Gordon, Robert

Clerk Abel Acosta /01 (;{!/ -d-l
Court of C.rimi_n.g_J Af;lpeals ofrf.\~110cument contains s
P.O. Box 12308. Capltol StRt~nn orne
A11 c:: ;- ; n TP ' 7 8 711 tlages that are of poor quality
_______ , .xas -- atthetimeofimaging.
Dear District Clerk:
Enclosed please find the Ori8ina1 of Relator's Writ of Mandau1us and
two copies thereof to be filed with the Court for ruling on same.
,Please notify me of the filing date with the Court and the Court's
filing number for such purposes.
Thank you kindly for your attention a.nd cooperation in these regards.
Sincerely your,
Robert Gordon TDCJ-ID#319173
Wynne Unit
810 FM 2821
Huntsville, Texas 77349 ·
RECE~VED ~N
COURT OF CRVMif\!~l APPEAlS
APR 2 4 2015
Ab~ Acosta$ Clerk
~ .·.
ROBERT GORDON,
vs.
APPLICANT-RELATOR
CAUSE NO'S
------..IN THE TEXAS COURT OF
CRIMINAL APPEALS
\
AUSTINs TEXAS
TEXAS COURT OF CRIMINAL APPEALS CAUSE NO'S. 10085 AND
AUSTIN, TEXAS, 10238W. AND 13.472 AND
WILLIAM STEPHEnS" ·DIRECTOR. 2 2 7-7 8. / '
RESPONDENT's'
APPLICATION FOR \-JRIT OF
MANDAMUS.
TO THE HONORABLE JUDGES OF SAID COURT;
NOW COMES Robert Gordon, Relator, pro se in the above-style and
numbered cause's of action and files this original Application for writ
of Mandamus pursuant to Texas Constitution Article 5, Subsection C. See
also Texas Constitution Article 5, Section 3. This authority is als6
found ~n Article 4.04 (1) of the Code of Criminal Procedure; and Texas
Rule Appellate Procedure Article 52.1, See Matthaei vs. Clark,(Sup.1969)
110 Tex. 114, 216 S.W. 856; EX PARTE BROOKS,((r App 1986) 722 S.W.2d 140.
See also Dallas Area Rapid Transit vs. Amalgamated Trarisit Union
Local No. 1338 (Sup 2008) 273 S.W.3d 659, Certiorari denied 129 S. Ct.
2767 5 174 L. Ed. 2d 284. See also Martin vs; Hamlin,---25 S.W. 3d 718 (Tex.
Cr. App. 2000);See also State Ex rel. Healey vs. McMeansJ--884 S.W. 2d 772
(Tex. Cr. App. 1994); EX PARTE Rodriguez vs. Court of Criminal Appeals,
980 S.W.2d 475 (Tex. CR.App. 1998).
I.
RELATOR;
Robert Gordon TDCJ-ID#319173 is an offender incarcerated in the
Texas Departmeni of Criminal Justice--Institutional Division and is appear-
ing pro se, who can be located at the Hynne Unit, 810 FM 282.1, Huntsville,
Texas 77349.
II.
RESPONDENT:
Respondent Texas Court of Criminal Appeals, P.O.Box 12308,Capitol
Station, Austin, Texas 78711.
Respondent William Stephens DiLector P.O.Box 99~ Huntsville, Texas
77342.
\
Page L..
III.
Relator has exhausted all remedies and has no other adequate remedy
at law.
The act sought to be compelled is ministering not discretionary in
nature. Braxton vs. Dun~,-803 S.l:7.2d 318, 320 (Tex. Cr. App. 1991). An act
is ministerial ;!when the law clearly spells out the duty·to be performed ...
with such certainty that nothing is left to the exercise of discretion or
judgment". Tex~DepJ:..:_~Cor~ec tions vs. Dalehi te, 623 S.W.2d 20 ~ 24
(Tex. Cr. App. 1981)~
The Court of Criminal Appeals and each iudge thereof shall have~ and
is hereby given, the power and authority to grant and issue the issuance
of writ of habeas~ and in criminal matters~ the writs of Mandamus~
Procedendo~ Prohibition~ and Certiorari. The Court and each Judge thereof
have : and is hereby given~ the power and authority to grant and issue aad
cause the issuance of such other writs as may be necessary to protect its
jurisdiction or enforce its judgments. Texas Constitution Article 5,
Subsection C.
IV,
HISTORY OF THE STATE'S CASE AND IN CUSTODY REQUIREMENT
Relator was convicted in cause number 10085 and 10238W in which
Relator p lP.rl eui 1 ty to the two cause's in exchange f Ot' two .( 2) four. ( 4)
yeA: sentence~ to be r8n concurrently, that would be probated,
Jurlge Lindsey personally participated in the plea bargaining processes.
Relator was told by Judge Lindsey that is he decided at any time, th~t he
was going to reject the plea bargain agreements, that Rela~or would be
a]lowed, and shall he permitted to withdraw Relator's pleas of guilty,
However, At the point in which Judge Lindsey hearrl the revocation of
probation hearing he stacked cause number 10218W on top of cause number
10085J thereby rejecting the plea bargain agreements.
Page 3.
These plea bargain agreements were consolidated and tried at the same
time as Relator plead guilty to both offenses at the same time in cause
number's 100~5 and 10238W. To provide evidence of this fact Relator would
point this Court to the fact in order for Judge Lindsey to be able to
consolidate these cause number's 10085 and cause number 10238W, Relator
had to waive Relator's rights to indictment in which Relator did in order
to recive the two cause's 10085 and 10238W to be tried together at the
same time, so Relator could receive concurrent setences otherwise Relator
would not of waived Relator's rights to be indicted first before the Court
could proceed on both cause's 10085 and 10238W, as the Court lacked
jurisdiction for trial of both cause's at that time. Relator would fuether
argue to this Court that Relator is actually innocent of committing these
offenses of Theft in cause number 10238\.J and Unauthorize Use of a Motor
Vehicle in ~ause number 10085.
Relator would show this Court that because of the serious collateral
consequences arising from a conviction for felony thef~ the doctrine of
mootness does not prohibit this collateral attack. See Ex Parte Guzman,
551 S.W.2d 387 (Tex. Cr. App.1977); Ex Parte Burt, 499 S.W.2d 109 (Tex Cr.
App. 1973); Ex Parte Jentsch,510 S.W.2d 320 (Tex. Cr. App. 1974); Ex Parte
Langston, 510 S.W.2d 603 (Tex. Cr. App. 1974);See also Ex Parte Harp, 561
S.W.2d 180 (Tex. Cr. App. 1978).
Relator would contend that it is well settled that a habeas corpus
11
Application Applicant meets the statutory in custody"requirements when,at
the time he files the petition he is in custody pursuant to the conviction he
attacks or he is in custody pursuant to another conviction that is positively
and demonstrably related to the convictions he attacks. See Carter vs.
Procunier, 755 F.2d 1126 (5th Cir. 1985); See also Carter vs. Estelle, 677
F.2d 427 (5th Cir. 1982).
Page 4.
Relator would assert that Relator is confined pursuant to a May 20th
1986: conviction for aggravated assault in cause number 13,472, wherein
the 12th Judicial District Court of Walker County, Texas, upon plea of
not guilty and jury trial, Relator was found guilty and punishment was
assessed by the jury at 99 years imprisonment and ordered to run
consecutively with the sentence Relator was assessed upon conviction for
credit card abuse of 20 years imprisonment as punishment in cause number
22778. Therefore, Relator's present confinement is set at 119 y~ars
imprisonment. Punishment enhanced by proof of the prior convictions in
cause rtumber 10085 and cause number 10238W in both convictions in cause
numbers 22778 and in cause number 13,472, that Relator is now confined on.
However, in cause number 22778, Relator plead true to the enhancement
Count's cause number 10085 and cause number 10238W. Therefore, Relator
would show that Counsel at the 1981 trial was ineffective because he failed
to investigate the validity of Relator's 1977 convictions that the prosecutor
used the 1977 convictions for enhancement counts when he should have known
that it was void. See. V.T.C.A.Penal Code 3.03.
A defendant may not by agreement render legal a punishment which is
not otherwise authorized by law. Heath vs. State, 817 S.W.2d 335 (Tex. Cr.
App. 1991). In circumstances such as Rel~tor's ' 1 sentences shall run
concurrently~ V.T.C.A.Penal Code 3.03. This language creates an absolute
restriction of a trial Court's general authority to impose consecutive
sentences. See Wilson vs. State,677 S.W.2d 518 (Tex. Cr. App. 1984). A
defect which renders a sentence void may be raised at any time. Ex Parte
Mcjver,586 S .. W.2d 851, 854 (Tex. Cr. App. 1979); Ex Parte Shields, 550
S.W.2d 670 7 675 (Tex. Cr. App.1977).
Clearly, La Porte vs. State,840 S.W.2d 412 (Tex. Cr. App. 1992), Leaves
no doubt, on the State of the law in this area of the law.
Page 5.
See also Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993), and Ex Parte
McJunkins, 954 S.H.2d 39,39-43 (Tex. Cr. App.1997);. See also Cook vs.
Lynaugh, 821 F.2d 1072 (5th Cir. 1987); See also Hill vs. Lockhart, 474
U.S. 52, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203(1985). As Relator clearly
had a plea bargain for concurrent sentences in cause No's. 10085 and
10238W. See attachment hereto of Exhibit "A" o incorporated herein for all
purposes. Clearly Relator is entitled to reversal of the convictions and
sentences.
Relator suggests the proper remedy in cause number's 10085 and 10238W
should be found to be void under La Porte vs. State, 840 S.W.2d 412 (Tex.
Cr. App. 1992); and Ex.Parte Sims 868 S.W.2d 803 (Tex. Cr. App. 1993); And
Ex Parte McJunkins,954 S.W.2d 39-43 (Tex. Cr. App. 1997), and remand
back to the trial Court for new trial, relying on these above described
Court decisions and in cause number's 22778 and 13,472 these sentence's
should be reversed for resentence without the void convictions 10085 and
10238W being used for enhancement Counts purposes. As a matter of the law.
See Burgett vs. State of Texas,389 U.S. 109, 112-13, 88 S. Ct. 258, 260-61,
19 L. Ed. 2d 319 (1967); Zales vs. Henderson, 433 F.2d 20 (5th Cir. 1970):
Martinez vs. Estelle,612 F.2d 173 (5th Cir. 1980); Carter vs. Estelle, 677
F.2d 427 (5th Cir. 1982); See also Carter vs. Procunfer755 F.2d 1226 (5th.
Cir. 198S); Cook vs. Ly~augh:821 F.2d1072 (5th. Cir. 1987).
v.
THRESHOLD QUENTIONS
Several preliminary issues will be raised which must be considered
before the issues are revie.ed on there meri~s; this has the effect of
11
making this case more complex than the issues of complaints Unkept Plea
Bargain agreements and void stacking of the sentence~ in cause number
10085 and 10238W' 1 , which changed Relator's punishment from a total of
four (4) years maximum to a eight (8) year maximum, prison sentence. See
Pa·ge 6.
Attachment hereto of Exhibit ;'B"; 1 of 3 pages incorporated herein for all
purposes. Relator did the whole eight (8) years maximum sentence.
A EXAMINATION OF THE ATTACHMENT Exhibit ' 1 B" is a affidavit of
Charley Valdez, at page 2 at the bottom of the page is a record of
Offender Robert Gordon TDCJ-ID#319173 time earning status's to show
promotion and demotion dates: :.vJhich shows Relator was betv1een 11-23-
1978 to 06-13-1982 a S4 Trusty Line Class~ 54 Status earns 30 days for
every 30 days done and earns additionally another 30 days good time. A
total of 60 days for time earning status, Time line class which equals
all time earn for that period. This chart in this box also shows
from 10-05-1982 to 05-22-1983 that Relator was Line class 3, which does
not earn any time of good time status, this time period only earns day
for day time earning status, which means no good tine earn. The chart
further shows that Relator was Line 2 status from 05-23-1983 to 07-09-1983,
this time earning status earns day.for day with only 10 days added for
good time status. A line I Status earns every 30 days he receives 20 days
good time earning status. The "B" Status earns a extra 10 days for every
30 days that Relator is Line I Status.
Clearly, there is a chart showing that Relator was continually
confined between 11-23-1978 to 03-28-07. Which shmvs Relator discharged
the original 1977 convictions and the 1980 conviction up to th~ date
and begain serving the 1984 conviction up to the date Relator is still
confined under.
The chart above described clearly shows Relator completed the two
four (4) year sentences as stack by Judge Lindsey. Therefore, Relator suffer
the punishment of the prejudicial stacking of the t\vo four (4) year sentences
and Relator has completed doing the eight (8) years sentence in full.
Therefore, Relator seeks to withdraw Relator's pleas of guilty in
P:tge 7.
cause number's 10085 and 10238W and be able to plea again, Anew to not
guilty in accordance to the prejudicial punishment of the Eight years
that Relator had to do, in violation of Relator's original plea bargain
agreements of the (2) four (4) year concurrent sentencing. La Porte vs.
State, 840 S.W.2d 412 (Tex. Cr. App. 1992); and Ex Parte Sims,868 S.W.
2d 803 (Tex. Cr. App. 1993); And Ex Parte McJunkins,954 S.W.2d 39-43
(Tex. Cr; App. 1997).
Relator was cited for abuse of the writ process pursuant to an order
of the Court of Criminal Appeals, pn May 25th,1983. Said Order is attached
as Exhibit "C", incorporated herein for all purposes.
Relator states that, as set out in Relator's·original Application for
habeas corpus, Relator has not been provided with the opportunity to
challenge the earlier convictions in number's 10085 and 10238W, on the
issues now presented due to the fact that the only issue on Relator's prior
Appeal proffered by Counsel Jeffrey A. Kearney was the issue of the Judge's
authority to cummulate Relator's sentences. In this Appeal Counsel Jeffrey
A. Kearney received a proitable decision by the Court of Criminal Appeals
in it's opinion by the Court ordering the cumulation recitals in the
sent.ences in cause number 10238W are ineffective and are therefore ordei"ed
deleted therefrom, under the Court's decision in Ex Parte Reynolds,462 S.W.
2d 605 (Tex. Cr. App. 1970). However, the Court didn't stop there,it went on
to state: 11
Finally ~ \ve have reviev1ed the Appellant's pro se allegations
and we find them to be \vithout· merit'.' See Gordon vs. Stat~ 575 S.W.2d
529, at 534 (Tex. Cr. App. 1978).
Relator raised in Relator's Prom Se allegations the conviction and
11
sentences w·ere based on "Unkept Plea Bargain Agreements •
Relator would further show the Court that Relator filed two (2) writ's
of habeas corpus while Appeal was still pending before the Court of
Pa'ge 8.
Criminal Appeals, which Judge Lindsey ordered Relator's two (2) writs of
habeas corpus to be forwarded to the Court of Criminal Appeals to be
treated as pro se brief's on Appeal, per order of the Judge Lindsey.
Upon review of these Pro Se Brief's on Appeal, .because the Court
of Criminal Appeals entered into a judgment in Relator's behalf by
ordering the cumulation of cause number 10238W as being ineffective and
therefore ordered deleted therefrom, and ordering the reformation of the
sentences of cause number's 10085 and 10238W to be ran concurrently. See
Gordon vs. State,575 S.W.2d 529, at 534 (Tex. App~ 1978).
~elator's pro se brief's were never reached on there merits because
the Court of Appeals was ordering the reformation of the stacking order
of the Court Judge Lindsey. See Gordon vs. State, 575 s~w. 2d 529, at
534 (Tex. Cr. App. 1978), and this is why the Court found Relator's 11
Unkept
plea bargain agreement claims in the pro se brief's to be without merit,
because the Court of Criminal Appeals was reforming the stacking of the
sentences".
So, Relato~ didn't suffer no prejudice, as Relator was having Relator's
original plea bargain agreement enforced by the Court of Criminal Appeals
ordering the reformation of the sentences of cause number 10085 and
10238W to be ran concurrently. Gordon vs. State,575 S. H. 2d 529, at 534
(Tex. Cr. App·. 1978).
However, the State filed a Motion for Rehearing vJi thin the Texas
Court of Criminal Appeals under its rules, ordered a rehearing, on the
State's filed Motion for Rehearing. The Rehearing was granted, and that
part of the original opinion declaring the cumulation order invalid and
reforming the sentence is set aside and the judgment including the
cumulation orders are now affirmed. See Gordon vs. State, 575 S.W.2d 529
at 534-535 (Tex. Cr. App. 1979).
Page 9.
Relator has did the full sentences as stacked and has fully completed
the sentences as stacked due to the Court of Criminal Appeals opinion and
decision. See Gordon vs. State,575 S.W.2d 529, at 534-535 (Tex. Cr. App.
1979). So, Relator has suffered the prejudicial harm of the Court of
Criminal Appeals opinion and decision on rehearing. See also Exhibit "Bn
'
the affidavit of Valdez~
Relator would further point out to the Court that on direct Appeal
Counsel Jeffrey A. Kearney completely abandoned Relator on Appeal when he
received the proitable decision by the Court of Criminal Appeals in its
opinion. However, on State's granted Motion for Rehearing and the Court of
Criminal Appeals decision in restacking the sentences. Gordon vs. State,
575 S.W.· 2d 529, at 534-535 (Tex. Cr. App. 1979).
Counsel Jeffrey A. Keirney merely sent Relator the Court's decision,
with a letter of the opinion and never advised Relator of the rights to
file a Motion for discretionary review, thereby, denying Relator of the
right to do so and just merely abandoned Relator.
Relator due to the Court's never reaching the ~'Unkept Plea bargain
1
issue' raised by Relator. Relator filed the first application for writ of
habeas corpus in the 3rd Judicial District Court of Tarrant County, Texas.
The assistant district attorney in Fort Worth, Texas, filed a
writ response to Relator's first writ of habeas corpus filed and heard as
a writ of habeas corpus and attached a copy of Relator's two writs of habeas
corpus that were forwarded to the Court of Criminal Appeals to be consider
as Pro Se brief's on Appeal, which ~ent without being actually heard on oits
merits because the Court's order reforming the sentence pursuant to attorney
Jeffrey A. Kearney's brief on Appeal receiving a favorable Court of
Criminal Appeals decision. See Gordon vs. State,575 S.W;2d 529, at 531-
534 (Tex. Cr. App. 1978).
The Assistant District Attorney in Fort Worth, Texas, attached a copy
.Page 10.
of Relator's Pro Se brief's on Appeal and pointed to the Opinion of the
Court of Criminal Appeals wherein the Court stated that Relator's Pro Se
brief on Appeal was without merit and argued that the Court should cite
Relator for abuse of the writ of habeas corpus because Relator has already
addressed Relator's claims on Appeal and the Court of Criminal Appeals
has found them to be without merit and Relator is again attempting to have
the same claims heard again after they have already been heard and denied
and found to be without merit by the Court of Criminal Appeals. The
assistant district attorney ''played the district Court Judge and the Court
of Criminal Appeals", by these arguments and committed fraud on the Court in
which the assistant district attorney acted with a intentional ill motive
1
which should not have pass even the most lenient ethical 'smell test 1.' He
clearly bypassed questions of ethic's in a effort to gain advantage in this
litigation. He clearly acted in bad faith and ignored the facts of the true
reasons in why Relator's Pro Se brief's on Appeal were found to be without
merit by the Court of Criminal Appeals decision and opinion in which the
Court of Criminal Appeals was ordering, the cumulation recitals in the
sentence in cause number 10238W to be ineffective and therefore ordered it
deleted therefrom. As, the next statement by the Court of Criminal Appeals:
Finally 1 we have reviewed the Appellant's Pro Se allegations and we find
them to be without merit, but this finding was made because Relator
received a favorable decision on Appeal by the unstacking order. See Gordon
vs. State, 575 S.W.2d 529, at 531-534 (Tex. Cr. App. 1978).
Furthermore, the Assistant district attorney also gain advantage by
his false arguments to the Court of Criminal.Appeals by that Court citing
Relator for writ abuse in Relator's first writ of habeas corpus that was
considered at that time and Reatohas been denied the ability to ever
file another writ of habeas corpus since the Assistant district attorney
made his fraudulent arguments that got the Court of Criminal Appeals to cite
Page 11.
11
Relator for writ abuse. See prior \vrit· abuse attached hereto as Exhibit C"
incorporated herein for all purposes.
Subsequently, the State filed a Motion for rehearing within the Texas
Court of Criminal Appeals under the Rules, ord~red a rehearing on the
State's filed Motion for rehearing. The rehearing was granted, and that
part of the original opinion declaring the cumulation set aside is now
reversed and the judgment including the cumulation order are now affirmed.
See Gordon vs. State,575 S.W.2d 529, at .534-535 (Tex. Cr. App. 1979).
Relator would argue to the Court that the rehearing the Court of
Criminal Appeals entered into error by relying on Spencer vs. State, 503
S.W.2d 557 (Tex. Cr. App. 1974), and Ex Parte Crawford, 36 Tex. Cr. App.
180, 36 S.W. 92 (1896); Ex Parte March, 423 S.W.2d 916 (Tex. Cr. App.1Yb8),
And Ex Parte Davis, 542 S.W.2d 117 (Tex. Cr. App. 1976).
Relator contends that the trial Court erred in cumulating the sentences
because concurrent sentences are mandated by Tex. Penal Code Ann. 3.03 (Ver-
non's 1974):
Section 3.03 provides:
Uhen the accused is tound guilty ot more than
one offense, arising out of the same criminal
episode prosecuted in a single criminal action,
sentences tor each offense for which he has
been found guilty shall be prononced. Such
sentences shall run concurrently.
~he Court of Criminal Appeals on rehearing erred in thj~ it relied on
outdated cases and law ...
Relator would show the Court where a trial Judge's cumulates and
does increase punishment after revocation, an additional issue is presented:
Whether an increise in punishment after revo6ation violates due process
under North Carolina vs. Pearce, 395 U.S.711, 89 S. Ct. 2072, 23 L. Ed. 2d
656 (1969). Cf. Bovie vs. State,5b5 S.W.2d 543 (Tex. Cr. App. 1978);Lechuga
vs. State,~32 S.W.2d 581 (Tex. Cr. App. 1975).
Page 12.
The Court of Criminal Appeals additionally stated in La Porte vs.
State, 840 ~.w.2d 412 llex. Cr. App. ~Y92) that:
"An improper cumulation order is, in
essence, a void- sentence, ana such
error cannot be waived. A derect
which renders a sentence void may
be ralsed at any time. Levy vs.
State,81~ S.W.2d 801 (Tex.Cr.App.
1991).
