEP MONTHLY CASE PULL
08-28-1991 CURRENTLY AN INMATE STAFF PAROLE VIOLATOR-NEW TDC NUMB
08-22-1991 REVOCATION PROC REVOKE NEW CONVICTION TO TEX
10-09-1990 CURRENTLY A PAROLEE OR MS NOTE CHANGE PROCESS TYPE-GENERATE
10-09-1990 REVOCATION HEARING WDFI 000 . - TYPE ACTION NOT. FOUND
10-08-1990 REVOCATION HEARING ABSC RETURNED FROM ABSCONDER TO A
04-02-1990 REVOCATION HEARING ABSC DECLARED ABSCONDER
04-02-1990 REVOCATION HEARING APP 000 - TYPE ACTION NOT FOUND
04-02-1990 REVOCATION HEARING REC 000 - TYPE ACTION NOT FOUND
02-20-1990 CURRENTLY
. A PAROLE~
...
OR MS NA PAROLE
.. REVIEW
01-09-1990 CURRENTLY A PAROLEE OR MS NA PAROLE REVIEW
- 04-20-1989 CURRENTLY A PAROLEE OR MS PARL INSTATE
'F1=HELP PF2=BOARD ACTIONS MENU PF5=DETAIL PF3=CAPS MENU
'F6=REFRESH PF7=SCROLL BACK PF8=SCROLL FORWARD
'F1 O=CROSS REF PF12=TDCJ'MENU CLEAR=EXIT
!ERE ARE MORE MINUTES RECORDS TO BE VIEWED
EXHIBIT
B.. 7 36
_
~~:~~t.L.~ !'ASS~_(lR'f_;~r.'~~~~;:~~- OF-~~~~::!:~£~~!3~--2·-~~1?~~~ :~~~-!!}-~
CLEMENCY AND PAROLE SYSTEM 05/13/14 ·
MINUTES BROWSE SCREEN
DCJID NUMBER: 00693698 SID NUMBER: 03361205 PIA NUMBER:
PP NUMBER: NAME: SMILEY,RODNEY ELNESTO
ORRENT STATUS:
EL ACTN DATE PROCESS ACTN TYPE OF ACTION
04-20-1989 CU.RRENTLY A PAROLEE OR MS PARL INSTATE
04-19-1989 REVIEW PROCESS PROC INSTATE
11-03-1988 REVIEW PROCESS APP INSTATE
11-03-1988 REVIEW PROCESS REC INSTATE
11-02-1988 REVIEW PROCESS FI-2 000 - TYPE ACTION NOT FOUND
11-02-1988 REVIEW PROCESS NTO COMMISSIONER FI
10-13-1988 REVIEW PROCESS CASEP MONTHLY CASE PULL
10-06-1988 CURRENTLY AN INMATE NOTE CALCULATE STATUS-GENERATED
I 'F1=HELP PF2=BOARD ACTIONS MENU PF5=DETAIL PF3=CAPS MENU
'F6=REFRESH PF7=SCROLL BACK PF8=SCROLL FORWARD
'F1 O=.CROSS REF PF12=T,DCJ MENU CLEAR=EXIT
IE LAST MINUTE RECORDS ARE D~SPLAYED
EXHIBIT
13-i 37
ce.
/ASE NO. 1011284D
THE STATE OF TEXAS § IN THE 213TH DISTRICT
VS. § COURT OF
RODNEY ELNESTO SMILEY § TARRANT COUNTY, TEXAS
JUDGMENT ON PLEA OF GUlLTY OR NOLO CONTENDERE BEFORE COURT
. W AlVER OF JURY TRIAL
Judge Presiding HON. ROBERT K. GILL Date of Judgment OCTOBER 26, 2006
Attorney for State Assistant District
District Attorney TIM CURRY Attorney SHANE LEWIS
I
Attorney for Defendant JOETTA KEENE Charging Instrument: INDICTMENT
Offense Date /Convicted Offense
AUGUST I, 20 I INJURY TO A CHILD WITH INTENT70 AUSE BODILY INJURY
~;· • Count • Plea
3RD ELEVEN GUILTY
Findings on
Deadly Weapon NONE
Tenns of Plea Bargain 10 YRS IDTDCJ, WAIVE COUNTS ONE THROUGH TEN
Plea to Enhancement
Paragraph(s) NONE
Plea to Habitual
Paragraph(s) HABITUAL OFFENDER NOTICE- WAIVED BEFORE PLEA
Findings· on Enhancement/
Habitual Paragraph{s) j NONE
Date Sentence hnposed OCTOBER 26, 2006 Date to Commence : OCTOBER 26, 2006
Punishment : COUNT ELEVEN -TEN (10) YEARS
Place of Confinanen/: INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE
Time Credited 260DAYS Court Costs $253.00
Reparation $1,000.00 Restitution NONE
RECOMMEND THAT APPOINTED COUNSEL FEES UNDER TEX. CODE OF CRlM.
