May 5, 2015
Texas Court of Criminal Appeals vI ;r (!rfK'1.:, f I~ 0 /1').;
RE: MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS MOTION FOR EMERGENCY STAY OF PROCEEDINGS
D~~~ Clerk of the~court:
Enclosed please find the following documents for filing with the C~A~.l~~OiS I respectfully request you bring these matters to the courts attention as promptly as possible: .Abe' Acosta, Clerk 1. Motion For Leave To File Petition For Writ of Mandamus; and 2. Motion For Emergency Stay of Proceedings. Thank you for your time and consideration. God Bless You!
Respectfully Submitted,
Randall Bolivar, Pro Se cc; Chief Staff Attorney, 13TH Court of Appeals f- lite.... ~.l."'-T•••;(.Ju•·•n;J '7~1!/- tJ...':;"/8 06~/ ?.tt>i i:(~~ Cameron County D.A.'s Office ~ ...·" •..
CAUSE NO.
IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS RANDALL BOLIVAR, § Realtor § Relief Sought From Order of § Thirteenth Court~of Appeals vs. § Cause No~ 13-14-00157-CR § THIRTEENTH COURT OF APPEALS, § Respondent §
MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: Comes now Randall Bolivar, Realtor pro se, and. respecfully.moves the Court ·to grant leave to fil~ a petition for writ~of mandamus, pursuant to Rule 72, Texas Rules of Appellate Procedures. Realtor asserts that th8 matters that he intends to raise are extraordinary in Texas Jurisprudence, once he is able to obtain a complete record of which is the primary focus of ~mis complaint and request for relief. Wherefore, Realtor prays the Court will GRANT LEAVE. Respectfully Submitted, ;£__/U~ Randall Bolivar, Pro Se4 Realtor Ellis Unit, TDCJ .# 1719379 1697 FM 980 Huntsville, Texas 77343 CAUSE NO.
IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS RANDALL BOLIVAR, § Realtor · § Relief Sought From Order of § Thirteenth Court of Appeals vs. § Cause No, 13-14-00157-CR § Thirteenth Court of Appeals, § Respondent §
MOTION FOR EMERGENCY STAY OF PROCEEDINGS
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: Comes now Randall Bolivar, Realtor pro se, and re~pectfully ma~essthis
Honorable Court to STAY the proceedings in Cause No. 13-14-00157~CR from the Thirteenth Court of Appeals. In support shows: 1. Realtor's Appellate Brief is due to be filed in the appellate court on or before May 14, 2015. 2. Realtor has not received a complete copy of the Clerk's Record. 3. Realtor has filed a motion to abate the appeal in order to supplement the record, and have a copy provided to Realtor, and it was denied. 4. The record is devoid of written findings of fact and conclusions of law on the motion to supress statement challenging the voluntariness. 5. Realtor filed ammbtion to abate.the appeal to enter findings, but it was unexplicably dismissed as moot. 6. Real tor· is incarcerated and has no way::: by which to notify by expedited means any other party, but is being notified as promptly as possible. 7. Realtorohas no ability to exercise ~ts due dilligence be~ond what has already been exercised with all parties, at all levels. Wit~o~t the emergency stay of proceedings, Realtor would suffer irreparable harm. Wherefore, Realtor prays the Court will GRANT the STAY of proceedings. Respectfully Submitted,
~~ Randall Bolivar, Pro Se Realtor Ellis Unit, TDCJ # 1719379 1697 FM 980 Huntsville, Texas 77343 CERTIFICATE OF SERVICE
I, Maria s. Rey, certify that a true and correct copy of the above and fore-
qoing documents were served on opposinq counsel for the State at:
Cameron County District Attorney's Office Chief Staff Attorney 901 Leopard St., 10th Flr. 964 E. Harrison St. Corpus Christi, Texas 78401 Brownsville, Texas 78520
Service upon counsel was made by fax, First Class Mail, or hand-delivery.
SIGNED AND SERVED ON THIS1JDAY OF ;lljtJ:}
List of Motions: Motion .For leave to File Petition For Writ of Mandamus Motion For Emergency Stay of Proceedings I'
Randall Bolivar# 1719379 Ellis Unit 1697 FM 980 Huntsville, Texas 77343
May S, 2015
Texas Court of Criminal Appeals Clerk of th= Court P. 0. Box 1 2308, Capitol Statdlonr• Austin, Texas 78711-
RE: PETITION FOR WRIT OF MANDAMUS ·c AND EMERGENCY STAY OF APPELLATE PROCEEDINGS
Dear Clerk of the Court:
Enclosed for filing with the Court, please find my PETITION FOR WRIT OF
MANDAMUS AND EMERGENCY STAY OF APPELLATE PROCEEDINGS.