The La ~orte, Court further recognized that it had vacated improper
cumulation orders presented for tne first time in Postconviction writs of
habeas corpus. La Porte,Supra, footnote 5. See Ex Parte Ashe, 641S.W.2d
243 (Tex. Cr. App. 1982), and Ex Parte Vasouez, 712 S.W.2d754 (Tex. Cr.
App. 1986). See also Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App.1993),
Ex Parte McJunkins,954 s.W.2d 39, 39-43 lTex. Cr. ~pp.1997).
~elator contends that as a matter of the law the trial Court, as well
the Court of Criminal Appeals has erred in cumulating the sentences
because concurrent sentences are mandated by Tex. Penal Code. Ann. 3.03
(Vernon's 1974), as a matter of law. See La Porte vs. State,840 S.W.2d 412
(Tex. Cr. App. 1992); Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993),
and Ex Parte McJunkins, 954 S. \v. 2d _39, 39-43 (Tex. Cr. App. 1997), in which
Relator relies and is entitled to as a matter of law.
Relator's convictions should be voided and Relator returned to the
trial Court to face these charges again, as Relator's plea bargain
agreements were violated by the Court and Relator has already did the
sentences, as cumulated against Relator in cause number's 10085 and
10238W. Relator has suffered the prejudicial harm of the stacking of the
sentences. Relator should be able to withdraw the pleas of guilty, as
Relator was told he would be allowed to do, if Judge Lindsey didn't
except the pleas of guilty. Relator is entitled to relief under Ex Parte
Sims, 868 S.W.2d 803, at 804-805 (Tex. Cr. App. 1993); Ex Parte McJunkins,
Page 13.
954 S.W.2d 39,39-43 (Tex. Cr. App. 1997).
Relator attempted to file another application for w~it of habeas
corpus when Relator came accross the case of La Porte vs. State, 840
S.W.2d 412 (Tex. Cr. App. 1992), and arguing to the Court that their has
been a intervening change in the law which should allow Relator the
consideration of another application for writ of habeas corpus. However, the
Court again refused to hear, and intertain the claim for relief that Relator
should be entitled to by the Court of Criminal Appeals.
The Court should relize that there is no new habeas corpus claim ~r1hen
a Applicant merely asserts that a previous ruling which precluded a merits
determination was in error. There has been no final determination on the
merits of Relator's first application for writ or for that matter there
hasri't been any consideration undertaken by the Court of Criminal Appeals
under 11.07 that has ever been undertaken by this Court in none of Relator's
prior applications in any convictions in cause number's 10085 and 10238W,
and cause number 22778 and cause number 13,472, on there merits and there
has never been a written response on there merits, it always has been on
procedural grounds, such as no proper oath being given to the application
which is a requisite to the application. See Code of Criminal Procedural
requisite Article 11.14 (5) or Relator had a direct Appeal pending as
another procedural ground in keeping Relator's applications from being
heard on there merits in any of the above described causes, as it always
has been Relator's pleadings were deficient as a matter of pleading, and
denial \vi thout a vlri t ten dec is ion. The only reasonable interpretation of the
denials of Relator's Applications by the Texas Court of Criminal Appeals
is that the Court invoked proceduaral default and did not decide the case
on the merits of the Unkept plea bargain agreements, as pointed out by
Relator.
Page 14.
ARTICLE I, SECTION 12 HABEAS CORPUS
The writ of habeas corpus is a writ of right, and shall never be
suspended. The Legislature shall enact laws to render the remedy speedy
and effectual. See Code Criminal Procedure Article 1.08 and Article 11.07z
Section 4.
Relator would assert to the Court of Criminal Appeals that in Ex Parte
Torres,943 S.W.2d 469, at 475-476 (Tex. CR. App. 1997); "Because the direct
Appeal record contained insufficient evidence to evaluate the ineffective
assistant of Counsel issue, we hold that the rejection of his claim on
direct appeal does not bar relitigation of his claim on habeas corpus to the
extent that Applicant seeks to gather and introduce additional evidence not
contained in the direct Appeal record".
Relator has a similar claim of review on Appeal. Relator raised on
Appeal that the "pleas of guilty were based on Unkept Plea bargain
agreements''. No evidentiary hearing was ever entertained by the Court to
allow Relator to develope the facts of the record on Appeal. Relator would
point the Court to review Relator's Exhibit "A" a letter written to Relator
by Counsel Art Brender who represented Relator at the plea bargain
undertaken by Judge Lindsey.
Clearly, a revie\v of exhibit "A" establishes by examination of this
letter that Realator had plea bargain agreements at the time Relator entered
a plea of guilty which Relator was told by Judge Lindsey that he would
except the plea bargain agreements prior to exc~p~ance of the plea by
Judge Lindsey.
This letter by Art Brender to Relator shows that upon Judge Lindsey
adding a cumulation order to cause number 10238W and stacking the sentence
on top of cause number 10085, Relator immediately complained to Art Brender
of the unkept plea bargain agreements as the letter was written to Relator
by Art Brender in response to Relator's letter to Art Brender dated
Page 15.
February 23· 197 8, that he responded to on March 2,197 8, in his response he
makes it clear "the plea bargains in Judge Lindsey's Court were, at that
time, even though not required by law, placed in the record, and the
matters to which you inquire should be a matter of record".See Exhibit "A"
incorporated herein for all purposes.
Relator would contend Judge Lindsey excepted the plea bargain agreements
at that time and assessed two probations of four (4) years that were running
concurrently.
As, it is well established that where a trial judge does not order that
two sentences in two different cases shall be cumulative, the terms of
imprisonment automatically run concerrently. Ex Parte Reynolds,462 S.W.2d
605 (Tex. Cr. App. 1970); See also Gordon vs State,575 S.W.2d 529,at 532
(Tex. Cr. App. 1978).
Thus, Relator argues that since the judgments placeing Relator on
probation did not indicate that the sentences were to be cumulated, the
attempted cumulation after revocation is ineffective, as Judge Lindsey
excepted the pleas of guilty for two concurrent sentences, which were
suspended and Relator was placed on probation for four (4) years.
Rela«lor would point this Court to examine Exhibit "D" attached hereto
incorporated herein for all purposes. This Exhibit "D" which instrument is
entitled "conditions of Probation, in cause number's 10085 and 10238W,
shows on May 12th, 1977, Relator was placed on probation for a period of
Four (4) years, for the offenses Theft of property over 200 & under $10,000
cause number (10238W) and Unauthorized Use of a Motor Vehicle Cause number
(10085) by the Honorable Judge Charles W. Lindsey. Relator was only required
to report to the probation Officer of Tarrant County, Texas on the 6th day of
June, 1977, and on the 6th day each month thereafter, during probation.
Relator was only assessed one court cost and one probation fee by Judge
Page 16.
Lindsey and this instrument was written by Judge Lindsey and signed by
and signed by Judge Lindsey, himself.
Clearly, Judge Lindsey excepted the Plea bargain agreements.
However, Relator's punishment, upon revocation of probation, was in
fact increased to eight (8) years. As such, the trial Judge's actions in
entering a cumulation order violated the plea bargain agreemerits and
additionally presented issues in: nwhether an increase in punishment after
revocation of punishment violates due process under North Carolina vs.
Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). CF. Bovie,
vs. State, 565 S.W.2d 543 (Tex. Cr. App. 1978);Lechuga vs. State, 532 S.W.
2d 581 (Tex. Cr. App. 1975).
Judge Lindsey's revocation hearing, he stacked cause number 10238W on
top of cause number 10085, thereby rejecting the plea bargain agreements,
but he didn't allow Relator to withdraw Relator's ple~s of guilty.
Relator will show this Court that Judge Lindsey didn't even have the
right to proceed on cause number 10238W at the time in this cause number
10238W until it was consolidated by Relator waiving Relator's rights to be
first indicted by the grand-jury, pursuant to the plea baigain agreements
of concurrent sentences of probations of four (4) years.Relator wouldn't
have waived indictment by the grand-jury unless the two cases were
consolidated, cause number''s 10085 and 10238W to be tried together, at the
same time, so Relator could receive concurrent sentences.
The pleas were involuntary because they were based on an assurance
from Judge Lindsey that he eould only assess punishment of two (2) Four
(4) year sentences that he would run concurr~ntly together probated.
On Appeal even though Relator filed a Pro Se brief on Appeal it was
never considered on its merits because the Court of Appeals found in
Page 17.
in accordance with Relator's attorney's brief he obtain a favorable
decision in which the cumulation and stacking of Relator's sentence ~n
cause number 10238W was found to be ineffective and ordered to be deleted
therefrom. Thereby reforming the sentences to run concurrently. Gordon vs.
State, 575 S.W.2d 529, at 534 (Tex. Cr. App. 1978).
Relator's brief was found to be without merit because in the above
Court's opinion the Court deleted and reformed the sentences.Sb, at that
time Relator was receiving the sentences concurrently, so Relator wasn't
going to suffer no prejudicial harm. So Relator's brief went without the
unkept plea bargain claim by Relator ever being considered.
However, it must be remember that the State was granted a Motion for
Rehearing and the Court of Criminal Appeals in it's original opinion
declaring the cumulation order invalid and reforming the sentence is set
aside and the judgments including the cumulation orders are now affirmed.
Gordon vs. State, 575 S.W.2d 529, at 534-535 (Tex. Cr. App.1979).
Counsel Jeffrey A. Kearney abandoned Relator on App~al and did not
advise Relator of the right to discretionary review by the Court of
Criminal Appeals.
Relator was left with just filing the first habeas corpus Application
arguing unkept plea bargain agreements.
It must be remembered the State district attorney mislead the Court in
his response to the writ, by asking this Court to cite Relator for writ
abuse and arguing to the Court of Criminal Appeals that Relator's claims
had already been heard on Appeal and that Coprt found the claims to be
without merit and asking the Court to cite relator for writ abuse, which
the Court did, and left Relator without Relator's claims of a unkept plea
bargain agreements ever being address on there merits.
Relator would point out in Ex Parte Torres,943 S.W.2d 469 (Tex. Cr.
Page 18.
App.1997), and Ex Parte Thomas,953 S.W. 2d 286 (Tex. Cr. App. 1997),the
Court has made clear that no final disposition unrelated to the merits
and that never addressed the merits of the grounds raised in Relator's
previous Pro Se brief on Appeal or Relator's first application for writ
of habeas corpus which ended in Relator being cited for writ abuse and
the Court's never hearing none of Relator's writs, which there was no
final disposition of Relator's initial writ application and in relation
with Tex. Code. Crim. Proc. 11.07 Section 4 does not bar this Court from
addressing the merits of this instant application for mandamus, habeas
corpus to take whatever action it deems appropriate to address the claims
raised by this Relator in accordance to the Tex. Code. Crim. Proc. Art.
11.07 3(C).
These above cited cases entitled Relator to ONE BITE AT THE APPLE,
THEY clearly contemplated that bite would be a full one. Relator hasn't
had no bite at any previously filed Pro Se Brief's on Appeal or any 11.07
postconviction application for writ of habeas corpus, because the Court's
denied relief on procedural defaulted grounds.Relator has had no bite at
the apple. See also Ex Parte RawhiHson, 958 S.W.2d 198 (Tex. Cr. App.1997).
In Relator's initial application for writ of habeas corpus all claims
were not addressed on their merits. Relator meets the exceptions to
dismissal.
Relator would also point out to this Court of Criminal Appeals,that
the instant application should not be barred as a ''subsequent application
under the Texas Code Criminal Procedure, Article 11.07, Section 4,
because Relator did not become aware of the facts giving rise to the
instant application until several years later after theinitial applications.
This Court initially addresses whether the instant application is
barred as a ''Subsequent application'', under Section 4, or whether it falls
within an exception to such bar Section 4 provides, in relevant part.
Page 19.
(a) If a subsequent application for writ of an initial application,
challenging the same conviction, a Court may not consider the merits of
or grant relief based on the subsequent application unless the application
contains sufficient specific facts establishing that: (1) the current claim
and issues have not and could not have been presented previously in an
original application or in a previously considered application filed under
this article because the factual or legal basis for the claim was unavailable
on the date the applicant filed the previous application.
(C) for purposes of subsection (a)(1), a factual basis of a calim is
unavailable on or before a date described by subsection (a)(1)if the
factual basis was not ascertainable through the exercise of reasonable
diligence on or before that date. Tex. Code. Criminal Procedure Article
11.07, 4.
Relator asserts that the Court's of Appeals relied upon Caughorn vs.
State, 549 S.W.2d 196 (Tex. Cr. App. 1977), which held th~t the State's
failure to file notice of consolidation in compliance with section 3.02(b),
meant the action did not constitute a single criminal action under section
3.02. Therefore the prohibition against cumulation provided in Section 3.03
did not apply. See also Garza vs. State,687 S.W.2d 325 (Tex. Cr. App.1985);
Smith vs. State, 575 S.W.2d 41 (Tex. Cr. App. 1979).
However~ Relator would call the Court's attention to the case of
La Porte vs. State, 840 S.W.2d 412, at 413-414 (Tex. Cr. App. 1992),
wherein the Court of Criminal Appeals found that this conclusion was
clearly erroneous, and overrule Coughorn. See La Porte vs. State, 840
S.W.2d 412, 413-415 (Tex. Cr. App.1992).
Relator cont~nds theres been a intervening change in the law.See
La Porte vs. State, 840 S.W.2d 412,413-415 (Tex. Cr. App. 1992).
A sentence not authorized by law is void. Heath vs. State,817 S.W.
Page 20.
2d 335 (Tex. Cr. App. 1991); See also Wilson vs. State,677 S.W.2d 518
(Tex. Cr. App. 1994). A defect which renders a sentence void may be raised
at any time. Ex Parte MciVer,586 S.W.2d 851,854 (Tex. Cr. App. 1979);
Ex Parte Shields, 550 S.W.2d 670, 675 (Tex. Cr. App. 1977).
Relator has always complained to this Court that Relator had a Plea
bargain agreement for two (2) four (4) year sentences that would run
concurrently, and in which would be suspended and probated. Relator raised
the claim of the unkept plea bargain by Pro Se Brief on direct Appeal.
Hhich was never considered on Appeal due to the Court of Criminal Appeals
setting asside the cumulation order and deleting it as ineffective. However,
on rehearing by the State it was restacked and Relator has did the whole
sentences as stacked and Relator has suffered the full prejudicial harm by
this cumulation order on rehearing. See Gordon vs. State, 575 S.W.2d 529,
at 534-535 (Tex. Cr. App. 1979). Relator therefore concludes that the
correct thing for this Court to rule is that Relator is entitled to relief
pursuant to the cases of La Porte vs. State, 840 S.W.2d 412 (Tex. Cr.App.
1992), and Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993), and Ex Parte
McJunkins, 954 S.W.2d 39, 39~43 (Tex. Cr. App. 1997).
Relator contends that he should be heard on these matters and Relator's
convictions in cause number 10085 and 10238W should be found in error and
grant Relator reversal of these convictions and set them for retrial.
Relator would also contend that this Court of Criminal Appeals should
also set asside Relator's sentence in cause number 22778 as a void
conviction may not be used to enhance an individual's sentence under the
Texas Statute. Burgett vs. State of Texas, 389 U.S.109, 112-13, 88 S. Ct. 258,
260·-61,19 L.Ed. 2d 319 (1967). See also Martinez vs. Estelle,612 F.2d 173,
175 (5th Cir 1980), as Relator also claims that Relator's Counsel Larry M.
Thompson at the 1980 trial was ineffective because he failed to investigate
the validity of Relator's 1977 convictions, and that he wrongly advised
Page 21.
Relator to plea true to the enhancement counts of cause number 10085 and
10238W without explaining to Relator what the plea .of true intended and
it's consequence and failed to investigate the void convictions and he
allowed Relator to be enhanced by the prosecutor whom used the 1977
convictions for enhancement when he should have known that they were
void convictions. See Cook vs. Lynaugh,821 F.2d 1072 (5th Cir. 1987); See
also La Porte vs. State, 840 S.W.2d 412 (Tex. Cr. App. 1992).
And lastly, Relator's sentence in cause number 13~472, should also
be reversed for resentence, as Relator was wrongly enhanced by cause
number's 10085 and 10238W as they are void convictions pursuant to La Porte
vs. State,840 S.W.2d 412 (Tex. Cr. App. 1992), and Ex Parte Sims,868 S.W.
2d 803 (Tex. Cr. App. 1993), and Ex Parte McJunkins,954 S.W. 2d 39,39-43
(Tex. Cr. App.1997); See also Martinez vs. Estelle,612 F.2d 173,175 (5th
Cir. 1980); See also Spencer vs. Texas,385 U.S.554~ 87 S.Ct. 648,17 L.Ed.
2d 606 (1967).
In Ex Patte Stuart, 653 S.W.2d 13, the defendant challenged
conviction, and the prior convictions used to enhance it, through
numberous applications for writ of habeas corpus Id. At one point,we
cited Stuart for abuse of the writ process Id. Seven years after his
conviction, Stuart, again sought habeas relief challenging the use of
the prior conviction to enhance his sentences. Id. at 14. We found
that Stuart's claims had merit in light of changes in the law following
our affirmance of his conviction. Id. We then held that under Cooper vs.
State, 631 S.W.2d 508 (Tex. Cr. App. 1982), and Ex Parte Augusta, 639 S.W.
2d 481 (Tex. Cr. App. 1982), Stuart was entitled to relief retroactively.Id.
653 S.H. 2d at 14 .. 15.
Thus it is readily apperent in light of Schuessler and Stuart, that
previous litigation of the issue does not necessarily bar it's reconsideration
Page 22.
on habeas corpus. See Ex Parte Drake, 883 S.W.2d 213 (Tex. Cr.App.1994).
See also Ex Parte Lemke, 13 S.W.3d 791 (Tex. Cr. App. 2000).
Relator has wailed like a stuck pig for years Hhile this Court has
denied Relator an opportunity to be heard by this Court on Relator's
convictions in cause number 10085 and cause number 10238W, as being a
unkept plea bargain.
The Coprt's have performed such serious surgery on the great Hrit,as
it applies to postconviction habeas corpus proceedings.
This Court should not forget what the Supreme Court of the United
States previously pointed out in construing the habeas corpus statutes.
;'While the rhetoric celebrating habeas corpus has changed little over
the centuries. (footnrite deleted), it is neverthe less true that the functions
of the writ have undergone drastic change ...
11
(H)abeas Corpus is not a static, narrow, formalistic remedy", Jones vs.
Cunningham,371 U.S. 236, 83 S.Ct. 373,9 L. Ed. 2d 285 (1963), but one
which must retain the ability to cut through barriers of form and
procedural mazes': (Citations Omitted). The very nature of the writ demands
that it be administered essential to irisure that miscarriages of justice
within it's reach are surfaced and corrected. (Citation deleted). Thus He
have consistently rejected interpretations of the habeas corpus statutes
that would suffocate the writ in stifling formalisms or hobble its
effectiveness with the manacles of arcane and scholastic procedural
requirement". Hensley vs. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571,
36 L. Ed 2d 294 (1973).
Our habeas corpus law(s) has always been available to obtain release
of any one who is unlawfully restrained of his liberty. See also Ex Parte
Lemke,13 S.W. 3d 791 (Tex. Cr. App.2000).
Clearly the failure ~o hear the merits of Relator's Unkept Plea
11
bargain agreements would work a 11 Manifest injustice , as there is
Page 23.
controlling authority in the interim that have made a contrary decision of
law applicable to the disputed issues. Falcon vs. General Telephone Co,815
F.2d 317, 320 (5th Cir. 1987); See also La Porte vs. State,840 S.W.2d 412
(Tex. Cr. App.1992), and Ex Parte Sims, 868 S.W.2d 803 (Tex. Cr. App. 1993),
and Ex Parte McJunkins,954 S.W.2d 39, 39-43 (Tex. Cr. App. 1997); See also
Ex Parte Lemke, 13 S.W.3d 791 (Tex. Cr. App. 2000). Plain error was committed
which, if not noticed, would resuLt in a manifest miscarriage of jmstice
Coughlin vs. Capito Cement Co,571 F.2d 290, 297 (5th Cir. 1978); See also
Klapprutt vs. United States,335 U.S. 601, 69 S. Ct. 384, 93 L. Ed. 266 (1949).
As there are no time restrictions on a lawsuit of this kind, Relator
may apply for the writ any time Relator feels the burden of multiple
convictions are more than Relator can bear.
Relator requests that this Court grant the Mandamus 1 and application
for writ of habeas corpus; order Respondent to show cause why Relator
should not be set at liberty; give a plenary hearing to determine the
facts; and order production by the State of such documentation as may be
necessary for the proper determination of this cause. Relator further
prays that after determining the facts herein, the Court order Relator
freed from further restraints upon his liberty, order cause number 10085
and cause number 10238W reversed for a new trial in each case and order
Relator's sentences in cause number's 22778 and 13,L~72 reversed for new
sentencing hearing in cause number 22778 and cause number 13,472 and order
Relator completely discharged from illegal custody of all Court's and
cause numbers and end Relator's illegal confinement from any further
custody or confinement.
:;``ed,
Robert Gordon TDCJ-ID#319173
~·Jynne Unit
810 FM 2821
Huntsville, Texas 77349
Page 24.
I, Robert Gordon TDCJ-ID#319173, being presently incarcerated at
·the Wynne Unit of the Texas Department of Criminal Justice--Institutional
Division, in Walker County, Texas, declare under penalty _of perjury that
the foregoing is true and correct. Executed on this ~y of ____________
--``·
_____________________ 2015.
Robert Gordon TDCJ-ID#319173
~-lynne Unit
810 FM 2821
Huntsville, Texas 77349
t:.X "1.L w>- J,. t \
....' -~; ,,
. .
' Exhibit A.
ART BRENDER
· AJtornt7 aJ L:w
· 1417 E.lgbtb Avemu
Prm Worth, T= 76104
Pbon1 (817) 921-3731
'
March 2,· 1978
j
i
'
Mr. Robert Gordon
300 West Belkn_ap
Fort Worth, TX 76102
i
Dear Mr. Gordon: l
1
f
In response to your letter of J.i'ebruai:y 23, I wo'~ld ask -..............~ . ,)
that you have your Attorney, Jeff Kearney, contact-me· "'"---...
concerning the matter. The plea bargains in Judge
.Lindsey'~ Court were, at that ·time, even though not
required by law, placed in the record, and the matters
to which you inquire should be a matter of record.
J
·\
AB:ml
·.,
~-···''·
Exhibit A. --~ .'.
'!'!'
, •. _ ,,.,,.,,,.,, ,... ,..w,~,...1
',".!'·' ·:.,_
" ·· ...
·...~. ·...
......
.··~ .....
·····-··
... _ ..... ~- '· .
:..·
. \
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. ,,
.,. ...... ~·J ' . ,.. _ ...... ,.. -~-·- ...
,.,.~....-... ·•"'~u•Oo•':,..,......;..