PROC., ANN., ARTICLE 26.05 OF $1,000.00 BE PAYABLE TO AND THROUGH THE
DISTRlCT CLERK'S OFFICE OF TARRANT COUNTY, TEXAS, AS CONDIDON OF PAROLE.
On this day, set forth above, this cause came for trial and came the State of Texas by its above-named attorney, and the
Defendant appeared in person and by the above-named attorney for the Defendant, or, where a Defendant is not·represented by
counsel, that the Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel; and announced
ready for tri::!, the Defendmt h:1.ving been heretofore :1.rraigned, or having waived arraignment in open court, and having agreed
that the testimony may be stipulated in this· cause and the Defendant, his counsel, and the State's attorney having agreed in writing
in open court to waive a jury in the trial of this cause and to submit this cause to the Court, and the Court having agreed to the
same, the said attorney for the State read the instrument charging the offense as shown or the reading of the charging instrument
having been waived by the Defendant in open court; the Defendant entered the above shown plea thereto; and it appearing to the
Court that the Defendant is mentally competent and the plea is free and voluntary, and the Court having duly admonished the
Defendant as to the consequences of such plea, including the range of punishment attached to the offense and the fact that any
recommendation of the prosecuting attorney as to punishment is not binding on the Court, yet the Defendant persisted in entering
such plea; said plea is by the Court receilled and now entered of record upon the minutes of the Court, is of the opi¢on and so
finds that the said Defendant is guilty of the offense as confessed and set forth above.
And when shown above, that the charging instrument contains enhancement paragraph(s), which wert?;~4waived,
""" "'''~ Dofmdmi lo hm h= ~•kiol p~•lo~ly of my fol=y m off=~ fo1 lho pwpo~ o f " " " - ' 75~ "'"""'
EXHIBIT
IIMmlifliliilfilliii~OOI f
VOLUME PAGE A OF CASE NO. I011284D
e3a
___ .:;. _____ _______
. - -- ... ·-----. --- -· .... :. __________ , --~----:..__ ____.
CID #0267313
59B
JUDGEMENT
CERTIFICATE OF THUMBPRJNT
CAUSE NO 1011284
THE STATE OF TEXAS IN THE CRIMINAL
vs. DISTRICT COURT D213
SMILEY. RODNEY E TARRANT
COUNTY,TEXAS
:.~ ..
Defendant';\( i @';'\. J-: hand
Right .Thumb*
THIS IS TO CERTIFY THAT THE FINGERPRINTS ABOVE ARE THE ABOVE-
NAMED DEFENDANT'S FINGERPRINTS TAKEN FOR THE ABOVE STYLED
AND NUMBERED CAUSE•
. TAKEN ON TIDS dLO DAY OF 0c~JoJo.el2. , ~C) \o
d--D~
JXJ·~
DEPUTY SHERIFF
. .
*Indicate here if print other than defendant's right thumbprints placed in box:
_ __cLeft thumbprint _ _Left/right index finger
- -Other
39
NAME RODNEY ELNESTO SMILEY OFFENSE SEXUAL ASLT CHILD (AGG)
ADDRESS 532 CLAIRE CT DA1E 6/1/2003 Habitual
ARLINGTON TX 76012 · I.P. TERRIKA DYKES .
RACE B SEX M AGE41 DOB 7/12/1964
CASENO. 1011284 DA1EFILED 2113/2006 AGENCY Fort Worth PO
CID NO. 0267313 OFFENSENO. 05154991
COURT 213th District Court
INDICTMENT NO. 1011284 j)
INTIIENAMEANDBY AUTHORITYOFTIIESTA1EOFTEXAS:
THE GRAND JURORS OF TARRANT COUNTY, TEXAS,
duly elected, tried, empaneled, sworn, and charged to inquire of offenses committed in Tarrant County, in the
State of Texas, upon their oaths do present in and to the
372nd DISTRICT COURT
of said County that RODNEY ELNESTO SMIT..EY, hereinafter called Defendant, in the County of Tarrant and
State aforesaid, on or about the 1st day of June 2003, did
THEN AND TiffiRE INTENTIONAILY OR KNOWINGLY CAUSE TilE PENEffi.ATION OF TilE FEMALE
SEXUAL ORGAN OF TERRIKA DYKES, A CHILD YOUNGER TilAN 14 YEARS OF AGE WHO WAS
NOT TiiE SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER INTO HER FEMALE SEXUAL ..