I humbly request that this matter be prompty brought to the attention of
the ~ourt due to the time constraints invloved.
Thank you for your time and consideration. God Bless You!
Randall Bolivar, Pro Se
cc: Chief Staff Attorney, 13TH COurt of Appeals4--\/'1ft riS:2.11i;:.l&i> 1'11-:+1!. 'k11/ os!o GCJOI 'IJ1CI ;t.S(., Cameron County D.A.'s Office I' \1
IN THE TEXAS
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
IN RE RANDALL BOLIVAR, REALTOR
vs. THIRTEENTH COURT OF APPEALS, RESPONDENT
APPELLATE CAUSE NO. 13-14-00157-CR FROM THE THIRTEENTH COURT OF APPEALS, EDINBURG, TEXAS TRIAL COURT CAUSE NO. 09-CR-2869-A FROM THE 107TH DISTRICT COURT, CAMERON COUNTY, TEXAS
PETITION FOR WRIT OF MANDAMUS AND EMERGENCY STAY OF APPELLATE PROCEEDINGS
RANDALL BOLIVAR, PRO SE REALTOR ELLIS UNIT, TDCJ # 1719379 1697 FM 980 HUNTSVILLE, TEXAS 77343 ,· Identity of Parties
REALTOR!:
Randall Bolivar, Realtor
Randall Bolivar, Pro Se Ellis Unit, TDCJ # 1 719379 1697 FM 980 Huntsville, Texas 77343
RESPONDENT:
Thirteenth Court of Appeals, Respondent
Chief Staff Attorney, for Respondent Nueces County Courthouse 901 Leopard St., 10th Floor Corpus Christi, Texas 78401
ii TABLE OF CONTENTS
Id~ntity of Parties ii Table of Contents iii Index of Authorities iiii I
Statement of Case 1 Staement of Jurisdiction 2 Issues Presented 3 Statement of Facts 3 Arguement and Authoriti~ 4 Issue # 1 4' Respondent court failed or refu~ed to act in accordance with its mi~isL~~i~ ministerial duty to ensure Realtor was provided a complete Clerk's Record on appeal, pursuant to RULE 34~5(a), TRAP, and order from the trial court. Issue # 2 5 Respondent failed or refused to act ih accordance with its ministerial dutyvto have the trial court enter written findings of fact and conclusions of law regarding th~ contested voluntariness of Realtor's custodial statement to police, as required under ARTICLE 38.22 § 6, CCP and WICKER V. STATE, 740 SW2d 779 (CCA 1987); or in the altern~ ative, order a new hearing on the motion to supress statement. Issue # 3 6 Respondent dismissed as moot a matter which is, apparent from the ~sco~,1 record, still a live controversy and needed by Realtor for appellate briefing. Summary of the~Arguems~t 7 Prayer for Relief 7 Notice of Pro Se Litigants 7 Certification of Service 8 Verification by Affidavit 8 Notice to Interested Parties 8 Ap,Jendix
iii INDEX OF AUTHORITIES STATUTES: Article 3B.~2 § 6, cce . .2' 3' '5 Rule 25. 2, TRAP ' . 4 Rule 33 .1 , TRAP .. 4 Rule 3.4. 5, TRAP .. . 1 ' 3' 4 Rule 52, TRAP .. . . .. . 1 TEXAS CONSTITUTION: ARTICLE 5, Section 5(c) 1' 2
CASE LAW: AMADOR V. STATE, 221 SW3d 666, 676-77 (CCA 2007) . .4 BONHAM V. STATE, 644 SW2d 5,B (CCA 19B3). • 5 DAVIS V. STATE, 499 SW2d 303 (CCA 1973). 5' 6 DEMOSS V. GRAIN, 636 F3d 145 (5TH CIR. 2011). 6 DYKES V. STATE, 649 SW2d 633,636 (CCA 19B3). • 5 FIGUEROA V. STATE, 473 SW2d 202 (CCA 1971). 6 GREEN V. STATE, 906 SW2d 937 (CCA 1995). 5 HARRIS CO. APP2~DISt.~H~TGffi~STAL CffiQBIDS,L105~3B,183S~~~.A~~-~6Uatpn1~999). .4 IN RE BENAVIDES, 403 SW3d 370 (Tx. App. SanAAntoriio 2013). 6 IN RE COLONIAL PIPELINE CO., 96B SW2d 93B (TEX. l99B). 2 JACKSON V. DENNO, 37B U.S. at 391, B4 S.Ct. at 17BB (1964). 5 JOHNSN V. QUARTERMAN, 595 F.Supp2d7Y35 (S.D. Texas 2009). .7 MANNING V. ENBRIDGE PIPELINES, 345 SW3d 71B (Tx.App. Beaumont 2011). . 6 McKITTRICK V. STATE, 535 SW2d B73;B76 (CCA 1976). 5, 6 MENDEZ V. STATE, 135 SW3d 334(CCA 2004). . . 7 NAVISTAR V. VALLES, 740 SW2d 4 (Tx.App. ElPaso 19B7). • 4' 6 NEVEU V. CULVER, 105 SW3d 641, 642 (CCA 2003). 2 RANGRA V. BROWN, 566 F3d 515 (5TH CIR. 2009). .6 STATE V. DUNBAR, 297 SW3d 777, 7BO (CCA·2009). 4 STATE EX REL. HILL\!V. FIFTH COURT OF APPEALS, 34 SWl3d 924, 927 (CCA 2001) .... 2 STATE EX REL. ROSENTHAL V. POE, 98 SW3d 194, 19& (CCA 2003). . 2 STATE EX REL. WILSON V. BRIGGS, 171 TEX.CRIM.479, 351 SW2d 892. (1961) . . . .2 U.S. V. BANKS, 624 F3d 261 (5TH CIR. 2010). '· 6 U.S. V. ROBINS0N, 7B F3d 172 (5TH CIR. 1996). .7 UTPA V. DE LOS SANTOS, 997 SW2d 817 (Tx.A~~~ Corpus Christi 1999) ......... ~ .. 4 VANCE V. HATTEN, 508 SW2d 625 (CCA 1974). • 2 WICKER V. STATE, 740 SW~d 779 (CCA19B7). 2, 3, 5 WHITEHEAD V. STATE, 130 SW3d 866 (CCA 2004). 4