'f
'
Exhibit B
lof3 ·?a~es
AFFIDAVIT OF CHARLEY VALDEZ
.t
STATE OF TEXAS
COUNTY OF \V ALKER
BE!~ORE ME, the undersigned, a Notary Public in and for the State of Texas, on this dny
personally appeared Charley Valdez, who, after being duly sworn, deposes as follows:
"My name is Charley Valdez. I am over tv;enty-·one years of age, of sound mind; otpabie
of making this affidavit; and personally acquainted with the facts herein stated.
I am employed as Program Specialist III for the Classification and Records Division
("CRD") of the Texas Department of Criminal Justice-Corrections Institutions Division, and my
office is located in Huntsville, Texas.· I have reviewed time records kept by the CRD regarding
offender Robert Gordon, TDCJ # 319173. CRD maintains these records in the regular course of
i
i
business of every offender confined; and it was the regular course of business for an employee or ................
~·ev.J;:es~ntative to. TDCJ-CID with knowledge of the act, event, condition, opinion or diagnoses,
recorded to make the record or to transmit information thereof to be reasonably soon thereafter.
Based on my review of these records, the following table contains the current sentep,;e
information for Gordon.
Exhibit B 1 of 3 Pages
"'"
/
G'l)rdon, Robert '1'DCJ# 319173 Exhibit B 2 of 3 Pages
Pagt 1
·-··-- ----··------~
~ -.:)ff~eses
--r Coun!.J' T Cause Number Sentence ~c;:;ce--Senlence Begin \ Projected Maximum
I
j ``~:!ory
I
i l
I e Date Expiration
i
Date
~---- ------ I - Daie
i
! Credit C:u-d
r---------·-+
I Abu~.e Tarrant 22778 20``s__ 4-6-1981 6-26-1980 9-25-2037
!' 1I -22-2097c _
t Agw.-u~r~ted
I.A.s.>ault WfDW Walker 13,472 99-years 5-20-1986 Consecutive 9-25.2037 11-22-2097
Consecutive to
L _____ C'.a use#22 778
--
Off.:~ndcr Gordon was received into TDCJ custody on 5-11-1981 from Tarrant County on a 20-year
sentence. Offender Gordon is charged with Credit Card Abuse by the Number Four District Court under
czuse numb~;;r 22778. Offender Gordon is charged for an offense occurring on 6-23-1980, with sentencing
on 4-6-1981, anrl to begin on 6-26-1980.
\i\lhik in TDCJ confined at the TDCJ-Ellis Unit in Walker County, offender committed the offense of
Aggravated Assault with A Deadly Weapon. Offender was sentenced to an additional 99-year sentence by
,
~­
the 12111 Judicial District Court under cause number 13,472. Offender Gordon is charged for an offense
' occurring on 10-16-1984, with sentencing on 5,..20-1986, and withjail credit allowed from 10-16-1984. This
changed the net sentence from 20-years, to 119-years. The offender under cause number 13,472 is eligible
for mandatory supervision, but is flat calculated for parole eligibility. Offender has a current parole review
date of 11/2.009.
On 10-16-2001 pre-sentence jail credit.s of 5~1-days was applied on cause number 13,472. The cumulative
~e:1t::::~-;;~ bt:gin date was changed from 6-26-1980 to 11-23-1978 due to the 581-days of cumulativ~ jail
:::redits pursuant to Ex parte Bynum, 772 S.W.2d 113 (Tex. Crim. App. 1989).
Prior to 1987, sentences were aggregated according to statute. Article 6181-l, V.T.C.S., Sec,l(4) Defining
"term" provided: ''\\'hen two or more sentences are to be served consecutively and not concurrently, the
aggregate of the sentences shall be considered the term for purposes of this Article." The statut~ry
demarcation for purposes of consecutive computation was discussed by the Court of Criminal Appeals in Ex.
parte Hannington, 832 S.W.2d 355 (Tex.Crini. App. 1992).
This is a record of offender's time earning status's to show promotion and demotion dates: ( iI
; '
Nt1TE: Effective April 1, 1995, the practice of backdating was discontinued per Board of
f /
.,-c_orr_e_ct_io_~ Polic::,!y~:____________________....:....._____________
\ 11 23 1978 TO 06 13
' ;:) os 1n2 TO os 22
1982 RATE: S4 I 06 14 1982 TO 10 04 1982 R,ATE: L2
1983 RATE: L3 i os 23 1983TO 01 o9 1983 RATE: L2
I ·.. ``{
l 07 10 1983 TO 10 25
: O'i 11 I984 TOD5 31
1983 RATE: S4 11026 1983 TO 05 10 1984 RATE: L2
1987 RATE: L3 I 06 01 1987 TO 09 29 1987 RATE: L3 B
I 09 30 t987 TO 12 21
! 03 23 198& TO 12 15
1987 RATE: L2 B 112 22 1987 TO 03 22 1988 RATE: 84 B
198S RATE: L2 B 11216 1988 TO 07 24 1989 RATE: L3 B
. I 07 2S 1989 TO 10 24 1989 RATE: L2 B 110 25 1989 TO 05 10 1990 RATE: S4 B
--l 05 ll 1'!90 TO 08 06 1990 RATE: L2 B I 08 071990 'FO 01 21 1991 RATE: L3 B
.., _: 01 22 l99t TO 04 22 1991 RATE: L2 B I 04 23 1991 TO 08 16 1991 RATE: Ll B
J \\
....t.
, 08 17 1991 TO 09 30 2001 RATE: L3 B 110 01 2001 TO 10 09 2001 RATE: L2 B \
I 0 I 0 2DO 1 TO 06 03 2004 RATE: L3 B I 06 04 2004 TO 02 10 2005 RATE: L2 B . \
I
J
02 I 1 20t)5 TO 09 28 2006 RATE: L3 B 109 29 2006 TO 03 28 2001 RATE: Ll-B
, (;} 29 2t)07 TO RATE: S4 B ! . TO R.>\TE:
i -----· ----- ---- --
1 i
/
L---- . /
!
Exhibit B 2 of 3 Pages
1
'•
\ .......
··.--.
Gordnlli., :\ld:•c:d -rnc.m 319173
Exhibit B 3 of 3 Pages
OHender Gordon completed his GED on 6-1 ~ 19S7 and was awarded 60-days of good time credit on
<.;.. '3--1987. OtTender has a total of30-years, 1-month, and 23-day:> of flat time served, 12-years, 2-months,
;1.nd :+--days of good time, and 1-month, and 30-: 1ays of l;C!'tUS time credit~.
r
-~ in administrative segregation shall be awarded only the amount of good conduct time
{;;~·;;c.Luiers
credit based ou their time-earning status, for as long as they remain assigned to administrative
segn~gation. status. These offenders shall not be awa1·ded the "diligent participation" good conduct
i·fme C.!redit.
Pursuant to TEX. Gov'T. CODE § 501.0081, this office received a time dispute resolution forms frcm
of'fender on 7--12-2001, a:nd responded to the offender on 10-16-2001. This office responded to the offt>nder
fbM tbere wa.c; no error in his cun·ent time calculations. The offender was further advised that if he was
dis:;:~t~di.ed with ~his response that he should contact State Counsel for Offenders :tor further assistan6e.
. '
CHARLEYV · Z
~-
Program Specialist ill
Classification and Records
Texas Department of Criminal Justice
Corrections Institutions Division
SUBSCRIBED AND SWORN TO before me, the said Notary Public on this the 15th
day of January, 2009, to certify which witness my hand and seal of office.
\ I
y
:v ..
Notary Public In ;md For
The State of Texas
/
I
/
//
I
2 /
Exhibit B 3 of 3 Pages l
. . . ._ _ \.
!
~---
··,,_ \
"- '
c--``'."'L
'"'
Exhibit C 1 of 2 Pages.
~-
EX PARTE ROBERT GORDON
Habeas Corpus Application
WRIT NO. 10,271 From TARRANT County
0 R D E R
This is an application for a writ of habeas corpus which was
submitted to this Court by th~ trial court pursuant to the provi-
sions of Art. 11.07, V.A.C.C.P. Ex parte Young, 418 S.W.2d 824
(Tex.Cr.App. 1967).
In 1977, the applicant was convicted of the offenses of
unauthorized use of a motor vehicle and theft in Tarrant County
cause numbers 10085 and 10238W. Punishment was assessed at impri-.
sonment for four years in each case. These convictions were
affirmed on direct appeal. Gordon v. State, 575 S.W.2d 529
(Tex.Cr.App. 1978). In 1981, the applicant was convicted of the
offense of.credit card abuse in Tarrant County cause number 22778.
Punishment, enhanced by proof of the prior conviction for
unauthorized of a motor vehicle, was assessed at imprisonmeni for
20 years. This conviction was affirmed on direct appeal. Gordon
v. State, 638 S.W.2d 654 (Tex.App.--Ft. Worth, 1983).
In his present application, the applicant contends that there
was a bona fide doubt as to his competence to stand trial in 1977,
as well as to his sanity at the time of those offenses. This
application, however, presents a more serious question. This
Court's records reflect that, in addition to his direct appeals,
the applicant has filed five previous applications challenging
one or more of these convictions.
It is obvious from the record that the applicant is con-
tinuing to raise issues which have been presented and rejected or
should have been presented on direct appeal and in his prior writs.
'.!'~r.::_ •·:.r-~t. of hab.':as corpu~ .J? tooQ
..
~§_ed.ous
. - - ..
and important
·--.,.:_. __________ ........ ---":
~---·.......!-. ~---- •
a matteor to
. ---. . - .
be lightly and easily abused. See Ex parte Carr, 511 S.W.2d 523
0
(Tex.Cr.App. 1977); S.:tnders v. United· States, 373 •u.s. 1° (1963).
Seeoalsoo Smith v. Estelle, 562 F~2d 1006 (5th Cir. 1977}; McDonald
v. Estelle, 590 F.2d 153 (5th Cir. 1979}; Potts v. Zant, 638 F.2d ·..I
·,
727 (5~ Cir. 1981); Hansen v. Estelle, 641 F.2d 250 (Sth Cir. 1981)
(delayed applications).
Exhibit C 1 of 2 Pages .
.... , __
Exhibit C 2 of'2 P?ges
~
EX PARTE GORDON (P;;;.ge -2-]
We hold that the applicant's contention is not only without
merit, but has been waived and abaondoned by his abuse of the writ \
of habeas corpus.
Therefore, the Honorable Thomas Lowe, Clerk of the Court of
Criminal Appeals, is not to accept or file the instant application
for a writ of l}a,peas corpus. He is also instructed not to accept
in the future any applications for writ of habeas corpus att~cking
these convictions unless the applicant has first shown that any
contentions presented have not been raised previously and a showing
is made that they could not have been presented in any earlier
. 1/
application for habeas corpus relief.- Ex parte Dora, 548 S.W.2d
392 (Tex.Cr.App. 1977); Ex parte Bilton, 602 S.W.2d 534 (Tex.Cr.
App. 1980).
IT IS SO ORDERED. this the 25th day of l4ay, 1983.
PER CURIAl4
En bane
1
In Ex parte Dora, supra, this Court expla~ned the duty of the
trial court ~fter the entry of an abuse order as follows:
Where a petitioner has been previously cited for
11
an 'abuse of the Great Writ, • the trial court
should not thereafter consider the merits of any
application for writ of habeas corpus filed by
that petitioner. The trial court should, however,
review the application and make findings that this
petitioner has abused the writ in the past, thus
making the review procedure of this Court more
efficient. The transcript should be forwar.ded to
this Court, just as in all other cases, pursuant to
our automatic review jurisdi~tion. SeP Ar~. 11.07,
Sec. 2 (d), supra. The wri.t· i:!"an~n;r·ipt--should, of
course,. be forwaJ::ded to· this Court within fifteen
days of the trial court's order. See Art. 11.07,
Sec. 2(c), supra, ..
p
A True CoPY
At'e~t:
Thomas Lo" ' . of Te'l.a~
eourt ot
ay;
Exhibit C 2 of 2 Pages.
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'"'"i.'el':phone: _Z:.!-1- !.f}?l) 0 f~: ) IIv 1.:r;;: 8:00 l\. M. to -t :!.$0 P. ?IL 2':Ion~by ~hrough ,Frid~yE~ni bi ~ ···o 1 ~g
- ••
. · '
. COND.ITIONS OF _,PRO. BA-Trn:N: . .. .::::?
.
TILB STATE OF T:S:US 1~ CRE-ITN.t1.L DISTRICT COURT NO.:...·_,..,<_
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VS. NO. / v - v-- 1 TARIUu\T COUNTY, TEXAS
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.In.;~:;:ord;.:~nt.:~ with tbe auth·Jrity confc.:lTe:r! by the Adult Pz·obation and Pnrol~ Law of the State of 'l'ex~,
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l· ~n! be-=n placcll on Prol):'.l;ion...s>n tl1 i::, ___ · .-:.``" dav of_·___ /1ct:t..11
· ·_/_/ 19 .77 for a nerri.d of
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-:re:n·.::, for th·~ offense of (_~"< 1~ 1 7>: r :_."t ,;::.t:-::.'} i./..:; .!.c ,.c 17 //1 c.;c: n,.:- V:.;-/11
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Judge, . · .;>
Cr1minal Distrid Court No ...=.;..!_):=;..._.----.
·.:-.:-tt County, Texas. .
1t h t.~e ORD:::.?. of the Court thri.t you sh~l comply with the following terms ~:-:d coaditicms of Prob1Ltion:
· or.mut no offt>_m;e nininst the laws of this State or nn~r other State or the Unit-ed St<~.tes;
:;oid injurious or ·vicious habits;
~oid persons :t.r.cl places of disreputable or harmful chort to the _td~tlt ProbCI.tion Officer of T~lTnnt'Connty, Texas, on the Clay of--},A·~_,..;...l?:~J~=·::.. _____
;'7~ -~ j-1.... '
-------------___,._, l9...L.L, ancl on the ---'-~--day of each month thereafter, during
robation; . ·I
ermit the Prohntion Officer to visit you at your horne or elsewhere;
iork f~it!-lfully at snitnble employ:ment :-~.;; far as possible; ·
.~::m::lin v.ithin the limits of T:•.rrant County, Texas, unless given pennission by the Tarrant County Adult
~bation Officer to leave therefrom; ·
.piYJrt :rour dependents;
·oLify the Adult Probntion Officer of Tru."Tant County, Texas, if your address or employment is changed.
·i;:hin fi-.-e d:lys from the date of change;
'I
!
<: t0 nr.d though the Adult P.robation Officer of Tarrant_ County, Texas, the following:
~- -~
1'7t. . {iJ / /) {lc- "'1..-. ..,...../
. CO~"'TIT COST in the amount of S / 1• , at the,J;n.te of $,_./''---t...._.. _ _ _ per---L.. , . .l.·!.'Jt.Lr-.'
. :
-.,tl:'2 fi:-;;t p, "TT"1Cnt to be made on the /,-.fl._ day of '-.\~L/-1-t t' • , 19_22, and a like payment
_)':.,tile-,- ,_:;-/.... da! of each month there;{ter until ful{~ay:t:n~·!)t is made; \\
. t't,OBAriO::, FEE m the a.mount of$~ Oo on the {· f/._ day of_ _+.'-}-:.w·f.:=:.t.~r::.!-i!..,_:....- - - - . 19~.
~ncl on t`` ~-- fl.._ .cby of each month thereafter during Probation; fJ
TIESTITL"TIO:"r in the amount of $ · t the rate of $ ' - - - - per_ _ _ _ _ _ __
t!u~ fint P<'-.rment tv be made on the da.y o , 19----. and a like payment
on the dny of' each month. thereaftef until full pa~·ment is made;
FDiE h tlte amount of$ at the rate of$ · per :the first
P"-}'ment to he made on th day of , 19----. and a like payment on the
._ _ _ _ clay of each month thereafter until full payment is made;
3t•bmit to a period of detention in the County J2.il of Tarrant County, Texas, to serve a term of irnprison-
nent of clnys, to begin on the.. clay.of 19-
FILED .
CRI:.tlN/.L GlSTRICT COURT No. g
.TA;t;;.!.:;i COU~n. TEXAS
"L"·'.'·l•J
,,, •.~' ,_ ·~77.
I.JI
\ J \., BOOR'J\~,'-\• r·•'1.
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You are advised that under the la>vs of this State the Court has determined and imposed the above termC `` ,,
conrlitions. of your Probation, an~ may at :my ti~e during the period of Probation alter or nin_e At>t.icle 52~1, See Mat~baei vs. 'Cla).:'k;(Sup.19&9)
1,1.<( Tex. 114~ 216 S.t-1. 856; EX f'AlTE ,BROOKS,(('~!' App 1986) 722 S.• w. 2d 140.
See $lso Dalla$ Area l«.rpld bans&! vs .. Amalgamated Transit Union
L174 L. Ed. 2d 284. See also Martin vs. Hamlln,- ... -25 S.~1. 3d 7li8' (Tent.
·Cr. App. 2000)tSee also ~tate Ex. eel. Healey vs. MeMeans,-·884 s .. ~h 2d 772
(Tex. C~-· App. 1994); EX, PARTE Rodri,gue.a vs. Copr.t of Criminal Appeals,
9seti:onar.y in
nature,. Bt-axton· vs .. · Dugn,~so3 S.W~2d $18; 320 (Tex. Cr. App. 199i).. An act
'' 1• . • .
... .
~
•
.
';//····!:·-.•
judgment·.,. • Texas ·Dept. of CO'f'reettons V'fh Daleb!te,6-23 s.v. 2d: 20 1 24
(Tex. ,.Cr. App.o · 198:1).
i·
The COurt of Criminal Appeals and each judge tbeveof shali. have, and
· is here'b¥ given, the· ~t;1ett and autb~ ·.would. be
allowed, .and·sha.ll be pcldittetl .to wt-.t.bdraw.,Belator*s pleas: of guilty.
Howevcut. at. the p0i~t in whleh Jud$ct. Lindsey beard the revocation of
pwobat,on beazoing he ~.taolted _cause· n,umbe:rr 102381i c.a top of cause numbet"
10085, tbe:reby vejf!C~laa the plea -ba~3atn
' .
t\gteements. ' ~ . '
Page 3.
These plea bargain agreemettts were consolidated and tried at the same
time as Relator plead guilty to both offenses at the same time in ~ause
number's 10085 and 10238W. To provide evidence of this fact Relator would
point 'this Court to the faet in ord$r for Judge Lindsey to be able to
consolidate these cause number•s 10085 and cause number 10238W.· Relator
had to waive Relatol:''s rights to indictment in which Relator did in ord~r
to recive the two cause's 10085 and 10238W to be tried together at the
·same time, so Relator could reeeive·concurrent setenees otherwise Relator
would not of waived Relator's rights to be indicted first before the Court
could. proceed on both cause's 10085 and 102389, as the Court lacked
jurisdietion for: trial of both cause's at that time. Relator would fuetber
argue to this Court that Relator is actually innocent of committing these
offenses of Theft in cause number 10238W and Unauthorize Use of a Motor
Veb~cle tn cause number 10085.
Relator would show this Court that ·beeause of the serious eollateral
consequenees arising from a conviction fo11 felony theft the doetri·ne of
mootness does not prohibit this eollateral attao.~. See Ex Parte Guzman,
551 S.tV.2d 387 (Tex. Cr. App.1977); Ex Parte Burt, 499 S.W . 2d 109 (Tex Cr.
App. 1973)$ Ex Parte Jentseb,510 S.W.2d 320 (Tex. Cr• App .. 1974); Ex Parte
Langston, 510 s.w. 2d 603 (Tex .. Cr. App. 1974);See also Ex Part.e Hare. 561
S.W.2d 180 (Tex. Cr. App. 1978).
Relator would contend that it is well settled that a habeas corpus
Application Applica.nt meets the statutory '•tn custody"'requirements when,at ·
the time he files the petition be is in eustody.pursuant to the conviction h~
-attacks or he is in c.ustody pursuant to another eonvictton that is positiv``y
'
and demo~strably related to· the convictions be attacks .. See Carter vs.
Proo~nier, 75S F.2d 1126 (Sth Cir. 1985)1 See also Carter vs. Estelle, &77
F.2d 427 (5th <;il'. 1982).
Page 4 ..
Relator would assert that Rel$tor is confined pursuant to a May 20th
1986, conviction for aggravated assault in causa number 13,472, wherein
the 12th Judicial District Court of Walker County, Texas, upon plea of
not guilty and jury trial, Relator was found guilty and punishment was
assessedby the jury at 99 years imprisonment and ordered to run
cori'secutively with the sentence Relato~· wa$ assessed upon. conviction for:
credit card abuse of 20 years imprisonment as punishment 1n.c.ause number
22778-. ThElrefore, Relator's present confinement is set at 119.years
imprisonment. Punishment enhanced by proof of tbe pt'ior eonvic~ions in
c.ause number 10085·and cause number 10238W in both convictions in eause
numbers 22778 and in cause number 13,472, that Relator is now confined on.
However, in cause number 22778, Relator plead true to the enhancement
Count's ·cause number 10085 and cau.se number 10238W. Therefore q Relator.
would show that Counsel at t:he 1981 trial was ineffect·ive because he failed·
... , ·~.
to inves,tigate the validity of Relator • s 1977 convictions that the prosecutor
·" ,.
'
used .the 1977 convictions for enhancement eounts when he should have··known
... ~
that ·it was void. See. v.T.C .. A.Penal Code 3.03.
A defendant may not by agreement t'ender legal·a punishment which is
not·. otherwise authorized by law. Heath vs. State, 817 S.W.2d 335 (Tex. Cr.
App• 1~91). In e.ireumsteinces sueh as R$1ator•s usentenees.shall ~t~n
eo.ncurrently': v>r.c.A.Penal Code 3.03. This language creates an·,:absolute
testrietion of a. tria;!. eo·urt 's genc;!ral authority t" impose- eons.eeutive
sentences. See Wilson vs. State.677 S.W.2d 518 (Te~. Cr. App. 1984). A
defect which rei;lders a sentence void may be rei.sed at any time. E2e. Parte.
Mc.jvert.586 S.W.2d 851,. 854 (Telt· Cr. App. 1979); Ex Parte Shields; .550
, S.W~2d 670, 675 (Tex. Cr. App.1977).
.... Cl~arly; La Porte Yfi!._~ State 11 840 s . w. 2d 412 (Tex~ Cr. App~ 1992), Leaves
·~,·
no doubt, on the State of .the law in this aa:ea of the law.
Page So
See also Ex Parte Sims,868 s.W.2d 803 (Tex. Cr. App. 1993). and Ex·Parte
McJunkins, 954 S.W.2d 39,39-:-43 (Tex. Cr. App.1997); See also Cook vs.