ORGAN,
COUNT TWO: AND IT IS FURTilER PRESENTED IN AND TO SAID COURT TIIAT TilE DEFENDANT
IN TilE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JUNE,
2003, DID THEN AND TIIERE INTENTIONAILY, WITH TilE INJENTTO AROUSE OR GRATIFY THE
SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING 11I.E
FEMALE SEXUAL ORGAN OFTERRIKA DYKES, A CHILD YOUNGER TIIAN 17 YEARS AND NOT
.THE SPOUSE OF TiiE DEFENDANT, . · .
COUNT TiiREE: AND IT IS FURTiiER PRESENTED IN AND TO SAID COURT TIIAT TilE DEFENDANT
· IN TiiE COUNTY OF TARRANT AND·STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JUNE, .
2003, DID THEN AND TiffiRE INTENTIONAILY OR KNOWINGLY CAUSE THE PENEIRATION OF
TilE ANUS OFTERRIKA DYKES, A CHILD YOUNGER TilAN 14 YEARS OF AGE WHO WAS NOT TilE
SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER INTO HER ANUS,
COUNT FOUR: AND IT IS FURTiiER PRESENTED IN AND TO SAID COURTTIIAT TilE DEFENDANT
IN TilE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JUNE,
2003, DID THEN AND TiffiRE INTENTIONALLY, WITH TilE INTENT TO AROUSE OR GRATIFY TilE
SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACI' BY TOUCHING TilE ANUS
OF TERRIKA DYKES, A CHILD YOUNGER THAN 17 YEARS AND NOT 1HE SPOUSE OF THE
DEFENDANT, . .
COUNT FIVE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT TIIAT TilE DEFENDANT
IN TilE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT Tiffi 1ST DAY OF JULY,
2003, DID THEN AND TiffiRE INTENTIONALLY OR KNOWLINGLY CAUSE Tiffi SEXUAL ORGAN OF,
TERR.IKA DYKES, A CHILD YOUNGER TIIAN 14 YEARS OF AGE WHO WAS NOT THE SPOUSE OF
SAID DEFENDANT TO CONTACT TilE SEXUAL ORGAN OF TilE DEFENDANT,
COUNT SIX: ·AND IT IS FURTIIER PRESENTED IN AND TO SAID COURT TIIAT THE DEFENDANT IN
THE COUNTY OFTARRANT AND STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JULY, 2003,
40
NAME RODNEY 'ELNESTO SMILEY
CASE NO. 1011284
ce.
PAGE 2 of 3
DID THEN AND THERE INTENTIONALLY EXPOSE HIS PENIS TO TERRIKA -DYKES, A CHll..D
YOUNGER 1HAN 17 YEARS AND NOT HIS SPOUSE, KNOWING SAID CHlLD WAS PRESENT, WITH
THE INTENT TO AROUSE OR GRATIFY THE SEXUAL DESIRE OF SAID DEFENDANT,
COUNT SEVEN: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT TilE DEFENDANT
INTHECOUNTYOFTARRANT AND STATEAFORESAIDON OR ABOUT THE 1ST DAY OF AUGUST,
2004, DID THEN AND THERE INTENTIONALLY OR KNOWINGLY CAUSE THE PENETRATION OF
THE FEMALE SEXUAL ORGAN OF TERRIKA DYKES, A CHTI...D YOUNGER THAN 14 YEARS OF AGE
WHO WAS NOT THE SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER IN HER FEMALE
SEXUAL ORGAN,
COUNT EIGHT: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 1ST DAY OF AUGUST,
2004, DID THEN AND THERE INTENTIONALLY, WITH THE INTENT TO AROUSE OR GRATIFY THE
SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING THE
FEMALE SEXUAL ORGAN OF TERR1KA DYKES, A CHll..D YOUNGER TIIAN 17 YEARS AND NOT
THE SPOUSE OF THE DEFENDANT,
COUNT NINE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 1ST DAY OF AUGUST,
2004, DID THEN AND TIIERE INTENTIONALLY OR KNOWINGLY CAUSE THE PENETRATION OF
THE ANUS OF TERRIKA DYKES, A CHll.D YOUNGER THAN 14 YEARS OF AGE WHO WAS NOT THE
SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER INTO HER ANUS, ·