iiii CAUSE NO.
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
APPELLATE CAUSE NO. 13-14-00157-CR FROM THE TIRTEENTH COURT OF APPEALS, EDINBURG, TEXAS
TRIAL COURT CAUSE NO. 09-CR-2869-A FROM THE 107TH DISTRICT COURT, CAMERON COUNTY, TEXAS
PETITION FOR WRIT OF MANDAMUS AND EMERGENCY STAY OF APPELLATE PROCEEDINGS
TO THE HONORABLE JUDGES OF THE COURW OF CRIMINAL APPEALS:
Comes now Randall Bolivar, Realtor pro se, in the above-styled and numbered cause of action and respectfully files this Petition For Writ of Mandamus and ~mergency Stay of Appellate Proceedings, pursuant to RULE 52 of the Texas Rules of Appellate Proc~dure (TRAP); ARTICLE 5, SECTION 5(c) of the TEXAS CONSTITUTION; and mandates of this Honorable Court. Realtor humbly requests this Honorable Court grant this petition and stay the appellate proceedings from which this matter arises. In support,,Realtor respec- tfully shows the Court as follows: STATEMENT OF THE CASE Realtor seeks relief from Respondent's~;Denial of Appellant's Second Motion to Abate The Appeal- S~pplementation of the Clerk's Record as Ordered by the Trial Court, in which Realtor sought to have the trial court's cl7rk provide the Realtor with a complete copy of the entire Clerk's Record pursuant to an order by the trial court and RULE 34.5 (a), TRAP, (1 /8) Additrnonally, Realtor seeks relief from Respondent's Dismissal as Moot of Realtor's Appellant's Third Motion to Abate the Appeal- Required Written Find- ings of Fact and Conclusions of Law, in which Realtor sought to have the trial court provide written findings of fact and conclusions of law regarding the contested voluntatiness of his custodial §~~tement to police, pursuant to the mandatory language of ARTICLE 38.22 §6, TEXAS OODE OF CRIMINAL PROCEDURES (CCP), and WICKER V. STATE, 740 SW2d 779 (CCA 1987). Respondent is the Court of Appellate jurisdiction for the Thirteenth District of Texas which sits in Corpus Christi-Edinburg, Texas. Realtor filed the two motions,v~rna certified mail no. 7014 0510 0001 2015 1556, and Respondent denied the Second Motion To Abate, whi~e dismissing as moot the Third Motion To Abate, on April 29, 2015. No written order or opinion were entered by the Respondent. The Appellate Brief is currently due to be filed on or before May 14; 2015. Hence, Realtor seeks a stay of appellate proceedings. STATEMENT OF JURISDICTION In pertinent parts, ARTICLE 5, SECTION 5(c) of the TEXAS CONSTITUTION states: '' ... the Coutttof Criminal Appeals, and the Judges thereof shall have the power to issue the Writ of Habeas Coipus, and in Criminal matters, the Writs of Mandamus ••. " "The Court and the Judges thereof shall have the power to issue such other Writs as may be necessary to protect its jurisdiction or enfo~ce its judg- ments." The Court of Criminal Appeals is court of last~resort in Criminal matters and no other Texas court has authority to overrule or circumvent decisions, or dis- obey mandates. STATE EX REL. WILSON V. BRIGGS, 1J1 Tex. Ctim. 479; 351 SW2d 892 (1961); VANCE V. HATTEN, 508 SW2d 625~(CCA 1974). The CCA has jurisdiction in a matter where a Defendant has no "adequate app- ellate remedy, and therefore [can] obtain mandamus relief from order." IN RE COLONIAL PIPELINE CO., 968 SW2d 938 {Tex. 