Lynaugh, 821 F.2d 1072 (5th Clr-. 1987~; See also Hlllvs. Lockhart,- 474
U.S. 52, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203(1985). As Relato.v clearly
t '
had a plea bargain for concurrent sentences in eau:~-e No's. 10085· and .
10238W. See attachment hereto· of Exhibit uA u: ~::· ineorp~rated herein for all
purposes. Clearly Relator is entitled to reversal of the convictions and
sentences.
Relator suggests the proper stemedy in ~ause number's 10085 tlnd 10238W
should be found to be void under La 1orte VSh.State, 840·S.W.2d 412 (Tex.
Cr. App. 1992); and Ex Parte Sims 868 S .. W.2d 803 (Tex. Cr. App. 1993); And
'·
Ex Par'te McJunkins, 954 S .W.2d 39-43 (Tex. Cr. App. 1997), and remand
· back to ·the trial Court for new trial, relying on these above described
Court deeis.ions and in cause number'"s .22778 and 13,472 . these s-entence's
should be reversed for resentenee without the void c.onvic:.t.ions 10085 and
10238W being used for enhancement Counts purposes. As a matter of the law.
See Burgett vs •. State of Te,;as,389 U.S. 109, 112-13, 88 S .. Ct. 258, 260-61,
19 t.. Ed. 2d 319 (1967); Zales vs. Henderson, 433 F.2d 20 (.5th Gir~ 1970):
Martinez vs. Estelle,612 F.2d 173 (Sth Cir. 1980); tarter vs. Estelle, 677
F.2d 427 (Sth Gir. 1982); See also Cartel!' vs. Procunier1S5 F.2d 1226 {5th.
Cir. 1985); Cook vsh Lxnaush,821 F.2d 1072 (Stn. Cir: .. 1987).
v.
THRESHOLD QUENTIONS
Several preliminaty issues will be raised whieb must be considered
before the issue$ are revte\ted on there me~its; tbt.s bas the effect of
making thie case ~oll'e complex than the issues of complaints "'U~kept Plea
Bargain agreements and void stacking of the sentences-in cause numbe1;
10085 and 10238t-1'\ which cl'umged Relator's punishment from a total of
four (4) years maximum to a eight (8) year maximum. prison sentence. See
t .'I'·~
Page 6.
Attachment hereto of Exhibit na`` 1 of 3 pages· in·corporated herein for all
purposes. Relator did the whole eight (S).yeat:s t~;~aximum sentence~
A EXAMINATION OF THE ATTACHMENT Exhibit "B" is a ·affidavit of
Charley Valdez, at page 2 at the bottom of the page le a record of
Offender Robert Gordon TDCJ•ID#31917.3 time earning status's to shovr
promotion and demotion dates! ·~Which shows Relator was between 11•23-
1978 to 06~13•1982 a 54 Trusty Line Class~' S4 Status earns 30 days for
every 30 days done and earns additionally another 30 days good time. A
total of 60 days for time earning status, Time line class whieb equals·
all time earn for that period. Tbts chart 1n this box. also shows
from tO•OS-1982 to 05•22-1983 that 'Relator was Line class 3, whieh does
not earn any time of goqd time status, this time period only earns day
for day time earning status, which means no good time eat!'n. the c.hart
further -.shows that Relato~t was Line 2 status from 05 ... 23-1983 to 07-09·1983,
this time earning status earns day for day with only io days added for
good time status .. A line I Status earns every 30 days he receives 20 days
good time earning status. The nan Status earns a extra 10 days for every
30 days that Relatott is Line I Status.
Clearly 9 there is a chart showln& that fte,lator was continually
confined between 11•23-1978 to 03-28 ..07 .. Which shows Relator discharged
the original. 19?7 convictions and the 1980 comtieti~n up to tbe date
and begain serving the 1994 conviction up to the date Relator is still
confined under.
The chart above described clearly shows Relator completed the two
four (4) year sentences as stac.k by Judge Lindsey. Therefore. itelator suffer
the punishment of ~be prejudicial stacking of the two four (4) year sentences
and Relator has completed doing the eight (8) years sentence :i.t1 full.
Tberefot:e, Relator seeks to wtthdrav Relator's pleas of guilty ln
Page 1.
cause number's 10085 and 10238W and be able to plea again; Anew to not
gtiilty io a~c.curclance to ~he prejudleial P~:Jnishment of the· Eight years
that Relatow had to do, in violation of Re1ator 0 s oa:iginal plea bargain
agreements of the (2) four (4) yea~· c.oneurre~t sent.eneing. La P.otte vs.
State~,- ·840 ·S-.\f.2d 412 (Tex. Gr. App. 1992); and Ex Parte Sims,.868 s.w ..
2d 803 (Tex~ Cr. App .. l993); And Ex Pawte t4cJunktns_,954 .s ..t:J .. 2d .~l9•43
(Tex •. C1r.·. App. 1997) ..
Relator was cited fott abuse of thta wt-it pi'~Qcess puzrsuant to an order
of the Court of Criminal Appeals,~.'.;... -~: t4ay 2~tJa,1983 .. Said Orde~ is attaohed
as. Exhtb)it ''C'~, ineorrp.orate4 herein for ali pu~pose~.
Rela.tor states that; as set out in RelatoJ! 9 S original Appli~ation for
habeas corpus, RelatoJ: has not. been provided Wit~ the opportupity' to
e~U.eng~ the eat~lier convictions ln number's 1:0085 and 10238\l, on the
. ;~ -,..
issues now present.ed due to the faot tltat the only issue· on Relator's prior
. Appeal proffered by Counsel Jeffrey A. Kear11ey was the issue of the Judge's
authority to cllllinlulate Relator• a sentenc.es. In thls Appeal Counsel Jeffrey
A. Kearney received a prot.ta'ble deoision by the Court of (.il!i;minal Appeals·
in it ``s opinion by the Court OJ!'4e~ring tbe cumulation lieeltals in tbe
l . .
sentences in ~ause tmmbet" 1()238W\at:e ineffective and ate tbetefore orde~ed
deleted therefrom, under the ·Goua:t•·s deeision in Ex, Parte 'Rf!lnolds,462 s~w.
2d 605 (Tex .. Cr •. ApJh 1910). However, the ~u't dtan•t. stop th~re,.lt went on
to. state; .,Finally, we have l.!ev.iewed the Appellant* a pro \se allegations
and we· find them to be without IDertt•: Se& Go'tdon vs. S§B!9 575 S.Wo2d
529, at 534 (Tex. Cr •. App~ 1978).
Relato~t- ral$~d in ,Relator's h4;·J Se ailegation' the comricti~n snq
sentE!nces. ti'ere based on i••untte_pt Plea Bat:gain Agreements ....
,'··
Relator would fu:r;ther show the Gout:t that Relator ftled two (2) writ•s
of habeas corpus wh1'1e Appeal was still pending. before thtl Cou17~ of
'!·./···/
Page 8.
Criminal Appeals, which Judge Lindsey O:t'de~ed Relatorts two (2) tn-its of
habeas corpus to be forwarded to the Cou11t of Criminal Appeals to be
treated as pro se brief's on Appeal, ·pew order of the Judge Lindsey.
Upon review of these Pro Se Brlef•s on Appeal• because the Court
of Criminal Appeals entered into a judgment in Relator's behalf by
ottdertng the cumulation of cause numbe~ 10238\1 as being ineffe4:.ttva and
therefore ordered d~leted therefrom. and ordering the reformation of the
sentences of cause number's 10085 and 1023SW to be t"an concurrently. See
Gordon vs. State,575 S.W.2d 529, at 534 (Tex. App. 1978).
Relator's pr:o se brief's were never reached on there merits beeause
the Court of Appeals was ordering the reformation of the stacking order
of the'Clourt Judge t.i.ndsey. See Gordon vs. State. 575 S.W •. 2d 529, at
S34 (Tex. Cr. App. 1978), and thts i.s why tb_e Court found Relator•·s "Unkept
plea bargain agreement' c.lalms in the pro se brief•s to be ~dtnout merit,
because the Court off Criminal Appeals was li'eforming the stacking of the
sentencesn.
So, Relatol' didn•t suffer no prejudice, as Relator was.having Relato~r•s
original plea bargain agreement enforced by the Court of Criminal Appeals
ordering the reformation of the sentences of cause number 1008S and
10238\~ to be ran concurren~'lY· Gordon vs. State,575 S.Y.2d 529, at 534
(Tex. Cr. App. 1978).
However, the State filed a Motion for Rehearing within tbe Texas
C9urt of Criminal Appeals under its rules, ordered a rehearing, on the
$tate's filed Motion. for Rel'\ea:r:lng. The Rehearing was granted, and that
part of the original opinion deelarini the eumulation order invalid and
reforming the sentence is set aside and the judgment including the
cumulation orders are now affirmed. See Gordon vs. State, 57S S.Y.2d 529
'····1·.
at 534 .. 535 (Tex. c,. App. 1.979).
Page g·.
Relator.has di~ the (ull sentenees as staeked and has fully completed
the sentences as stacked due to the Co1.1rt of Criminal Appeals opinion and
decision. See Gordon· vs. State,S75 s.W.2d 529, at 534·535 (Tex. Cr. App.
· 1:979). So, Relator has suffered the prejud1eial ha;m of the Court of
Crtminal Appeals opinion and deei.sion Qn rehearing. See also Exhibit "B";
the affidavit 'of Valdez.
Relator would further point out to the Court that on direct Appeal
Counsel J(;!ffrey A. l575 S.W.2d 529, at 531 ... 534 (Tex~ Cr. App. 1978).
Furthermore, the Assistant district attorney also gain advantage by
his false arguments to the Coutt of Criminal Appeals by that Court eiting
Relator for writ abuse in Relator • s fitcst writ.. of llabaas CQt'{>US that was
. -~- • .f~ . . .
considered at that time and ,"·._:;·:;·c;:~ttas been denied the ability to ever
file 'another writ. of habeas corpus since the Assistant di.sttriet attorney
made his fraudulent arguments that got the Court of Cri_minal Appeals ~o cite
Page 11.
Relator for wt"it abuse. See prior writ abuseattached b~reto as Exhib1t nett
incorporated herein for all purposes.
Sabsequently; the State filed a Motion for rehearing within the Texas
Coul;'t of Criminal Appeals under the Rules. ordered a rehearing on tl\e
State •s filed Motion for rehearing. The rehearing was grat;tted, and t.hat ·
pa·rt of the original opinion deel.ar,ing .the· c.uml.llati.on set aside is now
E'¢Versed and the judgment including the eumulati.on order are now affirmed ..
See Gordon vs. State;575 $.W.2d 529, at 534•535 (Tex .. Cr-. App. 19'19).
Relator would a~rgue to the Court that the rehearing the Cou11t of
Crimina-l Appeals entered into error by relyi!lg on seenoer vs. State, 503
s.-w.2d 557 (Tex. Cr. App. 1974), and .Ex Parte Crawford, 36 Tex. Cr. App.
180, 36 s . w. 92 (1896); Ex Pat:te Ma~ah. 423 s.w . 2d 916 (Tex. cr. App.1968),
And,~" Pa~te Davis, 542 S~U.2d 117 (Tex. Cr. App. 1976),
Relator contends that t'be trial Court erlted in cumulating the senten~es
'b$cause concurrent sentenees awe mandated by Tex •. Penal Code Ann .• 3.03 (Ve"t•
non's 1974)t
Section 3.03 provides:
\Jben the aeeused ls found guilty.off more than
one offense, arising out of the same criminal .
episode prosecuted tn a single criminal action,
eentenees f.or each offense for whleb he bas
been founf Cvimtnal Ap~eals on rehearing erlZed in tbj• it relied on
outdated eases and l·aw ... •
Relato1: would show the Cou~t where a trlal Judge's cumulates and
does lttct'ease punishment after reV'ccatioa, an ad4~t1onal i6lsue is presented:
\t1hether an increase in punishment after: z:evo~atton violates due proc:.ess
umte'" North Carolina Vs• Peatrce 0 395 U.S.711, 89 S.Ct~ 2072, 23 t..Ed. 2d
656 (1969). Cf~ Bovie 11'S• State,56S S .. W.. 2d· S4l (Tex. Cr. App. 19i8);Leehuaa
vs. State,'532 S.W.2d 581 (Tex .. Cr• App. 1975).
:'··-· .
Page t2.
The Court of Clriminal Appeal$ additionally stated in La Pot'te vs.
State, 840 S.W.2d 412 (Tex. Cr. App. ·1992) that:
"An improper cumulation order is, in
essence, a void sentence, and Bu()b
er1ror cannot ·be waived. A defect
which renders a sentene.e void may
be raised at any ttlfte... T~v5 vs. ·
. State,818 s.w.aa 801 < a](. ··~·App.
19§!J. . .
_,....
The La Porte) Court furth.er recognized that "it had vac.atad· impl!oper
cumulation orde'Cs presented for the first tim~ in Postconvie·tion mtita of
habeas -c.orpufll. La -Porte;Sup~a. footnote s. See Ex Parte Asbs;!t 641S.tof.2d
:243 (Tex. Cr. App. 1982), end Ex Parte Vasguea, 712 s.w~ad7S4 (Tex. Cr.
App. 1986) .. See also Ex Parte Siltl:St868 s.t1.2d 803 (Tex. Cr. App.1993),
:·,.
Ex Parte MeJunklns.954 S.W.2d 39, 39•43 (Tex.·cr. App.t997).
Relator contends
~: . . that as a matter of the law the trial Court, as well
.
.
) •. ~
the Court of Criminal Appeals ha_s. et"t-ed in cumulating the· sentenees.
because eoncurrent sentences are mandated by Tex .• Penal Code. Ann-o 3.03
(Vernon.•a·· 1974), as a matter of law. See La Porte •s. Stete,840 s.w.ac:t· 412
(Tex. Cr. App. 1992); Ex.fal:tg·.Sims,868 s~W-.2d-803 (Tea. Ct·. App. 1993),
and Ex .Pa1rte. MeJuntd.ns, 954 S.W.2d 39, 39-43 (Tex. Ct. App • 1997) , in Which
Relatot relies and is entitled to as a matteJ: of law.
Relator's convictions should. be voided -and Relator
·~. .returned to the
trial Court to face these ehatges again.,. ae Relatol!'• s plea bargain
agreements were violated by the Cour-t'and·Relatol!' ha$ already did the
sentenees* as oumulated against Relatos: in cause number•s 10085 and
10238W. Relator: has &uffered the p~ejudieial harm of the ``~eking of the
sentenc.es. Relator should be •ble to withdraw the plEiaS of. gullty, as
Relat.o't wa$·told he would be allowed to do, if Judge Lindsey didn't
el{cept the pleas of guilty. Relator is entitled . to relief under
.
Es
.
Parte . .
Sims, 868 S.tJ.2d 803t at 804-805 (Tex. Cr., App,.,,.t993); §x Parte 'McJUnk~9S: 1
. -~.-,
--Page 13 ..
954 So~.2d 39,39~43 (Tex. C~. App. 1997).
Relator: attempted to file anothet application for writ of habeas
corpus when Relator came aecross the case of. ·La Porte Ys.. Stats ~ 840 -
s.t~. 2d 412 (Tex .. e~. App. 1992); and argtling to t..ha Cou1:ct th$~ theb: bas
been a intet'V'ening change i.n the law which should allow Relato~ the
eonside~:ation o£ anothes: ·ap:pl!.cati.on for wrt.t of habeas corpus. Nowevelt', the
Court again refused_ to.· raear, and in.tertai.n the olai.m for relief that. Relator
should b$ entitled to by the Couttt of C~.>imlnal Appeals.
The C()U¢t should 2:'eliea that theJ:e is 110 new bal!>eas ccr.\')ue clalm whE}I\
a Applicant_ met'ely a$serts thatG·:: a previous t:ul.1ng wbieb .preeluded a met"ite
dat;emination t~as in Eu:ror. There has been no final dete1'mlnat~on on.. thf:1
merits of R~latot:"' s first app1ieation for writ or fo~ that matter .th``$.:'.
basl'l" t>J:>een any eonsiderattcn undertaken by the Couttt of Criminal Appeal&
under 11.07. that bas ever been undezotalten by this Court t.n none of Relatot> 1 s
'•
pttlor applications in any convtc;tlone in cause numbetr • 6 10085 and l0238t~,
'8t\d·· cause· number 22.778 and eauee number 13,472, ·on there merits and theare
bas never been a wtt.ten s:esponse on there merits t it always na.a been on
procedural grounds, sueb as no proper oath 'beins. etven to the application
Which is a requ1s!te to the app11catiotl. See Code of Crimi~al Proeeduwal
requisite At:'tiele 11.14 (5) or Relator had «1 dlreet Appeal pending •s
another procedtaral. ground in keeping Rela.tcr 1 s applications fwm being
hea21d on there me~its ln any of the abeve def.lct'ibed.causes, as it alwa;s
bas been Relator"s pleacUngs we11e deficient as a matter of pl~ading 11 and
denial tdthou.t a Wl!'itten deelsion. The only reasonable interpr:etati.O!l of the
denials of Relator's AppliC.attons by the_)::~qx'as Court o~ ·.~7!l~1na1. Appeals
........ ...... ,.,, __ ,;~,_..._ .
is. that the Cour:t invoked prccedtuural default ana did not tt_ecide the c•ao
on the merits of the Unkept plea bargain ag-reements~ as point:ed out by
RelatoJT.
l "\:'."1 . •
· ~ 'ir) ·~
Page 14.
ARTICLE la SECTION ll.HABEAS CORPUS
4
The writ. of habeas co~pus is a writ of ri.3ht, and shall neve~ be
·suspended. The Legislature shall onset laws to 11$ttder the remedy speedy
and effeetual.o See COde C~:iminal P~oeedure Article t.oa an'd Article 11.07•
Section 4.
lelator woald asse~t to the Court of Criminal Appeals that in Ex Parte
Torree,943 S ...U.ad 469, at 475-476 (Tex. CR. App. 1997)1 "Because tbe.direct
Appeal ~ecord contained insuf.fiei.ent •"'idenee to evaluate the .ineffective
4sslstant of Counsel issue, we hold that the rejection of b1s claim on
dteect appeal doe$ not ba~. re!~tis,atiog of bls .~laim on. habeas eor'PtH~. to the
extent that. Applicant seeks to .gatbetr and 1ntJ:oduee addi.tioeal evidanee not
contained in the dlvect .Appeal recordu.
Relator: has a simila-r claim of ·rev-iew on Appeal. Relator !'aised on
Appeal that the ..pleas· of guilty WGtre based on Unkept Plea ba~rgain ·
,_ ...
1
ag~eements ~. No evidentiavv bearing was eve.:.: entertained by. tt\e,~' Court to
allow Relato1r to deveiope the facts of tbe reC:.oxrd on Appeal. ~eiator vould
point the Court to review Relatort•s tb1hibit "~A" a letter written ·to Relator
by Counsel Art Brender who represented Relatott at thtr pi'ea bargain
u~dertakon by Judge Lindsey.
Clearly, a review of exhibit nA'' establishes:;; by oxamlnatlon. of this.
. .~ ·~ '
let tel:· that llealator bad plea barga.in sgr:eements at the time Relator enterted
a plea of g'uilty which Relatot- was told by Judge Lindsey that be would
-::•''
eseept the plea bar-gain agreements p~ior to excep~aoce of the plea by
Judge Lindsey.
·. :.
This letter by Art 81!'endar to Be'lator shows t.bat upon Judge Lindsey
adding a cumulation otder to cause number 10238\1 and ~taeki.n$ the santenc.e
on top of ¢.auee num'bar lOOSSt Relatot: immediately c.om.plaine4 tc Art ~rende1ii'
of the unkept plea bargain agreements as the letter was written to Relator
by Art Brender in respone.e to Relato~ 1 $ lettelt to Art Brender 4ated
Page 15.
I·'
" February 2! :/1978, that he responded to on March 2.,1978, in bis C'Eulponse he
makes it c.lear "the vlec bargains in Judge Lindsey•s Court were, at that
time,· even though not requia:ed by law-; placed in the reeottd, ·and tbe
1
matters to which you inquire should be a matter of ree.ord· ~See E18lttbit "A••
incorpo-rated be:te1n fo~ all purposes.
Relator would c:.ontend Judge Lindtiley EUtcepted the plea bargato agreements
at that time and assessed two probations of fou~ (4) years that were runntns
eonaurrent.ly.
As, lt is well established that -"here a trial judge does not order that
two seatenees in two different cases shall be cumulative. the terms of
'lmpli'isonment automatically t'un concerrently. Ex Parte Reynolds,·462 S . . W.. 2d
605 (Tex .. Cr. App. 1970); See also Gordon vs Stat.e,57.S S .. W.2d 529 1 at 532
(Tex. Cr.·~;·App,._ 1978).
·"·
1bus, Relato-r argues that sine$ the judgments plae.eing Relator ott
......·
probation did not indleate that the sentences were to be eum'lilated, tbe
attempted cumulation after ~:evocation is lneffeetivo, as JuclgeLindsey
excepted the pleas ,f. gu.llty for two concurrent sentences~ ,whteh ware
suspended· and Relator was plaeed on pt:obati.on for: fout' (4) yatu:,s.
Btlaf)Oe would pot11t . tbts Court to examine Exhibit tlnn attached hereto
lneorporated herein fo~ all purposes. This Eabibit ••nu which instrument· is
entitled ~'conditions of Prebation, irt cause number's 10085 and 10238t4,
shows on May 12th, 1977, lelator was plaeed on probation for a period of
Four -(4) years; for the offenses Theft of property over 200 & under $10,000
~ < • ' ~ ' •
·cause number (1023SW) and Unauthorized Use of a Motor Vehicle Cause number
(10085) by the Honorable Judge ChaJrles w. L1ftdeey. Relator tzas t'Jtd.y requ:1red
to report to the probation Officer of Ta~rant County, Texas on the 6th day of
June, 1977, and on the itb day ea9oh month the~teaf'tEur, dut'tng probation.
·llelatot' vas only assessed one court eotilt and one probation .fee by Judge
~J
Page 16 •
. Lindsey and this instrument was tin:itten by Judge Lindsey and signed by
and signed by Judge Lindsey. himself.
Clearly., Judge Lindsey excepted tho Plea bargain agreements ..
However, Relator's punishment, upon revocation of probationt was in
facti increased to eight (8) years. As f!Ueb, the trial Judge's actions in
entering a eumulation order violated the p_lea bargain agreements and.
11
additionally presented 1asues int Wnether an increase in punishment· ·after
revocation o~ punishment violates due process unclatt North Carolina vs.
Peare.e., 395 U.S. 711, 89 S.Ct .. 2072, 23 L .. EcS. 2d 656 (1969). CF. Dovie;~
V€ih State. 56S s.w. 2d 543 (TeJt. Cr. App. ~978);Leehuga vs. State, 532 s.w.