COUNT TEN: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THATTIIE DEFENDANT IN
THECOUNTYOFTARRANTANDSTATEAFORESAIDONORABOUTTHE1STDAYOFAUGUST,·
2004, DID TiffiN AND TIIERE INTENTIONALLY, WITH THE INTENT TO AROUSE OR GRATIFY THE
SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING THE ANUS
OF TERRIKA DYKES, A CHll..D YOUNGER THAN 17 YEARS AND NOT THE SPOUSE OF THE
DEFENDANT,
HABITUAL OFFENDER NOTiCE: AND IT IS FUR1HER P.RESENTED TO SAID COURT THATPRIOR TO
THE COMMISSION OF THE OFFENSE OR OFFENSES SEf OUT ABOVE, THE DEFENDANT WAS
FINALLY CONVICTED OF THE FELONY OFFENSE OF BURGLARY OF A BUll.DING, IN-THE 297TH
CRIMINAL DISTRICT COURT OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 0341914D, ON
AUGUST 29, 1988, AND, THAT PRIOR TO THE COMMISSION OF THE OFFENSE OR OFFENSES FOR
· WHICH THE DEFENDANT WAS CONVICIED AS SEf OUT ABOVE, THE DEFENDANT WAS FINALLY
CONVICTED OF THE FELONY OFFENSE OF BURGLARY OF HABITATION, IN THE 291ST nJDICIAL
. · DISTRICT COURT OF DAlLAS COUNTY, TEXAS, IN CAUSE NUMBER F94-23105-U, ON MAY 9, 1994,
too~ ~(e~J; A11J.. :I;-\- "I'$ n,,.~ Pcev..,f,J_ "1;., lr~Vcl, To '$.o..J
Co.,rt 7/tA.,f
#h.c. ~~ '"LI -n-.e. ~"-\y o~ -r"PI'IMI-r. A~ ~4-...k Af.~e3~J o~ .or
A~ ..+ ~ l$\- ·PI~d:,. b~ ~"' ~+1 "'Zoo4_, ~,c,t -t1t~~J "'-~~ ~ · w.k~'J'
@'""""-'t'tf'. ~c -;;.~.s:{ JST. CLERK
TARRANT COUN I T, TEXAS
August 20, 2014
AUG 2~ 2014
Tarrant County District Clerk's Office
401 W. Belknap
Ft. Worth, TX 76196
TIME
BY
Jilifl
_____ DEPUTY
Re: Tlte State of Texas v. RodneyElnesto Smiley
Cause No. 1011284D in tlte 213tlt Judicial District Court of Tarrant County, Texas
Dear Sir or Madam:
Enclosed, please find original and two copies of Mr. Smiley's Art. 11.07 Application for
Writ of Habeas Corpus with reference to Cause No. 1011284D. ·
Please forward a file stamped copy of this application to the Tarrant County District
Attorney's Office as provided in Art. 11.07, Sec. 3. Please return a file-stamped copy of the
application to the undersigned in the enclosed stamped envelope.
Thank you for your courtesies regarding this matter.
Sincerely,
Is/ Kenneth Nash
Kenneth Nash
Appellate Section Chief
KNA/lmm
Enclosures
cc: Rodney Elnuesto Smiley
TDCJ# 00693698
Estes Unit
1100 Highway 1807
Venus, TX 76084
48
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Tarrant County District Clerk's Office
'·40!W. Belknap· -- :·- ·{
Ft. Worth, TX 76196
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UNITED STLITES POSTLILSERVICE
Visit us at usps.com
Label107, January 2008
Writ Number: C-213-010293-1011284-B
213TH DISTRICT COURT
OF
TARRANT COUNTY, TEXAS
EX PARTE
RODNEY ELNESTO SMILEY
WAIVER OF SERVICE
Now comes Joe Shannon, Jr., Criminal District Attorney of Tarrant County, Texas and hereby
acknowledges that he has this date, August 25, 2014, received from the District Clerk a copy of the
petition for Writ of Habeas Corpus filed in the above entitled and numbered cause and he hereby
waives delivery to him of said petition by certified mail.
It is further acknowledged that the answer to this petition, if any, will be filed within fifteen (15) days
from this date.
JOE SHANNON, JR.