2d S81 (Tex •. Cr.~ App. 1975).
·Jtidae Lindsay's ~evoeation hearing, he eta~ked cau$e number 1023SW on
top of eause·number 10085, the~reby reje3ting the plea bargain agree(llonts,
but1 he didn't allow Relator to withd.-aw Delator's pleas of guilt~"·
Rel.Gtov wtll show ~his Court that JudgeLindsey didn't even have the
., right to proc.luui on cause nt.1tnber 1Q23SW at the time in t1d.s cause number````.: I'/(~-
10238Wuntil 1t waa eonsolidated by Rel$tcr waiving Rele.tot<*s rights to be
fil!'&t indicted by the gttand•jt.uty, pursuant to tbe plea 'bargain ag1:'eements
of eoneurrent sentences of probations of four (4) years.Relator wouldn•t
have waived i.ndietment by the grarrd-Ju~y unlees the two eases were ·
consolidated, eause numberf'ts 10085 end 10238V t.o be trried t~getbaw 11 at the
same time, so Relator could receive c.oncu"tr:ent sentences.
Tbe ·pleas were ,lnvoluntal!y beo.ause they wawe based on an tu3surance
fl'om Judge Lindsey that be eould only as~eas punishment of two (2) Foutt
(4) year sentences that be would run e.oneuw:rently· togethett l>~:obated.
Qn Appeal even thouah Relator ff.l&d a Ptto Se bttief Ot;\ Apposl it was
never eonsidered on its tner:l.t.s because the Court of Appeals found
tn aco.ordance wttb Relatoat' e atto~tney • s bt>tef he obtain a favovab).a
dec-ision in wld.$1\ t.hf.t oumul$t.1ott ad' etaclU.na o£ Relatow• s 4tenteuee in
cause r.nunbew tOi3SW was found to u t.naff'ecttve and otde!:l'ed to b& ·delet$1
thetu!efatorth Thereby reforming tbe se1ntent.e$ to run eoneu1t1l$ftt1y. ``S}ogvs.
State, S7S·· S.W.2d $29• at 534 (Tete . . Cr~ App. 1978).
lelatet:'s bwlett was found to be ,-t.tb&ut merlt 'becaus~ tn the abOve .
. .
Gou11t • $ opintoa th$ Couttt deleted an~ 1tGf01tma4. tl\e. s.eetettees. So • a't tlta'
time Rel.,.tlo~t was recetvlng the $enteooes eoaou~trently, ao Delator wasn•t
gol.. t.o euffett no prejudlol•l 1\a~u-. 'So lelato11's brief went withrit the
untcept plea Mt.'ftGla Glalfil 'by l~tlator evo:r betna c.oneldeJtad.
. Howeve~, lt must be s:"etnembal' t.tu\t the St4lte wa~ a~attted a Mot.ioo fot:'
'ie'hurtng and title Ceut:t of Ct:tmlaal Appeals ia tt.•s or·lginal opt'nioa· · ·
4e.laJ:o1ag the 0\tlDUla·,ton Ol'der la~all.tte at
the apple. See also IK Pattte tlawbi.RSOn, 958 S.W.2d 198 (Tex. ·G~. App.1991) •
. ln Relatotr•s lnit1al appli.eation fott wt"lt of babe·as cot:pUs ,all claims
were not add~essed on thei~ merits, Relator meets tbe eaoeptlons to
dismissal ..
..
leleto..r would also point out. to tbis Court of Cv1mittal Appeals,that
the instant application should not be ba~SFed as a ~·subsequent applie.atlon
under the Teaas Code Ct!'lmlnal Proo.edo•e, Arttele 11.07, Section 4,
because Relatow dtd not become aware oi tbe faets alvt.na rlae to the
instant appli~atlon until several ·yesl't!J latet" aftt!t: t'heinltlal applldatlon&h
this Court init1at1y ad.d-cesees whett\Gr tbe instaftt application i.s .
b&Ul"r:ed ea a ``subsequent applicationt•, t.Jnder Seetiou 4, 011 whether S.t falls
witbtn an exception to auc.b be~ Se()tlon 4 ptro~ldes, ln ttallication ot iQ.a pt"evlous1v con$~dered application .~iled under:
this a'rticle ~eeause· the factual o~t legal b~si.-s. fot: the elalm ~as unava1lat>1e
.'
on tbe dst~ the applf.eant filed the ptevl'oJ~G aptJlieation. . .
. . "\>'; ,· '
(C) ·for pur.pose5 of subseetiott (a)(1)._\a fac:.tual. basts of a. c.alim la
unavei~eble on or befo1:e e date de.se.1:ibed "bY subsection (a)(1)1f' tbe
factual baa.ia we$ not ascen:tabiable th11ou;h the eltterct.se of reasenable
d11lgence·on or befo1:e th•t elate. Tex. Code. Cri.ml-na1 PE'CC.edure. A1:ttcle
11 .. 07, 4.
Relator asserts that tbe. Gom:t • s of Al)peals ~olted upon ,Caugtlorta, vs •.
State~-..,549 S.W. 2.d 196 (Te,h Cr •. A:pp. 1977), ~ld.ch held that the S'aters
failure to file notice of ~on&olidat·ion ia ~oaplienc.e· with section 3.02(b),
3 . 02. theJ:efore, the pwbtbt.tleo tA;gainst cumulation provided lrt Section 3.03
did not apply •. See also Gates. vsr'" ~ta.~-,687 S .. ii1.2d :32S (Tcu;:. Cxr· .. Apth19llS)J
~it,l\ Vi'. St§l``-~ 575 S .W. 2d 41 (Te~ .. Ct:. App .. 1979) • ·
Boweve~, Belato?: would eall the Cour:t•9 attentioa to the Ca$e of
.~ "orte vs. Stat$·· 840 s.w. 2d 413 t at 41-3•4.14 (Tex. Cr .. App~ 1992) ~
vheve.t-n .·,'ha Coul't of Cl."tmtual Appeals found that tll..t.s coneluoton was
''t'·: ·:'_, ' . . .· ' '
el.aaP• 1992).
A seutanoe not authorized tty lew l.s· "o14• ,l~tlb vt. i'tt~!~817 s.11. ·
. '. -:"``.
Paae·ao .
2• J3S (Te:. e~. App10 l9tl)J Sae also Wt.laon vs .. ~!!.t.!h677 S.'Q .. 2d 518
(Test. Ct:-• Al)lh 1994). A defect ·.which :renda¥'s a serat•nee veld .may be ~atsed
at anu time .. Elt Par•e Moiver;S86 s.t~.2d 85tjmS4 (Tax .. Gr .. A~.
, 3 .• .: _l ·vr t979).'tf ..
II , ·
Sa. ·pa-c.t.e Sbieldt) • 5.50 ·S. W.. 2d ,6 70 ~· 675 (TeK·• Ct ~ App. 1 9"11) •
' '
llelator bas always eomplainod to thl.s Cour;t that lolator tuad s flea
bal'ga&u agreement ful4 b and.
gJt.aAt ilelato~ r~ve1:sal of· th'$5$ eottvletlons ·anti set th~al ffl:r :tetlit-1..~1"
Reltttoli' would also ec:nt•114 that Uti& QoUJ:t o·f Crbd.nal Appe4i!le $hould
alse set a·stl.tde ltel&tor'5l Siit~Jteaee itl ·OIU$G lt'!i1'bef 2277~ •• e vo:t.d'
convic-t ton may not. be u$ed t:o t~nunee an !nd1Y1idua1 's .s.nteaee under the
t.oxas Statute •. ~ul:seSt vs. •t~t~ of Ttsa•& 389 u.s . .to9, 11a .. 1s. ss S``-Ct ... 258,.
160 ...61.19 t..Ed. 2d· 319 (1967) •. Se$ •.tlS;e !!t:tiq~.~ vs . . E,st·e.,llJ~$12 F.2d 173,
175 (Sth Ctzr :1980), as Relato" also,eiaim.s tlllat ielatot"'s Gouttsel Larwy i'i¥
Thompson at th~ 19SO trial was itt'tltffec.tive beeauS$ be· ·failed to· iinvest.igate
tbe veltdttY of ·tbal~AtGr:•·e 1917 eottvietioru~, and· tbat be "wtcngly advise(!
·· ...
: ,, .. ~
,,I.
' .
:Page 21 ..
Relator to plea true to the enbatu:.ement counte· of causo numbe~ 10085 and
1023SW without expla·lning
. . to Relatcnr whe.~. the plea of t~ue !ntended and
.
~
.
it's consequent:.~ and fa1led to investigate the void eonvlct1ons and he
allowed
. Relator to bs a:nbat'leed by the prosec.uto¥ whom used the 1977
. .::
convictions fott enhaneemeri't wbeu h~ should have kn.GWn that they. we'e
'
void. eonviettons .. See Cook vs. Lxnauab.S21 F.2d 1072 (Stb ',,•
ca-r. .
1987)J
.
See
al0o t.a Porte
, .
vs. ·State. $40 S.W .. 2d 412 (Tex·• Cr .. · App. 1992) ..
And l$Stly, aelator•s sentence ln cause numbe~ 13.472. should alao
be reveJ:sed ·for- resentence,
. .as Rela.tor
.
was ~on~&lY entuu:aced by e.~u.se
' .
·
number·'s 1008$ and 10238W as they are void conviction$ purauant 'o -La; :~or,te
I . .
vs. State.840 s •.w. 2d ·412 _.(Ttnt .. ·cr •. App. 19~2). aod Ex.PaJ:t! s·ims·,9868 .s:.. w.
2d' 8'0.3' (Tex. Ct •. App. 1993)• and ·B:tt Pa-srte. MeJuotinat.9S4 s.w. 2d 39~;39~43.
('rex·. Cr. A:pp.t9t7)J See also Maut',tin.ez· vs" !stc!l.le"6.12 f.2d·' t'13t:1-75 (Sth
Ci:r. 1980); Se~ a.l,s~ :Speneer V~t~ :texag,3S$ 1J.S.,554, 87 S.Ct .. 64.8,17 L.JOO.
2d 606 (1t61).
In Ex Paf:~e. Stuart, 653 S .v. · 2d 13 '·· tbe .defendant cha.llenged _
eonvlction. and tb& prtot eoavic.t.i.ons utted to enbane~ it, ·th.r;ougb ·
; ' . '
numberous ·applic-ations
.
fo~r
.
mtit of habeas C.Ot'PUS td ... At. ·oa~ polnt
,, ,we
cited Stuart': ff)" abuse of the md.t proc!ul~ss' ,Id.. Seven years ·af-tar. 'nls
eonvt:et1on ~ Stuart.t again aought· habeas -seltef c.balleng~ng the., use _of.
;· the prior eonvlotion ``3. to enhance bls senten~es. Id·.. at ·1lh W~ fouqd .
that Stua!!;t~ e1ei1ms had merit in llgbt of changes in the law ·fol.ltuntty to be hea~d by tbls Cou-rt on leletor•s
eonvlc.ti.ons ln C$use numbat' 10085 •mt 4:\auae numbov 10238tl; as heine a
unkept plea bal:&aln, ·
The Goprt • s have pewformed aucll &e'IJ'lotts sv.urae~v on tlte'' groat ~it ;as
J
i.t .applies· to postconv1ction habeas eovpus t-tot.sadlnas.
This Cout>t should not fos:get what thta Supweme Cou~t of ttltt United
Stetespt'evtously pointed out in oonsttuing the babeae eolr!)us statutes.
~i.le the 1thetorlc~("''· calebt:atin~ babea~ eorn>us. luut Clhanged little ove~
...
the centuries. (footnote deleted). it is n~el'tb$ less tt'Ue that the functions
of .t.he wt'i t have .undetgona drat tic change •••
.·.
.,.(B)abeas ~rrpus l$ not a ctatic., tt&ft'ow, fo~.llsti(). S"emodyn11 .'10,11?!. vo.
~nr*ina~.af!.371 u.s. 236, 83 s.ct. 37J,9 t.. Ed. 2d 295 (19~,~.). •. but one
vhieh ..must t:eta.in the abiltty flo cut tturougtVl>att!:lel1s of. form alld
pwoetttb.utal •zes.,• (Citattone Omitted). The very natutt~e o~··the_ writ d&ta$ods
thflt Sot be editln!ate~:ed ~9sentia1 to tnet.ut.e that m1$Ctuz~:t.aaes of just.icfa
td. tb~n 1 t 's •·eac}l · •.:e ·. euurfeoed and oo.:J>eetetl ~ (Glta tlon fle1e·te4) • ~t~s we
hav~ conetstently gajeoted lntcrnrp:retGttons `` the habeas C.Otrjus statute'
that •ould suffqoote tbe writ in etif!.t.na £oin'Mltstta ov. ..~bble · !t&
· E\flec•&'\l'enesliJ with the manecles of Glreane emt l!la\l\olat~ttc p~rooedu~at
~•qui~ement •• •. ~en,$lfX ve. Nunltli..p~l Cguwt. • 411 u.S 34S, 9.9 s.. Gt. 1571 • .
l'
!6 Lli lid 2d 294 (1973).
Ouv habeas eo1:pus law(o) has at~•yt be.~n avallsble to. obtatt'l ~e1easea
of any one who ls .unlawfully ltesttwained off bt.e libe11ty. See also Ia P.ta~te
,' :.-••• . a.•:er
t.emk$.13 s.w. 3d 791 (Tex. Ct:. App.2600).
etearly the failure to hea1r the meW'its of Belator•e Unkept Plea
ba~&ain. aareements would. ttto1rk a t'•HanifeE~t t.njusti~e'j • ae tbete ·is-
:Page 23.
eontro'lling authority in the irtterim that have made a eontrary decision of
law applicable to the disputed issues. faleoti va .. General Tel$phone Cot815
. . . . I. .. ... • . . . . .
F .. 2d 317, 320 (5th Cir. 1987); See alse> La Porte vs. Stat:e,840 S.W.2d 412
(Tex. Cr .. App.1992). and Ex Parte Sims, 868\ S.W.2d 803 (Te~. Cr. Ap.p. 1993)•.
·.'
and Ex :Parte MoJunkins,954 s.W .. 2d 39, 39·43 (Tex .. Cr. App. 1997); See also
_Ei Parte Lemke, 13 SM\l.3d 791 ('Iex. Cr. App. 2000). Plain error was committed
which, if not notieed, would result in a manifest miscarriage of j~uttico
··. . ··
Coushlinvs. Capito Cement Co,571 F .. 2d 2~0, ~97 (5th Cit:. 1978); See also
:.:_:
Klapprutt vs. United States,335 U.S •. GOt, 69 s.ct. 384, 93 L. Ed. 266 (1949).
As there are no time restrictions on a lawsuit of ·-this kind, Relator
may appl.y for the writ any _time Relator feels .the burden ·of s multi-ple
eonvictions·are mol\'e thanRelator can bear:.
'Relator
.
.th~t. this Court. gratat the Mandamus. and application
requests ..---·-··'·
for writ.of habeas corpus; order Respondent to ahow eause why Relator
should not be set at liberty; give a pl-enary bearing to determin~_the
fact·sJ and order produet.ion by the State of such documentation as may be
necessary 'for the proper dete.rminetion of this cause. Relator furthe~
prays that after determining the facts he-rein • the Court ordet' Relator
freed from further restraints upon his liberty, ot:der cause number 10085
and cause number 10238W reversed for a new trial in each ease and order
.'
Relator•s sentences in cause number's 22778 and 13,472 reversed for s new
sente~eing hearing in cause number 22778 and cause numbe~ 13;472 and order
Relator completely cliseharged f11om illegal custody of all Court's and
e.ause numbers and end Relator's illegal confinement from any further
custody or confinement ..
Page 24.
I, Robert Gordon TDCJ~ID#319173, betng presently incal'cettated at
the ~1ynne Unit of the Teaas Department of· Criminal Justiee-'!"Institutional
Division, in tJalket: County, Texas, declare under penalt·Y ·of perjury that
is true 8Jtd correct. Exea.ut~d on tbie~y,of"'":······----
--~--------~------_.2015.
Rcfoort Gord.on TDCJ-ID#.3~'91~73
Wynne Uplt
810 FM 2821
Huntsville,, 'J:'e.:cas, 77349
:.'
t:.X H.L W >- ..\- t \ . \
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. ;f
ART BRENDER C!K.h•b-=
'1:'. t
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. •
·.
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· Allornt"] aJ Lzw
· 1417 Elgbtb Avenul'
,··'
Purl Worth, Te:us 76W4
Pbonl' (817) 921·3731
'
March 2,· 1978
· Mr. Robert Gordon
300 West Belkn_ap
Fort Wor,th, TX 76102
Dear Mr ~ Gordon:
·.~r{. i'~sponse to your letter of February 23, I would ask --``--
··'tha:f::you have your Attorney, Jeff Kearney, contact-me h
concerning the matter: The plea bargains in Judge · ·.· . < \; i
_Lindsey'~ Court were, at that time, even though not
required by law, placed in the record, a."ld the matters
\ .I
·,I .
II ··
to which you inquire should be a matter of record. v
J
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AB:ml
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- _.=..,..J _ _ _ _ _ _____
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1
Exhibit "B" 1 t?f 3 Pages.
~FIDAVIT OF CHARLEY VALDEZ
STATE OF TEXAS
COUNTY OF WALKER
BEF,ORE ME, the:undersigned, a Notary Public in and for the State of Texas, on this day
personally appeared Charl~y Valdez, who, after being duly sworn, deposes as follows:
''My ila..tne is Charley Valdez. ';'I am ever twenty.. one years of age, of sound mind; capable
of making thif> affidavit; ·and personally acquainted with the fa:cts ~ere in stated...
I am employed ~s Program Specialist III for the Classification and Records Division
(''CRD") of the Texas Department of Criminal Justice-Corrections Institutions Division, and my
office is located in Huntsville, Texas.· I have reviewed time records kept by the CRD regarding
offender Rohe1·t Gordon, TDCJ # 319173. CRD maintains these records in the regular course of
business of every offender confined; and it was the regular course of business for an employee or
. repJ;"esent~:~,tive to. TDCJ-CID with knowledge of the act, event, condition, opinion or dia.g..'lose;;,
recorded to make the record or to transmit infonnation thereof to be reasonably ·soon thereafter.
Based on my review of these records, the following table contains the current senten,;e
information for Gordon.
Exhibit ns•• 1 off 3 Pages •
\..._ .
\ \ '·" \
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\ /\
\( \.
··:::!'--.---·---·-"' - - - • _ l L .. • - - .
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1
,.
~. Gordon, Robert 'I'DCJ# ·3!S17J
:-
m~ntbtt
'
..a·~ a o-f 3 l'aaes •
1) \
Pagr.: 2
~-- ~;tY``~;;s --------f · Coun:).---rc~use Number Maximiun ----1
i :
~- ·- ______ J__
l Expiration
Date
'
I
-- --
! Credti Card I
r-· -----i
l
1
I Abuse
A gg!il ~r~ted
• Tarrant 22778
I
20~;-~s... 4-6-1981 6-26-1980 9
\
l\;;,;ault W!DW W772 S.W.2d 113 (Tex. Crim. App. 1989). ·
Prior to 1987, sentences were aggregated according to statute. Article 6181-1, V.T.C.S., Sec,l(4) Defining
/
\\ \ J
"tem1" provided: "When two or more sentences are to be served consecutively and not concurrently, the
aggi·egate of the sentences shall · be considered the term for purposes of this Article." The statutory ·
demarcation for purposes of consecutive computation was discussed by the Court of Criminal Appeals in Ex.
parte Hannington, 832 S.W.2d 355 (Tex.Crini. App. 1992). ·
This is a record of offender's time earning status's to show promotion and demotion dates:
NflTE:
Effective April 1, 1995, the practice of backdating was . discontinued per Board of
- \ Corredion Policc·Y.``:---'---------------_;__,-------------
\r1123 1978 :ro 06l3 T982RATE: S4 I 06 14 1982 TO 10 04 1982 RATE: L2 --l
l9S2 TO 05 22 1983 RATE: L3
\ ; ;) CS i 05 23 1983 TO 07 09 19.83 RATE: L2
l :Y7 10 1983
: 05 ! I 1984
TO 10 25 1983 RATE: S4
TO 05 31 1987 RATE: L3
110 26 1983 TO 05 10 1984 RATE: L2
I 06 01 1987 TO 09 29 1987 RATE: L3 B
i 09 30 !987TO 12 21 \987 RATE: L2 B 112 221987 TO 03 221988 RATE: S4 B
' 03 23 !988 TO 12 15 198S RATE: L2 B 112 16 1988 TO 07 24 1989 RATE: L3 B
If
. 07 25 1989 TO lO 24 1989 RATE: L2 B j10 25. 1989 TO 05 10 1990 RATE: S4 B .
. 1 05 U 1990 TO 08 06 1990 RATE: L2 B I 08 07 19901\0 0121 1991 RATE: L3 B
_, ': 01 22 1991 TO 04 22 1991 RATE: L2 B I 04 23 1991 TO 08 16 1991 RATE: Ll B
J
\1 vt 17 1991 TO 09 30 2001 RATE: L3 B 110 01 2001 TO 10 09 2001 RATE: L2 B
10 l 0 2001 TO 06 03 2004 RATE: L3 B I 06 04 2004 TO 02 l 0 2005 RATE: L2 B .
I
\~2 -~ l 20t)5 TO 09 28 2006 RATE: L3 B I 09 29 2006 TO 03 28 2007 ~:fE: Ll B
; (r3_.<._9_~_.oo_7~-0--``----RA_T_E_._s4_B_!_·_-:-__,_T-0-:_.-:-::_=r:r-~R.ip-A....,forE...,.~-=;:;-:---------­
Exhibit '"B.. Z of 3 Pages •
I
1 ' \ ·.··~
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................ / \/
--- --- ---------- - ~---------- ..
·····
Go.rden1, Rd::-cd ·rnCJ# 319173
Eir.bib1 t ••a"
----------------
3 of 3 Pages·
~ . ,_ ·---~
~ ._ .
' CHJ:i.~nder Gordon completed his GED on 6-1 ~ 19S7 and was awarded 60-days of good time credit on
I
9- '8--1987. Offender has a total of30-years, !-month, and 23~day:> of flat time served, l2-years, 2-months,
l
;rnd :i--days of good time, and 1-month, and 30-days of Lc-~"!H$ time credit;:;.
c:;!';,;u;iers in administrative segregation shall be awarded only the amount of good conduct time
(~r·edit based on their time-earning status, for as long as they remain assigned to administrative
sr:gre``adon status. These offenders shall not be :twarded the "diligent participation" good conduct
dme c!redit.