CRIMINAL DISTRICT ATTORNEY
TARRANTCOUNTY, TEXAS
FILED
THOMAS A. WILDER, DIST. CLERK
TARRANTCOUNTY,TEXAS
August 25, 2014
·~
2
:24
Tm~e----~~~---------
By -----"'!.....:....l£<'--"------'' Deputy
52
FILED
THOMAS A WILDER, DIST. CLERK
TARRANT COUNTY, TEXAS
SEP 0.~14
C-213-010293-1011284-B
TIME
BY
~
EX PARTE § IN THE 213th JUDICIAL DEPUTY
§
§ DISTRICT COURT OF
§
RODNEY ELNESTO SMILEY § TARRANT COUNTY, TEXAS
STATE'S RESPONSE TO APPLICATION FOR WRIT OF HABEAS
CORPUS
TO THE HONORABLE JUDGE OF SAID COURT:
C01\1ES NOW THE STATE OF TEXAS, by and through her Tarrant County
Criminal District Attorney, and in opposition of the Application for Writ of Habeas
Corpus respectfully states the following to the Court based on its information and
belief:
I. HISTORY OF THE CASE
The applicant, RODNEY ELNESTO SMILEY ("Applicant"), pled guilty,
pursuant to a plea agreement, to the third degree felony offense of injury to a child
with intent to cause bodily injury. See Judgment, No. 1011284D. In accordance with
the plea agreement, the State waived the habitual offender notice and the trial court
sentenced him to ten years confinement in the Texas Department of Criminal Justice
- Institutional Division. See Judgment.
SCANNED 53
Applicant did not appeal his conviction. See Criminal Docket Sheet, No.
1011284D.
Applicant's first application for writ of habeas corpus was dismissed for non-
compliance on August 6, 2014. See Ex parte Smiley, WR-31,454-02, No. C-213-
010241-1011284-A (Tex. Crim. App. Aug. 6, 2014) (not designated for publication).
II. APPLICANT'S ALLEGATIONS
Applicant alleges his confinement is illegal because ( 1) his rights to due
process was violated when TDCJ's notice was given and BPP's vote was taken more
than 2 years after he became eligible for mandatory supervision release and (2) his
due course of law rights were violated when TDCJ's notice was given and BPP's
vote was taken more than 2 years after he became eligible for mandatory supervision.
See Application, p. 6-9.
III. NECESSITY FOR AN EVIDENTIARY HEARING & EXPANSION OF
THE RECORD
There is no need for an expansion of the record. Applicant's grounds for relief
can be resolved based on the record before this Court. Applicant need NOT be
brought back to Tarrant County for a hearing.
2 54
IV. ARGUMENT AND AUTHORITIES
A. General Writ Law
In a habeas corpus proceeding, the burden of proof is on the applicant. Ex
parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). An applicant "must prove by
a preponderance of the evidence that the error contributed to his conviction or
punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). In
order to prevail, the applicant must present facts that, if true, would entitle him to the
relief requested. Ex parte Maldonado, 688 S.W.2d 114 (Tex. Crim. App. 1985).
Relief may be denied if the applicant states only conclusions, and not specific facts.
Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an
applicant's sworn allegations alone are not sufficient to prove his claims. Ex parte
Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).
B. Applicant's first and second grounds for relief should be DISMISSED AS
MOOT because he has already been reviewed, and denied, twice for
discretionary mandatory supervision since the alleged error.
Applicant alleges that he should have been considered for discretionary
mandatory supervision in 2010, but he wasn't. See Application, p. 6-9. Applicant
admits that he was, however, considered for, and denied, release to discretionary
mandatory supervision in April, 2013. See Application, p. 7, 9; Memorandum,
Exhibits B-1, G. Applicant was also considered for, and denied, release discretionary
3 55
ce
mandatory supervision in Ferbruary, 2014. See Attachment A: Parole Information
Review, No. 00693698.
While Applicant may have had a claim from 2010 to 2012, the relief to which
he would have been entitled was immediate review for mandatory supervision. See,
e.g., Ex parte Retzlaff, 135 S.W.3d 45, 51 (Tex. Crim. App. 2004) ("Given the
repeated failures to provide adequate and timely notice to this particular applicant, we
conclude that applicant is entitled to the specific habeas corpus relief that he has
requested- a new review 'as soon as possible.'"). However, as Applicant has been
reviewed, and denied, release to mandatory supervision twice since then, Applicant's
claim that he was not timely considered for release to mandatory supervision is now
moot. See, e.g., Ex parte Ramos, 2004 WL 2241000, *2 (Tex. Crim. App. Sept. 29,
2004) (not designated for publication) ("His constitutional claim, though previously
valid, is now moot. Accordingly, we dismiss the application"). 1
Applicant's grounds should be DISMISSED AS MOOT.