Pursuant to TEX. Gov'T. CODE § 501.0081, this office received a time dispute resolution forms frcm
418 S.W.2d 824.
(Tex.Cr.App. 1967).
In 1977, the applicant was convicted of the offenses of
.,
unauthorized use of a motor vehicle and theft in .Tarrant County
cause numbers 10085 and 10238W. Punishment
. r'·
was assessed at impri- .
sonment for four years in each case. These convictions were
affirmed on direct appeal. Gordon v. State, 575 S.W.2d 529
(Tex.cr.App. 1978). In 1981, the applicant was convicted of the
offense of.credit card abuse in Tarrant County cause number 22778.
Punishment, enhanced by proof of the prior conviction for
unauthorized of ·a motor vehicle, was assessed at imprisonment for
20 years. This conviction was affirmed on direct appeal. Gordon
v. State, 638 S.W.2d 654 (Tex.App.--Ft. Worth, 1983).
In his present application, the applicant contends that there
was a bona fide doubt as to his competence to stand trial in 1977,
•,'
as well as to hiS sanity at the time of those offenses. This
application, however, presents a more serious question. This
Court's records reflect that, in addition to his direct appeals,
the applicant has filed five previous applications challert'ging
one or more of these convictions.
It is obvious from the record that'the applicant is con-
tinuing to raise issues which have been presented and ~ejeg~ed or
\
should have been presented on dir.act appeal and in his prior· writs.
>rh_``~-"'!:P:Ai::. ``·,:,fl(~J:``as ·_c_q;r!2_U,S i_~ tqo .. s~_rtous ~.~d: im_Pof:``n;t a \~atter . _to
.. • ••• `` .... ~1 ~-; ~;·
be lightly and easily abused. See Ex parte. Carr, 51L S.~.2d 523
(Tex.Cr.App .. 1977}~ Sanders v. United· States, 373 u.s. f (1963).
See also· Smith v. Estelle, 562 F.2d 1006 (5th Cir. 1977); McDon~ld
;'{
v. Estelle, 590 F.2d 153 (5th Cir. 1979); Potts v. Zant, 638 Fi~d
727 (5~ Cir. 1981); Hansen v. Estelle, 641 F.2d 250 (5th Cir. 1981}
(delayed applications).
Exhibit "C" 1 of 2 Pa&es ..
--------~£``·~---~----~
."'-:.
~
•\
PARTE·GORDON [P-.::ge -2-] Exhibit ••c~• 2 of 2 Pages
We hold that the applicant's contention is not only_ without
merit, but has been waived and abaondoned by his abuse of the writ
of habeas corpus.
Therefore, the Honorable Thomas Lowe, Clerk of the Court of
Criminal Appeals, is not to accept or file the instant application
for a writ of }?.$eas corpus. He is also instructed not to accept
in the future any applications f6r,~rit of habeas corpus att~cking.
:!
"-..., "'~ 1 .>.;·
these convictions. unless the applicant has first shown th~t any
contentions presented have not been raised previously and a showing
is made that they could not have been presented in any ea~lier
1/ .
'application. for habeas corpus relief.~ Ex parte Dora, 548 S.W.2d
392 (Tex.cr.App~ 1977); Ex parte Bilton, 602 S.W.2d 534 (Tex.Cr.
'
, App. 19 80) •
IT IS SO ORDERED. this .the 25th day of Hay, 1983.
PER CURIAl-1
En bane
1
.In Ex .parte Dora, supra; .this Court expla.in'ed the duty of the
trial court ~fter the entry of an abus~ order as follows:
·"Where a petitioner has been previously cited for
'an 'abuse of the Great Writ,' the trial court : · ·
should.~ot thereafter consider the merits of any
application for writ of habeas corpus filed by
that petitioner. The trial court should, however,
review the application and make findings that this
petitioner has abused the writ in the past, ·'thus
making ·the· review procedure of this Court more
effici~h~. The transcript should be forwarded to
· ·this Court, just as in all other cases, pursuant' t:O· ·
',our automatic rcvie\oJ".j'ur£:sdit:-tion.,. SI?P Arr.• 11-.07, :: ·.
.,,.L·,, ..·;"''"'7'>'~··l-'.·, '·se~c ~-- Z'(~tr)<';````s2(c), supra," , ·
p
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Airue CoPY
Attest~
Tnomas t.o'l. of ie~a~
court·ot
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Exhibit ''0" 2 of 2 Pages.
4 _7._ _ ._ -- . ". . r
-------------~·-· ·- ``.:..--...:..z-~--------~---.,.....·'·...__,_,r-, .. 1·.
., . , 2lll.l w. t;;;.;Li\.:V.. .~1·'-~l .i•LUU.t'~ U\.UJ.J:`` ... L .;. .•~ ... _.<:. !.Jl.JlL.i.JlL•v. E~bibit ''D``1
"'i'et~phpne: .B0-1-!.f101) Off. _)Ih> 1.~r;;: 8:00 A. I~L to -!:!30 P . .JL .:.Ioncby ~hrough Frid<•Y . . ><· Page
~ .. . . . . . : . . _· ~\._
CONDITIONS OF PROB.c-\·Tin:t~T:
~
THE STATE OF TEXAS
'
1~ Cf!BITN.:\L DISTRICT COURT NO..;.;· _3.
__· ____
vs. NO. / / v~; '-/} v.P---;-1 Tl\.lU!.-\.1\T COUNTY. TEXAs·
)/)(it..:
(/
In .;~:;:ord;'l.nc~ with the nuth·Jrity confc:tTe:r! by the Adult P1·obation and Parol~ Law of the Stat'c 6f 'l'exa3~
.. . / ·"> ; .....~ . • . '7'1.-J /;, '77 . . ' ..
:J /l~'1.\'e be~n plitcc11 on 1'1.·ohr'..t.io~n th b._. · .-::..~- (lew of___ · ·_/_~
/.~ .. , 19L....._, for n. perlcd of.
_. . . ·- ~_:~--~.S::"~.'.". . / ':' £iFr " ·: ;"5/i.' ,. ·~-., (-;·~·~ , y {.'r-"C .<:.:/ ",;.!..oc: f L•·VtJ c:·~ ~/I.}, c(;c- _c / d:?- :3 .!'·~"/..
·r- .. ye;J.~o!':-tl'Y:i 'offehse of l~"''/.J.P 7/·.'r ::"r ';.:.t;:.-'} L.J.J [ c:.;= ,-9 . .i:/1c n,.~ V:;d, t.•t, J'!.-) · c·.t-c (;
t;~ Hor:~rnble c~>·;_ ,d::!..L_/.z/ :;;:;r:.;_?::...:<:..::·!~=..:'":=;.·-{'---,,----, Judge, Crimin~·il Dish-kt Court... No...=~=--·____,
:,/~
.:-r:-.:1 t Cotr;J.ty, Texas. .
lt i~ t.~e ORD.:I~. of the Court th_r1,;;e aiainst the laws of this State or any· other State or the Unit~d StC~.tes;
A ·;:>id inj urions or vicious habits;
A \'oid persons and places of disreputable or harmful ch2.r.acter;
..,-., . . .
·.!':e_port to the Ad~llt ProbCl.tion Ofiicer of T~!Tnnt·county, Texas, on the
,.,~ ·
II~ · h
- - - - - - - - - - - - - - - - , ..• HLL.L., nncl on the --=:___ _day of each month thereafter, during
Pro:;ation; ·I
Permit the Probation Officer to visit you at your home or elsewhere; 'I
Work fnit!lft:lly at .suitable employment :\:5 far as possible; ·
P.r:main v.ithin the limits of T:~rrant County, Texas, unless given pennission by the Tarrant County_.Adult
~bation Officer to leave therefrom; . ·
pport yom dependent:3; ·
."oLify tr.e Ad~lt Prob~tion Officer of TruTant Cormty, Texas, if your address or employment is chang~d,
';',ii:hin fin'! c~ys from the elate of change;
'I
!
!'<:.to nr.d tr:rough the Adult P1·obation Officer of. TaiTant County, Texas, the following:
--- ,._ . .~ ' . ,. p .
i. CO~"RT COST in the amount of S ?'t~ {:tJ , at the,J;n.te of$ CJCi /!1..
:per /7/f../.'J-z:r,t-
t};-e fi:-st P< \'TI"Cnt to be made on the ;,.. fl..... day o'f \..\.``L"-'1...:..-?u·L...:;.~'..:'·~----· 19...ZZ, and a like payment
r.)·11 tile _ - /-;.._day of each month th~rea,rter until ful{~a}'nle!;t is made; ('\
M~OB..i.TIO::; FEE in tha ~:m~ount of S I(,·· Oo on the {· f/..__ day of_ _+.-'-.}-:w·f."-:::::2='!~-"--·:....-~-_, 19~,
,._ ::tncl on t!-:-:: f:,
fl" .d!o.tion of the. conditions of your Probation set out abovl?'~
The Court h~ placed you on Probation, believing that i-f-you sin:c~rel_Y ~"t~ ``.;...~n,c;l•.-}i:!?e Yn · eJ1J[.
>ns of your Probation, yotu- attitude and conduct will improve to the; ·en· nf'"~7theP\iBHC' ``:o"~self."-
. .
. #/ ;'~·/~ ///;.
-'II -ll/ ._. .
~.-1 r!fl;· ,.
' ....'.
I.
; ,. .
/This day, a cop:·• of the conditions of Probation was hanrled to me by the Clerk ~His Court.
~
&-?,·~. de:.``-.:?:~-
":7 .·
Probationer
Exhibit "D'' 1 Page •
• ·' ·~'!'
CAUSE N0'S
ROBERT GORDON, --------~IN THE TEXAS COURT OF
APPLICANT-RELATOR CRIMINAL APPEALS
vs. AUSTIN. TEXAS
TEXAS COURT OF CRIMINAL.APPEALS CAUSE NO'S. 10085 AND
AUSTIN, TEXAS? 10238W, AND 13,472 AND
WILLIAM STEPH~NS, DIRECTOR. 22 7-7 8.
RESPONDENT's'
APPLICATION FOR vJRIT OF
MANDAMUS.
TO THE HONORABLE JUDGES OF SAID COURT;
NOW COMES.R0bert Gordon, Relator, pro se in the above-style and
numbered cause's of action and files this original Application for writ
of Mandamus pursuant to Texas Constitution ·Article 5, Subsection 1 ~C. See
also Texas Constitution Art.icle 5, Section 3. This authority is also
found in Article 4.04 (1) of the Code of Criminal Procedure, and Texas
Rule Appellate Procedure Article 52.1, ,See Matthaei vs. Clark,(Sup.1969)
(~·
110 Tex. 114, 216 S.W. 856; EX PARTE_BROOKS,((r App 1986) 722 S.W.2d 140 .
. ·'
See also Dallas Area Rapid Transit vs. Amalgamated Trarisit Uriion
Local No. 1338 (Sup 2008) 273 S.W.3d 659, Certiorari denied 129 S. Ct.
2767 1 174 L. Ed. 2d 284. See also Martin vs. Hamlin,---25 S.W. 3d 718 (Tex.
Cr. App. 2000);See also State Ex rel. Healey vs. McMeans,--884 S.W. 2d 772
(Tex. Cr. App. 1994); EX PARTE Rodriguez vs. Court of Criminal Appeals,
980 S.W.2d 475 (Tex. CR.App. 1998).
I.
RELATOR;
Robert Gordon TDCJ-ID#319173 is an offender incarcerated in the
Texas Department of Criminal Justice.--Institutional Division and is appea:;:· ..
ing pro se, .who can be located at the Hynne Unit, 810 FM 2821, Huntsville,
Texas 77349.
II.
P.ESPOHDENT:
~espondent Texas Court of Criminal Appeals, P.O.Box 12308,tapitol
Station, Austin, Texas 78711.
Respondent William Stephens Director P.O.Box 99~ Huntsville, Texas
77342. ·'
/
···";.:~-- .
:
Page L..
III.
Relator has exhausted all remedies and has no other adequate remedy
at law.
The act sought to be compelled is ministering not discretionary in
nature. Braxton vs. Dun~.··803 S.l:7.2d 318 7 320 (Tex. Cr. App. 1991). An act
is ministerial ' 1when the lav1 clearly spells out the duty· to be performed ...
with such certainty that nothing is left to the exercise of discretion or
(Tex. Cr. App. 1981).
The Court of Criminal Appeals and each iudge thereof shall have~ and
is hereby given; the power and authority to grant and issue the issuance
of writ of habeas: and in criminal matters~ the writs 6f Mandamus,
Procedendo: Prohibition, and Certiorari. The Court and each Judge thereof
have ; and is hereby given, the power and authority to grant and issue aad
cause the issuance of such other writs as may be necessary to protect its
jurisdiction or enforce its judgments. Texas Constitution Article 5;
Subsection C.
IV,
HISTORY OF THE STATE'S CASE AND IN CUSTODY REQUIREMENT
Relator was convicted in cause number 10085 and 10238W in which
Relator plprl. euil ty to the two cause's in exchange for two ( 2) . f om:- ( 4)
year sentenceR to be rAn concurrently, that would be probated.
Jurl.gp Lindsey personally pArticipated in the plea bargaining processes.
Relator was told by Judge Lindsey that is he decided at any timej thRt he
was going to ~ejAct the plea bargain agreements, that Relator would he
a]lowed, Rnd shall he permitted to withdraw RelAtor's pleas of gtiilty,
However, At the point in which Judge Lindsey hear~ the revocation af
probation hearing he stacked cause number 10218W on top of cause number
10085" thereby rejecting the plea bargain agreements.
Page 3.
These plea bargain agreements were consolidated and tried at the same
time as Relator plead guilty to both offenses at the same time in cause
number's 10085 and 10238W. To provide evidence of this fact Relator wo~ld
point this Court to the fact in order for Judge Lindsey to be able to
consolidate these cause number 1 s 10085 and cause number 10238W, Relator
had to waive Relator's rights to indictment in which Relator did in order
to recive the two cause's 10085 and 10238W to be tried together at the
same time, so Relator could receive concurrent set~nces otherwise Relator
would not of waived Relator's rights to be indicted first before the Court
could proceed on both cause's 10085 and 10238W, as the Court lacked
jurisdiction for trial of both cause's at that, time. Relator would fuEther
argue to this Court that Relator is actually innocent of committing these
offenses of Theft in cause number 10238W and Unauthorize Use of a Motor
Vehicle in cause number 10085.
Relator would show this Court that because of the serious collateral
conseauences arising from a conviction for felony theft the doctrine of
mootness does not prohibit this collateral attack. See Ex Parte Guzman,
551 S.W.2d 387 (Tex. Cr. App.1977); Ex Parte Burt, 499 S.W.2d 109 (Tex Cr.
App. 1973); Ex Parte Jentsch,510 S.W.2d 320 (Tex. Cr. App. 1974); Ex Parte
Langston, 510 S.W.2d 603 (Tex. Cr. App. 1974);See also Ex Parte Harp, 561
S.W.2d 180 (Tex. Cr .. App. 1978).
Relator would contend that it is well settled that a habeas corpus
1
Application Applicant meets the statutory "in cus tody 'requirements when, at
the time he files the petition he is in custody pursuant to the conviction he
attacks or he is in custody pursuant to another conviction that is positively
and demonstrably related to the convictions he attacks. See Carter vs.
Procunier, 755 F.2d 1126 (5th Cir. 1985); See also Carter vs. Estelle, 677
F.2d 427 (5th Cir. 1982).
Page 4.
Relator would assert that Relator is confined pursuant to a May 20th
1986~ conviction for aggravated assault in cause number 13,472, wherein
the 12th Judicial District Court of Walker County, Texas, upon plea of
not guilty and jury trial, Relator was found guilty and punishment was
assessed by the jury at 99 years imprisonment and ordered to run
consecutively with the sentence Relator was assessed upon conviction for
credit card abuse of 20 years imprisonment as punishment in cause number
22778. Therefore, Relator's present confinement is set at 119 years
imprisonment. Punishment enhanced by proof of the prior convictions in
cause number 10085 and cause number 10238W in both convictions in cause
nufub~rs 22778 and in cause number 13,472, that Relator is now confined on.
However, in cause number 22778, Relator plead true to the enhancement
Count's cause number 10085 and cause number 10238W. Therefore, Relator
would show that Counsel at the 1981 trial was ineffective because he failed
to investigate the validity of Relator's 1977 convictions that the prosecutor
used the 1977 convictions for enhancement counts when he should have known
that it was void .. See. V.T.C.A.Penal Code 3.03.
A defendant may not by agreement render legal a punishment which is
not otherwise authorized by law. Heath vs. State, 817 S.W.2d 335 (Tex. Cr.
1
Ohio App. 1991). In circumstances such as Relator's ' sentences shall run
concurrently~ V.T.C.A.Penal Code 3.03. This language creates an absolute
restriction-of a trial Court's general authority to impose consecutive
,·
sentences. See Wilson vs. State,677 S.W.2d 518 (Tex. Cr. App. 1984). A
defect which renders a sentence void may be raised at any time. Ex Parte
Mcjver,586 S_.W.2d 851, 854 (Tex. Cr. App. 1979); Ex Parte Shields, 550
S.W.2d 670 1 675 (Tex. Cr. App.1977).
Clearly, La Porte vs. State,840 S.W.2d 412 (Tex. Cr. App. 1992), Leaves
no doubt, on the State of the law in this area of the law.
Page 5.
See also Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993), and Ex Parte
McJunkins, 954 S.H.2d 39,39~43 (Tex. Cr. App.1997); See also Cook vs.
Lynaugh, 821 F.2d 1072 (5th Cir. 1987); See also Hill vs. Lockhart, L~74
U.S. 52, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203(1985). As Relator clearly
had a plea bargain for concurrent sentences in cause No's. 10085 and
11
10238W. See attachment hereto of Exhibit A11 o incorporated herein for all
purposes. Clearly Relator is entitled to reversal of the convictions and
sentences.
Relator suggests the proper remedy in cause number's 10085 and 10238W
should be found to be void under La Porte vs. State, 840 S.W.2d 412 (Tex.
Cr. App. 1992); and Ex.Parte Sims 868 S.W.2d 803 (Tex. Cr. App. 1993); And
Ex Parte McJunkins,954 S.W.2d 39-43 (Tex. Cr. App. 1997), and remand
back to the trial Court for new tiial, relying on these above described
Court decisions and in cause number's 22778 and -13,472 these sentence's
should be reversed for resentence without the void convictions 10085 and
10238W being used for enhancement Counts purposes. As a matter of the law.
See Burgett vs. State of Texas,389 U.S. 109, 112-13, 88 S. Ct. 258, 260-61,
19 L. Ed. 2d 319 (1967); Zales vs. Henderson, 433 F.2d 20 (5th Cir. 1970):
Martinez vs. Estelle,612 F.2d 173 (5th Cir. 1980); Carter vs. Estelle, 677
F.2d 427 (5th Cir. 1982); See also Carter vs. Procunier?55 F.2d 1226 (5th.
Cir. 1985); Cook vs. Lynaugh~821 F.2d 1072 (5th. Cir. 1987).
v.
THRESHOLD QUENTIONS
Several preliminary issues will be raised which must be considered
before the issues are reviewed on there meri~s; this has the effect of
11
making this case more complex than the issues of complaints Unkept Plea
Bargain agreements and void stacking of the sentences in cause nu~ber
10085 and 10238W 11 , which changed Relator's punishment from a total of
four (4) years maximum to a eight (8) year maximum, prison sentence. See
Page 6.
Attachment hereto of Exhibit ;;B·;; 1 of 3 pages incorporated herein for all
'
purposes. Relator did the whole eight (8) years maximum sentence.
11
A EXAMINATION OF THE ATTACHMENT Exhibit B" is a affidavit of
Charley Valdez, at page 2 at the bottom of the page is a record of
Offender Robert Gordon TDCJ-ID#319173 time earning status's to show
promotion and demotion dates:: ;,\iJhich shows Relator was be tv1een 11-23 ·~
1978 to 06-13-1982 a S4 Trusty Line Class~ 54 Status earns 30 days for
every 30 days done and earns additionally another 30 days good time. A
total of 60 days for time earning status, Time line class which equals
all time earn for that period. This chart in this box also shows
from 10~05-1982 to 05-22-1983 that Relator was Line class 3, which does
not earn any time of good time status, this time period only earns day
for day time earning status, which means no good time earn. The chart
further shows that Relator was Line 2 status from 05-23-1983 to 07-09-1983,
this time earning status earns day for day with only 10 days added for
good time status. A line I Status earns every 30 days he receives 20 days
goo.d, time earning status. The "B" Status earns a extra 10 days for ever'·y
30 days that Relator is Line I Status.
Clearly, there is a chart showing that Relator was continually
confined between 11-23-1978 to 03-28-07. Which shows Relator discharged
the original 1977 convictions and the 1980 conviction up to the date
and begain serving the 1984 conviction up to the date Relator is still
confined under.
The chart above described clearly shovJs Relator completed the tvlO
four (4) year sentences as stack by Judge Lindsey. Therefore, Relator suffer
the punishment of the prejudicial stacking of the two four (4) year sentences
and Relator has completed doing the eight (8) years sentence in full.
Therefore, Relator seeks to withdraw Relator's pleas of guilty in
cause number's 10085 and 10238W and be able to plea again, Anew to not
guilty in accordance to the prejudicial punishment of the Eight ~ears
that Relator had to do, in violatiorr'of Relator's original plea bargain
agreements of the (2) four (4) year coricurrent sentencing. La Porte vs.
State, 840 S.W.2d 412 (Tex. Cr. App. 1992); and Ex Parte Sims,868 S.W.
2d 803 (Tex. Cr. App. 1993); And Ex Parte McJunkin~,954 S.W.2d 39-43
(Tex. Cr. App. 1997).
Relator was cited for abuse ~f the writ process pursuant to an order
of the Court of Criminal Appeals, pn May 25th,1983. Said Order is attached
as Exhibit "C", incorporated herein for all purposes.
Relator states that, as set out in Relator's original Application for
habeas corpus, Relator has not been provided with the opportunity to.
challenge the earlier convictions in number's 10085 and 10238W, on the
issues now presented due to the fact that the only issue on Relator's prior
Appeal proffered by Counsel Jeffrey A. Kearney was the issue of the Judge's
authority to cummulate Relator's sentences. In th:ls Appeal Counsel Jeffrey
A. Kearney received a proitable decision by the C6urt of Criminal Appeals
in it's opini6n by the Court ordering the cumulation reci~als in the
sentences in cause number 10238W are ineffective and' are therefore ordered
deleted therefrom, under the Court's decision in Ex Parte Reynolds,462 S.W.