1
Because unpublished opinions "must not be cited as authority," this case is included
only for precedential value.
4 56
V. CONCLUSION
Wherefore, premises considered, the State prays that this Court recommend
that Applicant's application for writ of habeas corpus be DISMISSED AS MOOT.
Respectfully submitted,
JOE SHANNON, JR.
Criminal District Attorney
Tarrant County
Ai:Idrea Jacobs
State Bar No. 24037596
401 West Belknap
Fort Worth, TX 7 6196-020 1
Phone: 817/884-1687
Facsimile: 817/884-1672
CERTIFICATE OF SERVICE
A true copy of the above has been mailed to Applicant, Mr. Rodney Elnesto
Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel
for Offenders, P.O. Box 4005, Huntsville, Texas 77342 on this the 9th day of
September, 2014.
Mdrea Jacobs
CERTIFICATE OF COMPLIANCE
I certify that the total number of words in this State's Response, combined
with the accompanying State's Proposed Findings of Fact and Conclusions of Law, is
1818 words as determined by Microsoft Office Word 2010.
~
Andrea Jacobs
5 57
TDCJ Offender Details
ce
http://offender.tdcj.state.tx.us/OffenderSearch/reviewDetail.action?s ...
[EJ TDCJ Home - New Offender Search
Name: SMILEY,RODNEY ELNESTO SID Number: 03361205 TDCJ Number:
00693698
Parole Review Information
Parole Review Status
Not in Parole Review
The offender is currently not in the review process.
Last Parole Decision
Denied on 02/18/2014
OMS (02/2015)- Deny release to Discretionary Mandatory Supervision and set for next review.
Denial reason(s): 901, 902, 1D, 20, 50
* Note: One or more of the components indicated in each paragraph may apply, but only one is required
for denial (D).
1D CRIMINAL HISTORY- THE RECORD INDICATES THAT THE INMATE HAS REPEATEDLY
COMMITTED CRIMINAL EPISODES OR HAS A PATTERN OF SIMILAR OFFENSES THAT
INDICATES A PREDISPOSITION TO COMMIT CRIMINAL ACTS WHEN RELEASED; OR THE
RECORD INDICATES THAT THE INMATE IS A LEADER OR ACTIVE PARTICIPANT IN GANG OR
ORGANIZED CRIMINAL ACTIVITY; OR THE RECORD INDICATES A JUVENILE OR AN ADULT
ARREST OR INVESTIGATION FOR FELONY AND MISDEMEANOR OFFENSES.
2D NATURE OF OFFENSE- THE RECORD INDICATES THAT THE INMATE COMMITTED ONE OR
MORE VIOLENT CRIMINAL ACTS INDICATING A CONSCIOUS DISREGARD FOR THE LIVES,
SAFETY, OR PROPERTY OF OTHERS; OR THE INSTANT OFFENSE OR PATTERN OF CRIMINAL
ACTIVITY HAS ELEMENTS OF BRUTALITY, VIOLENCE, OR CONSCIOUS SELECTION OF VICTIM'S
VULNERABILITY SUCH THAT THE INMATE POSES A CONTINUING THREAT TO PUBLIC SAFETY;
OR THE RECORD INDICATES USE OF A WEAPON.
50 ADJUSTMENT DURING PERIODS OF SUPERVISION -THE RECORD INDICATES
UNSUCCESSFUL PERIODS OF SUPERVISION ON PREVIOUS PROBATION, PAROLE, OR
MANDATORY SUPERVISION THAT RESULTED IN INCARCERATION, INCLUDING PAROLE-
IN-ABSENTIA REVOCATIONS.
901 DISCRETIONARY MANDATORY SUPERVISION -THE RECORD INDICATES THAT THE
1 of2 9/9/20
TDCJ Offender Details
(• ce
http://offehder.tdcj.state.tx.us/OffenderSearch/reviewDetail.action?s ...
iNMATE'S ACCRUED GOOD CONDUCT TIME IS NOT AN ACCURATE REFLECTION OF THE
INMATE'S POTENTIAL FOR REHABILITATION.
9D2 DISCRETIONARY MANDATORY SUPERVISION -THE RECORD INDICATES THAT THE
INMATE'S RELEASE WOULD ENDANGER THE PUBLIC.
Next Parole Review Date
0212015
... Ba~::k . .
The Texas Department of Criminal Justice updates this information regularly to ensure that it is
complete and accurate, however this information can change quickly. Therefore, the information
on this site may not reflect the true current location, status, scheduled termination date, or other
information regarding an offender.
For questions and comments, you may contact the Texas Department of Criminal Justice, at (936)
295-6371 or webadmin@tdcj. state. tx. us. This information is made available to the public and law
enforcement in the interest of public safety. Any unauthorized use of this information is forbidden
and subject to criminal prosecution.
New Offender Search TDCJ Home Page
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59
2 of2 9/9/2014 11:10 AM
THOMAS A FILED
! TARRANfb~Q~'TYDIST. CLERK
, TEXAs
C-213-010293-1011284-B S~ fll12D14
TIME G:·fd
EX PARTE § IN THE 213th JUDI~~ :Jt:: - DEPUTY
§
§ DISTRICT COURT OF
§
RODNEYELNESTOSNOLEY § TARRANT COUNTY, TEXAS
STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT
AND CONCLUSIONS OF LAW
The State proposes the following Memorandum, Findings of Fact and
Conclusions of Law regarding the issues raised in the present Application for Writ of
Habeas Corpus.
MEMORANDUM
The applicant, RODNEY ELNESTO SJ\1ILEY ("Applicant"), alleges that he
is being unlawfully confined ( 1) his rights to due process was violated when TDCJ' s
notice was given and BPP' s vote was taken more than 2 years after he became
eligible for mandatory supervision release and (2) his due course of law rights were
violated when TDCJ's notice was given and BPP's vote was taken more than 2 years
after he became eligible for mandatory supervision. See Application, p. 6-9.
In light of Applicant's contentions and the evidence presented in the Writ
Transcript, the Court should consider the following proposed findings of fact and
conclusions of law:
SCANNED 60
i
II
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FINDINGS OF FACT
General Facts
1. Applicant pled guilty, pursuant to a plea agreement, to the third degree felony
offense of injury to a child with intent to cause bodily injury. See Judgment,
No. 10112840.
2. In accordance with the plea agreement, the State waived the habitual offender
notice and the trial court sentenced him to ten years confinement in the Texas
Department of Criminal Justice -Institutional Division. See Judgment.
3. Applicant did not appeal his conviction. See Criminal Docket Sheet, No.
1011284D.
4. Applicant's first application for writ of habeas corpus was dismissed for non-
compliance on August 6, 2014. See Ex parte Smiley, WR-31,454-02, No. C-
213-010241-1011284-A (Tex. Crim. App. Aug. 6, 2014) (not designated for
publication).
Mandatory Supervision
5. Applicant alleges that he was not timely reviewed for release to mandatory
supervision in 2010. See Application, p. 6-9.
6. Applicant was reviewed for release to mandatory supervision in April, 2013.
See Application, p. 7, 9; Memorandum, Exhibits B-1 and G.
7. Applicant was reviewed for release to mandatory supervision in February,
2014. See State's Response, Attachment A: Parole Information Review,
TDCJ-ID No. 00693698.
8. Applicant was denied release to mandatory supervision in 2013 and 2014. See
Application, p. 7, 9; Memorandum, Exhibits B-1 and G; State's Response,
Attachment A.
9. Applicant is set for review for release to discretionary mandatory supervision
in February, 2015. See State's Response, Attachment A, p. 1, 2.
2 61
10. Because Applicant has been reviewed for release to mandatory supervision
twice since the date he alleges he was not timely reviewed, Applicant's claims
are MOOT.
CONCLUSIONS OF LAW
General Law
1. In a habeas corpus proceeding, the burden of proof is on the applicant. Ex
parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). An applicant "must
prove by a preponderance of the evidence that the error contributed to his
conviction or punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex.
Crim. App. 2001 ).
2. Relief may be denied if the applicant states only conclusions, and not
specific facts. Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App.
2000). In addition, an applicant's sworn allegations alone are not sufficient
to prove his claims. Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim.
App. 1988).
Mandatory Supervision
3. "Given the repeated failures to provide adequate and timely notice to this
particular applicant, we conclude that applicant is entitled to the specific
habeas corpus relief that he has requested - a new review 'as soon as
possible."' Ex parte Retzlaff, 135 S.W.3d 45, 51 (Tex. Crim. App. 2004).