2d 605 (Tex. Cr. App. 1970). However, the Court didn't stop there,it went on
to state: 11
Finally ~ we have revievJed the Appellant's pro se allegations
and we find them to be without merit~ See Gordon vs. Stat~ 575 S.W.2d
529, at 534 (Tex. Cr. App. 1978).
Relator raised in Relator's Prom Se allegations the ~onviction and
sentences 'i.vere based on ''Unkept Plea Bargain Agreements 1' .
Relator would further show the .Court that Relator filed two (2) writ's
of habeas corpus while Appeal was still pending before the Court of
Page 8.
Criminal Appeals, which Judge Lindsey ordered Relator's two (2) writs of
habeas corpus to be forwarded to the Court of Criminal Appeals to be
treated as pro se brief's on Appeal, per order of the Judge Lindsey.
Upon review of these Pro Se Brief's on Appeal, because the Court
of Criminal Appeals entered into a judgment in Relator's behalf by
ordering the cumulation of cause number 10238W as being ineffective and
therefore ordered deleted therefrom, and ordering the reformation of the
sentences of cause number's 10085 and 10238W to be ran concurrently. See
Gordon vs. State,575 S.W.2d 529, at 534 (Tex. App~ 1978).
Relator's pro se brief's were never reached on there merits because
the Court of Appeals was ordering the reformation of the stacking order
of the Court Judge Lindsey. See Gordon vs. State, 575 s~w. 2d 529, at
534 (Tex. Cr. App. 1978), and this is why the Cou~t found Relator's 11
Unkept
plea bargain agreement claims in the pro se brief's to be without merit,
because the Court of Criminal Appeals was reforming the stacking of the
sentences".
So, Relator didn't suffer no prejudice, as Relator was having R~lator's
original plea bargain agreement enforc€d by the Court of Criminal Appeals
ordering the reformation of the sentences of cause number 10085 and
10238\-J to be ran concurrently. Gordon vs. State,575 s. vJ. 2d 529, at 534
(Tex. Cr. App. 1978).
HovJever, the State filed a Motion for Rehearing vJi thin the Texas
Page 9.
Relator has did the full sentences as stacked ~nd has fully completed
the sentences as stacked due to the Court of Criminal Appeals opinion and
decision. See Gordon vs. State,575 S.W.2d 529, at 534-535 (Tex. Cr. App.
1979). So, Relator has suffered the prejudicial harm of the Court of
Criminal Appeals opinion and decision on rehearing. See also Exhibit
the affidavit of Valdez.
Relator would further point out to the Court that on direct Appeal
Counsel Jeffrey A. Kearney completely abandoned Relator on Appeal when he
received the proitable decision by the Court of Criminal Appeals in its
opinion. However, on State's granted Motion for Rehearing and the Court of
Criminal Appeals decision in restacking the sentences. Gordon vs. State,
575 S.W.2d 529, at 534-535 (Tex. Cr. App. 1979).
Counsel Jeffrey A. Kearney merely sent Relator the Court's decision,
with a letter of the opinion and never advised Relator of the rights to
file a Motion for discretionary review, thereby, denying Relator of the
right to do so and just merely abandoned Relator.
Relator due to the Court's never reaching the ~'Unkept Plea bargain
issueli raised by Relator. Relator filed the first application for writ of
habeas corpus in the 3rd Judicial District Court of Tarrant County, Texas.
The assistant district attorney in Fort \-Jorth, Texas, filed a
writ response to Relator~s first writ of habeas corpus filed and heard as
a writ of habeas corpus and attached a copy of Relator's two writs of habeas
corpus that were forwarded to .the Court of Criminal Appeals to be consider
as Pro Se brief's on Appeal, which went without being actually heard on oits
merits because the Court's order reforming the sentence pursuant to attorney
Jeffrey A. Kearney's brief on Appeal receiving a favorable Court of
Criminal Appeals decision. See Gordon vs. State,575 S.W;2d 529, at 531-
534 (Tex. Cr. App. 1978).
The Assistant District Attorney in Fort Harth, Texas, attached a copy
Page 10.
of Relator's Pro Se brief's on Appeal and pointed to the Opinion of the
Court of Criminal Appeals \vherein the Court stated that Relator's Pro Se
brief on Appeal was without merit and argued that the Court should cite
Relator for abuse of the writ of habeas corpus because Relator has already
addressed Relator's claims on Appeal and the Court of Criminal Appeals
has found them to be without merit and Relator is again attempting to have
the same claims heard again after they have already been heard and denied
and found to be without merit by the Court of Criminal Appeals. The
assistant district attorney ''played the district Court Judge and the Court
of Criminal Appeals''r by these arguments and committed fraud on the Court in
~·
'.vhich the assistant district attorney acted vlith a intentional ill motive
11
which should not have pass even the most lenient ethical smell test'} He
clearly bypassed questions of ethic's in a effort to gain advantage in this
litigation. He clearly acted in bad faith and ignored the facts of the true
reasons in why Relator's Pro Se brief's on Appeal were found to be without
merit by the Court of Criminal Appeals de~ision and opinion in which the
Court of Criminal Appeals was ordering, the cumulation recitals in the
sentence in cause number 10238W to be ineffective and therefore ordered it
deleted therefrom. As, the next statem~nt by the Court of Criminal Appeals:
Finally 1
we have reviewed the Appellant's ProSe allegations and we find
them to be.without merit, but this finding was made because Relator
received a favorable decision on Appeal by the unstacking order. See Gordon
vs. State, 575 S.W.2d 529, at 531-534 (Tex. Cr. App. 1978).
Furthermore, the Assistant district attorney also gain advantage by
his false arguments to the Court of Criminal Appeals by that Court citing
Relator for writ abuse in Relator's first writ of habeas corpus that was
considered at that time and Realobas been denied the ability to ever
file another writ of habeas corpus since the Assistant district attorney
made his fraudulent arguments that got the Court of Criminal Appeals to cite
Page 11.
11
Relator for writ abuse. See prior 'i.vrit abuse attached hereto as Exhibit C"
incorporated herein for all purposes.
Subsequently, the State filed a Motion for rehearing within the Texas
Court of Criminal Appeals under the Rules, ordered a rehearing on the
State's filed Motion for rehearing. The rehearing was granted, and that
part of the original opinion declaring the cumulation set aside is now
reversed and the judgment including the cumulation order are now affirmed.
See Gordon vs. State,575 S.W.2d 529, at 534-535 (Tex. Cr. App. 1979).
Relator would argue to the Court that the rehearing the Court of
Criminal Appeals entered into error by. relying on Spencer vs. State, 503
S.W.2d 557 (Tex. Cr. App. 1974), and Ex Parte Crawford, 36 Tex. Cr. App.
180, 36 ~.w. 92 (1896); Ex P~rte March, 423 S.W.2d 916 (Tex. Cr. App.1Yb8),
And~Ex Parte Davis, 542 S.W.2d 117 (Tex. Cr. App. 1976).
Relator contends that the trial Court erred in cumulating the sentences
because concurrent sentences are mandated by Tex. Penal Code Ann. 3.UJ (Ver-
non's 1974):
Section 3.03 provides:
Hhen the accused is tound guilty or more than
one offense, arising out of the same criminal
episode prosecuted in a single criminal action,
sentences tor each offense for which he has
been found guilty shall be prononced. Such
sentences shall run concurrently.
The Court of Criminal Appeals on rehearing erred in th~a it relied on
outdated cases and law ...
Relator would show the Court where a trial Judge's cumulates and
does increase punishment after revocation, an additional issue is presented:
Whether an increase ih punishment after revocation violates due process
under North Carolina vs. Pearce, 395 U.S.711, 89 S. Ct. 2072, 23 L. Ed. 2d
656 (1969). Cf. Bovie vs. State,5b5 S.W.2d 543 (Tex. Cr. App. 1978);Lechuga
vs. State,)32 S.W.2d 581 (Tex. Cr. App. 1975).
Page 12.
The .Court of Criminal Appeals additionally stated in La Porte vs.
State, 840 ~.w.2d 412 ``ex. Cr. App. 1Y92) that:
"An improper cumulation order is, in
essence, a void sentence, ana such
error cannot be waived. A derect
which renders a sentence void may
be ra~sed at any time. Levy vs.
State,81~ S.W.2d 801 (Tex.Cr.App.
1991).
The La ~orte, Court further recognized that it had vacated improper
cumulation orders presented for tne. first time in Postc6nviction writs of
habeas corpus. La Porte,Supra, tootnote 5. See Ex Parte Ashe~ 641S.W.2d
243 (Tex. Cr. App. 1982), and Ex Parte Vasouez, 712 S.W.2d754 (Tex. Cr.
App. 1986). See also Ex Parte Sims,~68 S.W.2d 803 (Tex. Cr. App.1993),
Ex Parte McJunkins,954 s.W.2d 39, 39-43 ~Tex. Cr. Hpp.1997).
Kelator contends that as a matter of the law the trial Court, as w~il
the C6urt of Criminal Appeals has erred in cumulating the sentences
l;>ecause concurrent sentences are mandated by Tex. Penal Code. Ann. 3.03
(Vernon's 1974), as a matter of law. See La Porte vs. State,840 S.W.2d 412
(Tex. Cr. App. 1992); Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993),
and Ex Parte McJunkins? 954 S. tJ. 2d 39, 39-43 (Tex. Cr. App. 1997), in which
Relator relies and is entitled to as a matter of law.
Relator's convictions should be voided and Relator returned to the
trial Court to face these charges again, as Relator's plea bargain
agreements were violated by the Court and Relator has _already did the
sentences, as cumulated against Relator in cause number's 10085 and
10238W. Relator has suffered the prejudicial harm of the stacking of the
sentences. Relator should be able to withdraw the pleas of guilty, as
Relator was told he would be allowed to do, if Judge Lindsey didn't
except the pleas of guilty. Relator is entitled to relief under Ex Parte
Sims, 868 S.W.2d 803, at 804-805 (Tex. Cr. App. 1993); Ex Parte McJunkins,
Page 13.
954 S.W.2d 39,39-43 (Tex. Cr. App. 1997).
Relator attempted to file another application for w~it of habeas
corpus when Relator came accross the case of La Porte vs. State, 840
S.W.2d 412 (Tex. Cr. App. 1992), and arguing to the Court that their .has
been a intervening change in the lmv which should allow Relator the
consideration of another application for writ of habeas corpus. However, the
Court again refused to hear; and intertain the claim for relief that Relator
should be entitled to by the Court of Criminal Appeals.
The Court should relize that there is no new habeas corpus claim when
a Applicant merely asserts that ··a previous ruling which precluded a merits
determination was in error. There has been no final determination on the
merits of Relator's first application for writ or for that matter there
hasn't been any consideration uridertaken by the Court of Criminal Appeals
under 11.07 that has ever been undertaken by this Court in none of Relator's
prior applications in any convictions in cause number's 10085 and 10238W,
and cause number 22778 and cause number 13,472, on there merits and there
has never been a written response on there merits~ it always has been 6n
procedural grounds, such as no proper oath being given to the application
which is a requisite to the application. See Code of Criminal Procedural
requisite Article 11.14 (5) or Relator had a direct Appeal pending as
another procedural ground in keeping Relator's applications from being
heard on there merits in any of the above described tauses, as it always
has been Relator's pleadings were deficient as a matter of pleading, and
denial without a v.rri t ten decision. The only reasonable in terpre ta tion of the
denials of Relator's Applications by the Texas Court of Criminal Appeals
is th~t the Court invoked proceduaral default and did not decide the case
on the merits of the Unkept plea bargain agreements, as pointed out by
Relator.
Page 14.
ARTICLE I, SECTION 12 HABEAS CORPUS
The writ of habeas corpus is a writ of right, and shall never be
suspended. The Legislature shall enact laws to render the remedy speedy
and effectual. See Code Criminal Procedure Article 1.08 and Article 11.07'
Section 4.
Relator would assert to the Court of Criminal Appeals that in Ex Parte
Torres,943 S.W.2d 469, at 475-476 (Tex. CR. App. 1997); "Because the direct
Appeal record contained insufficient evidence to evaluate the ineffective
assistant of Counsel issue, we hold that the rejection of his claim on
direct appeal does not bar relitigation of his claim on habeas corpus to the
extent that Applicant seeks to gather and introduce additional evidence not
contained in the direct Appeal record".
Relator has a similar claim of review on Appeal. Relator raised on
Appeal that the ''pleas of guilty were based on Unkept Plea bargain
.agreements''. No evidentiary hearing was ever entertained by the Court to
allow Relator to develope the facts of the record on Appeal. Relator would
point the Court to review Relator's Exhibit "A" a letter written to Relator
by Counsel Art Brender who represented Relator at the plea bargain
undertaken by Judge Lindsey.
Clearly, a review of exhibit "A" establishes by examination of this
letter that Realator had plea bargain agreements at the time Relator entered
a plea of guilty which Relator was told by Judge Lindsey that he would
except the plea bargain agreements prior to exceptance of the plea by
·Judge Lindsey.
This letter by Art Brender to Relator shows that upon Judge Lindsey
adding a cumulation order to cause number 10238W and stacking the sentence
on top of cause number 10085, Relator immediately complained to Art Brender
of the unkept plea bargain agreements as the letter was written to Relator
by Art Brender in response to Relator's letter to Art Brender dated
Page 15.
February 23: .. 1978, that he responded to on March 2,197 8, in his response he
makes it clear "the plea bargains in Judge Lindsey's Court were, at that
time, even though not required by law, placed in the record, and the
matters to which you inquire should be a matter of record".See Exhibit "A"
incorporated herein for all purposes.
Relator would contend Judge Lindsey excepted the plea bargain agreements
at that time and assessed two probations of four (4) years that were running
concurrently.
As, it is well established that where a trial judge does not order that
two sentences in two different cases shall be cumulative, the terms of
imprisonment automatically run concerrently. Ex Parte Reynolds,462 S.W.2d
605 (Tex. Cr. App. 1970); ·See also Gordon vs State,575 S.W.2d 529,at 532
(Tex. Cr. App. 1978).
Thus, Relator argues that since the judgments placeing Relator on
probation did not indicate that the sentences were to be cumulated, the
attempted cumulation after revocation is ineffective, as Judge Lindsey
excepted the pleas of guilty for two concurrent sentences, which were
suspended and Relator was placed on probation for four (4) years.
Rela4lbr would point this Court to examine Exhibit "D" attached hereto
incorporated herein for all purposes. This Exhibit "D" which instrument is
entitled "conditions of Probation, in cause number's 10085 and 10238W,
shows on May 12th, 1977, R~lator was placed on probation f6r a period of
Four (4) years, for. the offenses Theft of property over 200 &, under $10,000
cause number (10238W) and Unauthorized Use of a Motor Vehicle Cause number
(10085) by the Honorable Judge Charles W. Lindsey. Relator was only required
to report to the probation Officer of Tarrant County, Texas on the 6th day of
June, 1977, and on the 6th day each month thereafter, during probation.
Relator was only assessed one court cost and one probation fee by Judge
' '
Page 16.
Lindsey and this instrument was written by Judge Lindsey and signed by
and signed by Judge Lindsey, himself.
Clearly, Judge Lindsey excepted the Plea bargain agreements.
However, Relator's punishment, upon revocation of probation, was in
fact increased to eight (8) years. As such, the trial Judge's actions in
entering a cumulation order violated the plea bargain agreements and
additionally presented issues in: nwhether an increase in punishment after
revocation of punishment violates due process under North Carolina vs.
Pearce 1 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). CF. Bovie,
vs. State, 565 S.W.2d 543 (Tex. Cr. App. 1978);Lechuga vs. State, 532 S.W.
2d 581 (Tex. Cr. App. 1975).
Judge Lindsey's revocation hearing, he stacked cause number 10238W on
top of cause number 10085, thereby rejecting the plea bargain agreements,
but he didn't allow Relator to withdraw Relator's pleas of guilty.
Relator will show this Court that Judge Lindsey didn't.even have the
right to proceed on cause number 10238W at the time in this cause number~.
10238W until it was consolidated by Relator waiving Relator's rights to be
first indicted by the grand-jury, pursuant to the plea bargain agreements
of concurrent sentences of probatiops of:four (4) years.Relator wouldn't
have waived indictment by the grand-jury unless the two cases were
consolidated, cause number''s 10085 and 10238W to be tried together, at the
same time, so Relator could receive concurrent sentences.
The pleas were involuntary because they were based on an assurance
from Jud~e Lindsey that he eould only asses~ punishment of two (2) Four
(4) year sentences that he would run concurrently together probated.
On Appeal even though Relator filed a Pro Se brief on Appeal it was
never considered on its merits because the Court of Appeals found in
/
Page 17. /
in accordance with Relator's attorney's brief he obtain a favorable
decision in which the cumulation and stacking of Relator's sentence in
cause number 10238W was found to be ineffective and ordered to be deleted
therefrom. Thereby reforming the sentences to run concurrently. Gordon vs.
State, 575 S.W.2d 529, `` 534 (Tex. Cr. App. 1978).
Relator's brief was found to be without merit because in the above
Court's opinion the Court deleted and reformed the sentences.So, at that
time Relator was receiving the sentences concurrently, so Relator wasn't
going to suffer no prejudicial harm. So Relator's brief went without the
unkept plea bargain claim by Relator ever being· considered.
However, it must be remember that the State was granted a Motion for
Rehe~ring and the Court of Criminal Appeals in it's original opinion
declaring the cumulation order invalid and reforming the sentence is set
aside and the judgments including the cumulation orders are now affirmed.
Gordon vs. State, 575 S.W.2d 529, at 534-535 (TeX. C~. App.1979).
Counsel Jeffrey A. Kearney abandoned Relator on App~al and did not
advise Relator of the right to discretionary review by the Court of
Criminal Appeals.
Relator was left with just filing the first habeas corpus Application
arguing unkept plea bargain agreements.
It must be remembered the State distri~t attorney mislead the Court in
his response to the writ, by asking this Court to cite Relator for writ
abuse and arguing to the Court of Criminal Appeals thai Relator's claims
had already been heard on Appeal and that Coprt found the claims to be
without merit and asking the Court to cite relator for writ abuse, which
the Court did, and left Relator without Relator's claims of a unkept plea
bargain agreements ever being address on there merits.
Relator would point out in Ex Parte Torres,943 S.W.2d 469 (Tex. Cr.
Page 18.
App.1997), and Ex Parte Thomas,953 S.W. 2d 286 (Tex. Cr. App. 1997),the
Court has made clear that no final disposition unrelated to the merits
and that never addressed the merits of the grounds raised in Relator's
previous Pro Se brief on Appeal or Relator's first application for writ
of habeas corpus which ended in Relator being cited for writ abuse and
the Court's never hearing none of Relator's writs, which there was no
final disposition of Relator's initial writ application and in relation
with Tex. Code. Crim. Proc. 11.07 Section 4 does not bar this Court from
addressing the merits of this instant application for mandamus, habeas
corpus to take whatever action it deems appropriate to address the claims
raised by this Relator in accordance to the Tex. Code. Crim. Proc. Art.
11.07 3(C).
These above cited cases entitled Relator to ONE BITE AT THE APPLE,
THEY clearly contemplated that bite would be a full one. Relator hasn't
had no bite at any previously filed Pro Se Brief's on Appeal or any 11.07
postconviction application for·writ of habeas corpus, because the Court's
denied relief on procedural defaulted grounds.Relator has had no bite at
the apple. See also Ex Parte RawhiRson, 958 S.W.2d 198 (Tex. Cr. App.1997).
In Relator's initial application for writ of habeas corpus all claims
were not addressed on their merits. Relator meets the exceptions to
dismissal.
Relator would also point out to this Court of Criminal Appeals,that
the instant application should not be barred as a "subsequent application
under the Texas Code Criminal Procedure, Article 11.07, Section 4,
because Relator did not become aware of the facts giving rise to the
instant application until several years later after theinitial applications.
This Court initially addresses whether the instant application is
barred as a ''Subsequent ~pplication'', under Section 4, or whether it falls
within an exception to such bar Section 4 provides, in relevant part.
Page 19.
(a) If a subsequent application for writ of.~n initial application 1
challenging the same conviction, a Court may not consider the merits of
or grant relief b~sed on the subsequent application unless the application
contains s~fficient specific facts establishing that: (1) the current claim
and issues have not and could not have been presented previously in an
original application or in a previously considered application filed under
this article because the factual or legal basis for the claim was.unavailable
on the date th~ applicant filed the previous application.
(C) for purposes of subsection (a)(1), a factual basis of a calim is
unavailable on or before a date described by subsection (a)(1)if the
factual basis was not ascertainable through the exercise of reasonable
diligence on or before that date. Tex. Code. Criminal Procedure Article
11.07, 4.
Relator asserts that the Court's of Appeals relied upon Caughorn vs.
State, 549 S.W.2d 196 (Tex. Cr. App. 1977), which held that the State's
failure to file notice of consolidation in compliance with section 3.02(b),
meant the action did not constitute a single criminal action under section
3.02. Therefore the prohibition against cumulation provided in Section 3.03
did not apply. See
.
also Garza vs. State,687 S.W.2d
.
325 (Tex. Cr. Ap~.1985);
Smith vs. State, 575 S.W.2d 41 (Tex. Cr. App. 1979).
However, Relator would call the Court's attention to the case of
La Porte vs. State, 840 S.W.2d 412, at 413-414 (Tex. Cr. App. 1992),
wherein the Court of Criminal Appeals found that this conclusion was
clearly erroneous, and overrule Coughorn. See La Porte vs. State, 840
S.W.2d 412, 413-415 (Tex. Cr. App.1992).
Relator contends theres been a intervening change in the law.See
La Porte vs. State, 840 S.W.2d 412,413-415 (Te2c. Cr. App. 1992).
A sentence not authorized by law is void. Heath vs. State,817 S.W.
Page 20.
2d 335 (Tex. Cr. App. 1991); See also Wilson vs. State,677 S.W.2d 518
(Tex. Cr. App. 1994). A defect which renders a sentence void may be raised
at any time. Ex Parte Mclver,586 S.W.2d 851,854 (Tex. Cr. App. 1979);
Ex Parte Shields, 550 S.W.2d 670, 675 (Te~. Cr. App. 1977).
Relator has always complained to this Court that Relator had a Plea
bargain agreement for two (2) four (4) year sentences that would run
concurrently, and in which would be suspended and probated. Relator raised
the claim of the unkept plea bargain by Pro Se Brief on direct Appeal.
Hhich was never considered on Appeal due to the Cou~t of Criminal Appeals
setting asside the cumulation order and deleting it as ineffective. However,
on rehearing by the State it·was restacked and Relator has did ~he whole
sentences as stacked and Relator has suffered t~e full prejudicial ~arm by
this cumulation order on rehearing. See Gordon vs. State, 575 S.W.2d 529 1
at 534-535 (Tex. Cr. App. 1979). Relator therefore concludes that the
correct thing for this Court to rule is that Relator is entitled to relief
pursuant to the cases of La Porte vs. State, 840 S.W.2d 412 (Tex. Cr.App.
1992), and Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993), and Ex Parte
McJunkins, 954 S.W.2d 39, 39~43 (Tex. Cr. App. 1997).
Relator contends that he should be heard on these matters and Relator's
convictions in cause number 10085 and 10238W should be found in error and
grant Relator reversal of these convictions and set them for retrial.
Relator would also contend that this Court of Criminal Appeals should
also set asside Relator's sentence in cause number 22778 as a void
conviction may not be used to enhanc2 an individual's sentence under the
Texas Statute. Burgett vs. State of Texas, 389 U.S.109~ 112-13, 88 S. Ct. 258,
260-61,19 L.Ed. 2d 319 (1967). See also Martinez vs. Estelle,612 F.2d 173,
175 (5th Cir 1980); as Relator also claims that Relator's Counsel Larry M.
Thompson at the 1980 trial was ineffective because he failed to investigate
the validity of Relator's 1977 ·convictions, and that he wrongly advised
Page 21.
Relator to plea true to the enhancement counts of cause number 10085 and
10238W.without explaining to Relator what the plea of true intended and
it's consequence and failed to investigate the void convictions and he
allowed Relator to be enhanced by the prosecutor whom used the 1977
convictions for enhancement when he should have known that they were
void convictions. See Cook vs. Lynaugh,821 F.2d 1072 (5th Cir. 1987); See
also La Porte vs. State, 840 S.W.2d 412 (Tex. Cr. App. 1992).
And lastly, Relator's sentence in cause number 13,472, should also
be reversed for resentence 7 as Relator was wrongly enhanced by cause
number's 10085 and 10238W as they are void convictions pursuant to La Porte
vs. State,840 S.W.2d 412 (Tex. Cr. App. 1992), and Ex Parte Sims,868 S.W.
2d 803 (Tex. Cr. App. 1993), and Ex Parte McJunkins,954 S.W. 2d 39,39-43
(Tex. Cr. App.1997); See also Martinez vs. Estelle,612 F.2d 173,175 (5th
Cir. 1980); See also Spen~er vs. Texas,385 U.S.554, 87 S.Ct. 648,17 L.Ed.
2 d 6 0 6 (1 9 6 7 ) .
In Ex Pat~e Stuart, 653 S.W.2d 13, the defendant challenged
conviction, and the prior convictions uded to enhance itt through
numberous applications for writ of habeas corpus Id. At one point,we
cited Stuart for abuse of the writ process Id. Seven years after his
conviction, Stuart, again sought habeas relief challenging the use of
the prior conviction '. i ·__.. to enhance his sentences. Id. at 14. We found
that Stuart's claims had merit in light of changes in the law following
our affirmance of his conviction. Id. We then held that under Cooper vs.
State, 631 S.W.2d 508 (Tex. Cr. App. 1982), and Ex Parte Augusta, 639 S.W.
2d 481 (Tex. Cr. App. 1982), Stuart was entitled to relief retroactively.Id.
653 S.H. 2d at 14 .. 15.
Thus it is readily apperent in light of Schuessler and Stuart, that
previous litigation· of the issue does not necessarily bar it's reconsideration
Page 22.
on habeas corpus. See Ex Parte Drake, 883 S.W.2d 213 (Tex. Cr.App.1994).
See also Ex Parte Lemke, 13 S.W.3d 791 (Tex. Cr. App. 2000).
Relator has wailed like a stuck pig for years \vhile this Court has
denied Relator an opportunity to be heard by this Court on Relator's
convictions in cause number 10085 and cause number 10238W, as being a
unkept plea bargain.
The Coprt's have performed such serious surgery on the great writ,as
it applies to postconviction habeas corpus proceedings.
This Court should not forget what the Supreme Court of the United
States previously pointed out in construing the habeas corpus statutes.
;'vJhile the rhetoric · · celebrating habeas corpus has changed little over
the centuries. (footnote d~leted), it is neverthe less true that the functions
of the writ have undergone drastic change ...
11
(H)abeas Corpus is not a static, narrow, formalistic remedy", Jones vs.
Cunningham,371 U.S. 236, 83 S.Ct. 373,9 L. Ed. 2d 285 (1963), but one
which must retain the ability to cut through barriers of form and
procedural mazes'= (Citations Omitted). The very nature of the writ demands
that it be administered essential to insure that miscarriages of justice
within it's reach are surfaced and corrected. (Citation deleted). Thus we
have consistently rejected interpretations of the habeas corpus statutes
that would suffocate the writ in stifling formalisms or hobble its
effectiveness with the m_anacles of arcane and scholasti.c procedural
requirem~nt". Hensley vs. Municipal Court, 411- U.S. 345, 93 S. Ct. 1571,
36 L. Ed 2d 294 (1973).
Our habeas corpus law(s) has always been available to obtain release
of any one who is unlawfully restrained of his liberty. See also Ex Parte
Lemke,13 S.W. 3d 791 (Tex. Cr. App.2DOO).
Clearly the failure to hear the merits of Relator's Unkept Plea
bargain agreements would work a "Manifest injustice 11 , as there is
Page 23.
controlling authority in the interim that have made a contrary decision of
law applicable to the disputed issues. Falcon vs. General Telephone Co,815
F.2d 317, 320 (5th Cir. 1987); See also La Porte vs. State,840 S.W.2d 412
(Tex. Cr. App.1992), and Ex Parte Sims, 868 S.W.2d 803 (Tex. Cr. App. 1993),
and Ex Parte McJunkins,954 S.W.2d 39, 39-43 (Tex. Cr. App. 1997); See also
Ex Parte Lemke, 13 S.W.3d 791 (Tex. Cr. App. 2000). Plain error was committed
which, if not noti6ed, would result in a manifest miscarriage' of j~stice
Coughlin vs. Capito Cement Co,571 F.2d 290, 297 (5th Cir. 1978); See also
Klapprutt vs. United States,335 U.S. 601, 69 S. Ct. 384, 93 L. Ed. 266 (1949).
As there are no time restrictions on a lawsuit of this kind, Relator
may apply for the writ any time Relator feels the burden of multiple
convictions are moie than Relator can bear.
Relator requests that this Court grant the Mandamus, and application
for writ of habeas corpus; order Respondent to show cause why Relator
should not be set at liberty; give a plenary hearing to determine the
facts; and order production by the State of such documentation as may be
necessary for the proper determination of this cause. Relator further
prays that after determining the facts herein, the Court order Relator
freed from further restraints upon his liberty, order cause number 10085
and cause number. 10238W reversed for a new trial in each case and brder
Relator's sentences in cause number's 22778 and 13,472 reversed for (~new
sentencing hearing in cause number 22778 and cause number 13,472 and order
Relator completely discharged from illegal custody of all Court's and
cause numbers and end Relator's illegal confinement from any further
custody or confinement.
RespectfullY. Submitted,
`` .)./~--Al.-~-__;
Robert Go~ ``~319173
Hynne Unit
810 FM 2821
Huntsville, Texas 77349
,, --:- ----
Page 24.
I, Robert Gordon TDCJ-ID#319173, being presently incarcerated at
the Wynne Unit of the Texas Department of Criminal Justice--Institutional
Division, in Walker County, Texas, declare under penalty of perjury that
the foregoing is true and correct. Executed on this ~ay of ____________
--``----``~--------------2015:
Robert Gordon TDCJ-ID#319173
810 FM 2821
Huntsville, Texas 77349
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Exhibit A.
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ART BRENDER
· Attornet al Ltw \
· 1417 E.lgblh Avensu
'I
Pffi Worth, Te:us 76104
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Phon' (817) 921·3731
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March 2,· 1978
.Mr. Robert Gordon
'i
300 West Belkn.ap
Fort Worth, TX .76102
Dear Mr. Gordon:
In response to your letter of February ~3, I would ask
that you have your Attorney, Jeff Kearney, contact.me
concerning the matter. The plea bargains in Judge
.Lindsey'~ Court were, at that ·time, even though not
required by law, placed in the record, and the matters
to which you inquire should be a matter of record.
J
ours,
~
AB:ml
:
-Exhibit A.
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Exhibit B .!
lof3 "?3SS2S .I
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AFFIDAVIT OF CHARLEY VALDEZ i
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STATE OF TEXAS
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COUNTY OF WALKER \
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BE~ORE ME, the undersigned, a Notary Public in andforthe State ofTexas, on this day
personally appeared Charley Valdez, who, after being duly sworn, deposes as follows:
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"My ha.tne is Charley Valdez. I am ever tv.renty--one years of age, of sound mind; {'.a:pabie
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of making this affidavit; and personally acquainted with the facts herein stated.
I am employed ~s Program Specialist III for the Classification and Records Division
("CRD") of the Texas Department of Criminal Justice-Corrections Institutions Division, and my
office is located inHuntsville, Texas. I have reviewed time records kept by the CRD regarding
:..
r--~ ~,. .: offender Robert Gordon; TDCJ # 319173. CRD maintains these records in the regular c.01me of
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I bu~iness of every offender confined; and it was the regular course of business for an employee or
1
r,ept;_esent;:ttive to. TDCJ-CID with knowledge of the act, event, condition, opinion or diagnoses,
recorded to make the record or to transmit information thereof to be reasonably soon thereafter.
'. ~.~
Based on my review of these records, the following table contains the current senter~·~e . i•.
information for Gordon.
Exhibit B 1 of 3 Pages
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! Exhibit B 1 of 3 Pages
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Coun~:y T Causr;; Number Sentence 1-----·------
Sentence
Date
Sentence Begin
Date
II Projected
Mandatory
Maximnrn
Expiration
1
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1--···--··------ J I l -
Release
Daie
Date
! Credit C:u-d I
,--.
I Abur.e
--------·-+
Tarrant 22778 20.:1..``~-- 4-6-1981 6-26-1980 9-25-2037 11-22-2097
I
f Agp::·~1vated
As,{au!t' W/DW
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Walter
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13,472 99-years
consecutive to
r.ause#12778
5-20-1986 Consecutive 9-25-2037 11-22-2097
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Ofhnder (Jordon was received into TDCJ custody on 5-ll-1981 from Tarrant County on a 20-year
Il sentence. Offender Gordon is charged with Credit Card Abuse by the Number Four District Court under
czuse numb<;;r 22778. Offender Gordon is c.harged for an offense occurring on 6-23-1980, with sentencing
II on 4-6-1981, and to begin on 6-26-1980.
l
·~ .
While in TDCJ confined at the TDCJ-Ellis Unit in Walker County, offender committed the offense of
Aggravated Assault with A Deadly Weapon. Offender was sentenced to an additional 99-year sentence by
the 12m Judicial District Court under cause number 13,472. Offender Gordon is charged for an offense
occurring on 10-16-1984, with sentencing on 5,..20-1986, and with jail credit allowed from 10-16-1984. This
;
changed the net sentence from 20-years, to 119-years. The offender under cause number 13,472 is eligible
i for mandatory supervision, but is flat calculated for parole eligibility. Offender has a current parole review
:.-·
date of 1112009.
On 10-16-2001 pre-sentence jail credit':l of 5& l-days was applied on cause number 13,472. The cumulative ·
begin date was changed from 6-26-1980 to 11-23-!978 due to the 581-days of cumulative jail
."Cl'lt(:!l·;;;;
"'1 ~redits pur!'uant to Ex partP. Bynum, 772 S.Vl. 2d 113 (Tex. Crim. App. 1989).
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i1 Prior to 1987, sentences were aggregated according to statute. Article 6181-1, V.T.C.S., Sec,.1(4) Defining
:-~
:l "tenn'~ provided: ''\\'hen two or more sentences are to be served consecutively and not concurrently,. the
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aggregate of the sentences shall. be considered the term for purposes of this Article." The statut~ry
demarcation for purposes of consecutive computation was discussed by the Court of Criminal Appeals in Ex.
parte Hannington, 832 S.W.2d 355 (Tex.Crim. App. 1992).
This is a record of offender's time earning status's to show promotion and demotion dates:
N()TE: Effective April 1, 1995, the practice of backdating was . discontinued per Board of
, Correction Polic::..y~:--~·______________.....:...,____________
·Tr'i-23 1978 ·:ro 06 13 1982 RATE: S4 I 06 14 1982 TO lO 04 1982 RATE: L2
l ::;~5 i932TOD52.2l933RATE:L3 j05231983T007091983RATE:L2
I ;)7 10 i983 TO 10 25 1983 RATE: S4 110 26 1983 TO 05 10 1984 RATE: L2
I OS ll 1984 TO 05 31 1987 RATE: L3 I 06 01 1987 TO 09 29 1987 RATE: L3 B
09 30 t987 TO 12 21 \987 RATE: L2 B 112 22 1987 TO 03 22 1988 RATE: S4 B '
\
03 23 1988 TO 12 15 1988 RATE: L2 B 112 16 1988 TO 07 24 1989 RATE: L3 B
07 25 1989 TO 10 24 1989 RATE: L2 B jlO 25 1989 TO 05 10 1990 RATE: S4 B
05 l 1 1990 TO 08 06 1990 RATE: L2 B I 08 07.1990 'FO 01 21 1991 RATE: L3 B
,, ', 01 22 1991 TO 04 22 1991 RATE: L2 B I 04 23 1991 TO 08 16 1991 RATE: Ll B
\!';Jg 17 l991 TO 09 30 2001 RATE: L3 B 110 012001 TO 10 09 2001 RATE: L2 B
. 10 lO :~001 TO 06 03 2004 RATE: L3 B I 06 04 2004 TO 02 lO 2005 RATE: L2 B .
I i~2. ~t 1 20!)5 TO
09 28 2006 RATE: L3 B I 09 29 2006 TO 03 28 2007 ~:rE: LI-B
; (r3 29 2007 TO
i
:
-----
. RATE. S4 B I - .- - - TO - - - - - R..o\.fE. - -
!..-------··----------------------------------- J
Exhibit B 2 of 3 Pages
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Exhibit B 3 of 3 Pages
OD:ender Gordon completed his GED on 6-1-1987 and was awarded 60-days of good time credit on
9-!S--1987. {)tfender has a total of30-years, 1-month, and 23-day:> offlat time served, 12-years, 2-months,
m>d :1--days of good time, and 1-month, and 30-:1ays of hc-mls time credit~.
p
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r, (;::;·;;w;iers in administrative segregation shall be awarded only the amount of good conduct time
\\
I n·rdit based on their time-earning status, for ~ts loug as they remain assigned to administrative I
se:;rq~adon status. These offenders shall not be :twa1·ded the "diligent participation" good conduct
dme credit.
Pmsuant to TEx; GOV'T. CODE § 501.0081, this office received a time dispute resolution forms frcm
n fr:.::nder en 7--12-200 l, ~nd responded to the offender on 10-16-2001. This office responded to the offt'nder
~i1;:,t tbem was no error in his cunent time c.alculations. The offender was further advised that if he was
.:b:;'Jtid1ed with this re~;ponse that he should {:ontact State Counsel for Offenders tor further assisti1n•::e.
.. ..........
CHARLEYVAU z
Program Specialist ill
Classification
. and .Records
Texas Department of Criminal Justice
Corrections Institutions Division
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SUBSCRIBED AND SWORN TO before me, the said No~uy Public on this the 15th
day of Janui:uy, 2009, to certify which witness my hand and seal of office.
~
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Notary Public In and For
\ The State of Texas
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Exhibit B 3 of 3 Pages
. :f--._____ .
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Exhibit C 1 of 2 Pages.
~-
EX PARTE ROBERT GORDON
Habeas Corpus Application
WRIT NO. 10,271 From TARRANT County
·,:
0 R D E R
This is an application for a writ of habeas corpus which was
submitted to this Court by th~ trial court pursuant to the provi-
sions of Art. 11.07, V.A.C.C.P. Ex parte Young, 418 S.W.2d 824
(Tex.Cr.App. 1967).
In 1977, the applicant was convicted of the offenses of
unauthorized use of a motor vehicle and theft in Tarrant County
cause numbers 10085 and 10238W. Punishment was assessed at impri-.
sonment for four years in each case. These convictions were
affirmed on direct·appeal. Gordon v. State, 575 S.W.2d 529
(Tex.Cr.App. 1978). In 1981, the applicant was convicted of the
offense of.credit card abuse in Tarrant County cause number 22778.
Punish~ent, enhanced by proof of the prior conviction for
unauthorized of a motor vehicle, was assessed at imprisonment for
20 years. This conviction was affirmed on direct appeal. Gordon
v. State, 638 S.W.2d 654 (Tex.App.--Ft. Worth, 1983).
In his present application, the applicant contends that there
was a bona fide doubt as to his competence to stand trial in 1977,
as well as to his sanity at the time of those offenses. This
application, however, presents a more serious question. This
Court's records reflect that, in addition to his direct appeals,
the applicant has filed fi;,·e previous applications challenging
one or more of these convictions.
It is obvious from the record that'the applicant is con-
tinuing to raise issues which have been presented and rejected or
should h~ve been presented on direct appeal and in his prior writs.
'~'':'-" ~ri_t: __ nf_· hah::!.aS, ..f:o.rpus J~-t~o~_se:r:;:i.ous _and important <:t matter to
. -- . - ·----·-. -· ·-.:.. . ...,....._.: ··:~ ~- ..· . -
be lightly and easily abused. See Ex parte Carr, 511 S.W.2d 523
(Tex.Cr.App. 1977): Sonders v. United· States, 373 U.S. l (1963).
See.a1so- Smith v. ~stelle, 562 F~2d 1006 (5th Cir. 1977); McDonald
v. Estelle, 590 F.2d 153 (5th Cir. 1979); Potts v. Zant, 638 F.2d
727 (5~ Cir. 1981); Hansen v. Estelle, 641 F.2d 250 (5th Cir. 1981)
(delayed applications) •
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Exhibit C 2 of~ P9ges \ ,_
~
PARTE GORDON [P<::ge -2-1
We hold that the applicant's contention is not only without
merit, but has been waived and abaondoned by his abuse of the writ \
of habeas corpus.
Therefore, the Honorable Thomas Lowe, Clerk of the Court of
Criminal Appeals, is not to accept or file the instant application
for a writ pf l}$eas.qorpus . . ~e is also instructed not to accept
in the future any applications for writ of habeas corpus att~cking
these convictions unless the applicant has first shown that any
contentions presented have not been raised previously and a showing
is made that they could not have been pre~ented in any ea~lier
1/
application. for habeas corpus relief.- Ex parte Dora, 548 S.W.2d
392 (Tex.Cr.App. 1917); Ex parte Bilton, 602 S.W.2d 534 (Tex.Cr.
App •..19 80) .
. IT IS SO ORDERED. this the 25th day of Hay, 1983.
PER CURIAl-1
En bane
1
In Ex parte Dora, supra, this Court explained the duty of the
trial court after the entry of an abuse order as follows:
.,Where a petitioner has been previously cited for
an 'abuse of the Great Writ,' the trial court
should not thereafter consider the merits of any
application for writ of habeas corpus filed by
that petitioner. The trial court should, however,
review the application and make findings that this
petitioner has abused the writ in the past, thus
making the review procedure of this Court more
efficient. The transcript should be forwarded to
this Court, just as in all other cases, pursuant to
our automatic review jurisdi~tion. SeP Ar~. 11.07,
Sec. 2(aj, ~upra. Th~ writ t=-an.:>c.~:ivt~should,~of
course, be forwarded to this Court within fifteen
days of the trial co~rt's order. See Art. 11.07,
Sec. 2(c), supra,"
I
(
A True CoPY
Atte~t:
Tnorr,as t.o-. . . of Texa~
court of
B~
Exhibit C 2 of 2 Pages .
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. 200 \Y. tj~L.i.\.:.'11... ,..._tL•~l .i.•LUU.t'-. 1.,-.i\.UU.!.·;.J.J..-;. __..,_. ,u !JlJlL.i.Jl~"·~ . · ...
"l.'el'~phone: .~;:!-1-U-i-01) Of.{ _)Hv1.:r::;: 8:00 .A. r.r. to -t::so P. ~L .:.Icin.day ~l-;rough FridnyExb"ibi ~ge
- . . . · .. coi1D.ITIONS OF
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PROBA:tin:L~T: , . . . 3.. \. . ':.
TlLS STATE OF 'G:US 1X CRDITN..tJ..L DISTRICT COURT NQ.;_;___ _~
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VS. NO. / v (. v-- 1 TAlliUu..;-T COUNTY, TEXAS "I
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:.7.:-.nt County, Texns.
1t h t.~e ORD2£~ of the Court th6.t you sh~l comply 1\-ith the following terms 2:-:d coaditions of Prob!Lt!on:
c..-Jr.mlit no off~'>_n.:;e nininst the laws of this State or nny other State or the Unit-ed St.-.tes;
A ·;:::~id i:nj urious or vicious habits;
``id persons far as possible; ·
f·:~-:m:lin v.ithin the limits of T1~.rrant County, Texas, unless given permission by the Tarrant County Adult
,·``ba:ion Officer to leave therefrom;
pport your clepenclent3;
· ,I
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:"TT'cnt to be made on the fr-. fl-- day of \..\````.1..;.-?u·t..:.f-:'·:__ _ _ _ _ , 19-ZZ, and a like payment
t-_).~ ti1e ~ ·_/-1.._ dar of each month there~-:fter until fulC~ayme!;lt is made; \\
. :. e •. on...o..rro.:, FEE m the amount of S I t•. Oo on the ( f/.... day of_ __,'Y..:.,....J..f.:.:•.t..:....:r:...::-"'~.;.·-----. 19~.
ancl on t`` ~, fk .cby of each month thereafter during Prohation; fJ
2. TIESTITL'TIO~ in the amount of $ t the rate of $ ' - - - - per_ _ _ _ _ _ _ __
t!1e first p~yn1ent tc.. be made on the · clay o , 19----. and a. like payment
on the dny of each month. thereaftef tmtil full pay'ment is made;
<1. FTIE i:1 t!te amount of $ at the rate of$ · per : the first
pc:.yment to bE: made on th clay of . ,·19__, and a like payment on the
_ _ _ _ clny of each month thereafter until full payment is made.·
Submit to <'. period of detention in the County Jail of Tarrant County, Texas, to serve 2. term of imprison-
ment of clays, to begin on the. day.of 19-
FILED .
CRI!.lli'll.!.. GlSTRICT COURT No. ~­
.TAR``-~ii COIJ:'IIf. TEXAS
"1."-V·lo
,,, •.~ . ,_ "C77
1-.~1 ·
\ J. \'/. BOORMAN
:~····-----·~----...,..--·-. --- ·-·---~-
This day, a copy of the conditioM of Probation was hanrled to me by~the Clerk _;!,tliis Court.
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