4. Because Applicant claims he was not given a timely review for release to
mandatory supervision, the relief would be a new review as soon as possible.
5. Because Applicant has been afforded two reviews for release to mandatory
supervision since the date he complains he was denied timely review, his
claims are MOOT.
6. This Court recommends that Applicant's first ground for relief be
DISMISSED AS MOOT.
7. This Court recommends that Applicant's second ground for relief be
DISMISSED AS MOOT.
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li
WHEREFORE, the State prays that this Court adopt these Proposed Findings
of Fact and Conclusions of Law and recommend that Applicant's application be
DISMISSED AS MOOT.
Respectfully submitted,
JOE SHANNON, JR.
Criminal District Attorney
Tarrant County
~
Andrea Jacobs
Assistant District Attorney
State Bar No. 24037596
401 West Belknap
Fort Worth, TX 76196-020 1
Phone: 817/884-1687
Facsimile: 817/884-1672
CERTIFICATE OF SERVICE
A true copy of the above has been mailed to Applicant, Mr. Rodney Elnesto
Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel
for Offenders, P.O. Box 4005, Huntsville, Texas 77342 on or before the 9TH day of
September, 2014.
Andrea Jacobs
CERTIFICATE OF COMPLIANCE
,,
1
' The total number of words in this State's Proposed Findings of Fact and
Conclusions of Law, combined with any State's Response, is 1818 words as
determined by the word count feature ofMicrosoft Office Word 2010.
Andrea Jacobs
4 63
C-213-010293-1011284-B
EX PARTE § IN THE 213th JUDICIAL
§
§ DISTRICT COURT OF
§
RODNEYELNESTOSNULEY § TARRANT COUNTY, TEXAS
ORDER
The Court adopts the State's Memorandum, Findings of Fact and Conclusions
of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY
("Applicant") requests be DISNUSSED AS MOOT. The Court further orders and
directs:
I. The Clerk of this Court to file these findings and transmit them along
with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by
law.
2. The Clerk of this Court to furnish a copy of the Court's findings to
Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon.
Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas
77342 (or to Applicant's most recent address), and to the appellate section of the
District Attorney's Office.
SIGNED AND ENTERED this _ _ day of _ _ _ _ _ _ _ _, 2014.
JUDGE PRESIDING
64
• C-213-010293-1011284-B
"-
•
TIME~
FILED
HOMAS A WILDER, DIST. CLERK
TARRANT COUNTY, TEXAS
SEP 18 2014
v
a..· D c:::
./
BY~-.~--~~""?'~-0-E-PUTY__...
EX PARTE § IN THE 213th JUDICIAL
§
§ DISTRICT COURT OF
§
RODNEYELNESTOSN.ULEY § TARRANT COUNTY, TEXAS
ORDER
The Court adopts the State's Memorandum, Findings of Fact and Conclusions
of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY
("Applicant") requests be DISM1SS~J),~S M:oor.. The Court further orders and
directs:·
. f. < .. The Clerk of this Court to file th~se frridfugs ancl transmit them along
with the Writ Transcript to the Clerk of the CoUrt of Criminal Appeals as required by
law. ; •,.
2. The Clerk of this Court to furnish a copy of the Court's findings to
Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon.
Kenneth Nash; at State Counsel for Offenders, P;O. Box 4005·, Huntsville, Texas
77342 {or to Applicant's most recent' address), and to the appellate section of the
District Attorney's Office.
'•. ; >
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:. :.
. .
. ..··. ' . . ..... -~ '·
65
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':' .· .··.
Certified True Copy
. ; !
THE STATE OF TEXAS · ' ) ~ .
COUNTY OFTARRANT §
·.:.·
I, Thomas A .. Wilder, Clerk of the District Courts of Tarrant County, Texas, do hereby certifY that the above and
foregoing is a true and co~ectcdpy ALL PROCEEDINGS HAD.
of . . .
In Writ Number: C-21,3-010293-1011.284-B
EX PARTE: :Jl~DNEY ELNESTO SMILEY
vs.
THE STATE OF TEXAS
as the sa.rrie appears on the file and/or record in my said office.
GIVEN UNDER MY HAND and seal of Said Court at office in the City of Fort. Worth,
Tarrant County, Texas, this the z.? , day of~~.D.25V7 7£ .
. :.. :: ::
----'-------'----"-.~T~H=O=l\1A,S A. WIL='D=E=~R~. ....;..._-....,...----
CLERK, DISTRICT COURTS, TA~NT COUNTY, TEXAS
66