1998). An en bane Court wrote: "Mandamus relief may be granted if the realtor can demonstrate-that 1) the act sought to be compelled is purely .ministerial and 2~'that realtor has no other adequate legal remedy. STATErEX REL. ROSENTHAL V. POE, 98 SW3d 194, 198 (CCA 2003). The ministerial act requirement has been described: as a requirement that the realtor have 'a clear right to the relief sought' meaning that the relief souhgtEmust be 'clear and indisputable' such that it merits are ~~~ygrid dispute' with 'nothing left to the exe- rcise of discretion or judgment.' Id., quoting STATE EX REL. HILL V. FIFTH COURT OF APPEALS, 34 SW3d 924, ., 927-28 (CCA 2001 )."NEVEU V. CULVER, 105 SW3d 641, 642 (CCA.2003)(EN BANC). Under the facts and circumstances in this case, this matter is properly (2/8) ,before this Honorable Court, as Realtor has no other adequate appellate remedy. ISSUES PRESENTED 1. Respondent court failed or refused to act in accordance with its ministerial duty to ensure Realtor was provided a complet~ Clerk's Record on appeal, pu- rsuant to RULE 34.5(a), TRAP, and order from the trial court. 2. Respondent failed or refused to act in accordance with its ministerial duty to have the trial court enter written findings of fact and conclusions of law regarding the contested voluntariness of Realtor's custodial statement to police, as required under ARTICLE 38.22 § 6, CCP and WICKER V. STATE, 740 SW2d 779 (CCA 1987); or in the alternati~e~ order a new hearing on the motion to suppress statement. 3. Respondent dismissed as moot a matter which is, apparent from the record, G still a live controversy and needed by Realtor for appellate briefing. STATEMENT OF FACTS CLERK'S RECORD: 1. Clerk's Record was filed in the appellate court on or about May 27~ 2014, consisting of one volume of 130 pages. 2. After abatement, and remand, the trial court ordered the District Clerk to supplement the record, to include all filings 1Supp.RR:pp.19and22), and pro- vide Realtor with the same. . 3. Clerk filed a Supplemental Clerk's Record on ot about March 18, 2015; how- ever, it was filed under the wrong cause number .. (filed in 13-15-00157-CR), consisting of 288 pages. 4. Realtor filed his Appellant's Secorid Motion To Abate The Appeal- Supplemen- tation of The Clerk's Record as O~dered by The Trial Court, via certified mail no. 7014 0510 0001 2015 1556. 5. Realtor filed his Appellant's Notice of Advisory and ·Affidavit in Support Thereof, via certified mail no. 7014 0510 0001 2015 1525, notifying Respond- ent, Trial Judge, and opposing counsel for the State of the failure or refu- sal to provide Realtor with.the complete Clerk's Record as ordered. FINDINGS OF FACT AND CONCLUSIONS OF LAW: 1. ~ealtor filed a Motion To Suppress The Statement of the Accused(KCR-1:p.12), andaa hearing was held on December 2, 2010. (RR-8). 2. Realtor attacked the voluntariness of his statement. (RR-8:p.27). 3. Realtor filed a Post-trial Motion Requesting Findings of Fact and Conclusions of Qaw. (Supp.CR-1 :pp. 103 ~nd 125- however, a page filed is missing from the record as filed). 4. Realtor initially refused to give a statement and indicated on his Miranda Ri©bts Form, that he wanted his attorney present. (RR-8:p.56;RR~28:SX 1). 5. Realtor testified that even after he refu~ed to give a statement and request counsel, that detectives continously prompted him to speak with them and give a formal statement; which he subsequehtly did out of fear o~ repercussions to be felt by his friends whom were arrested with him. (RR-8:pp.43-46). 6. Realtor filed, pro se, Appellant's Third Motion To Abate The Appeal- Requir- ed Written Findings of Fact and Conclusions of Law, via certified mail no. 7014 0510 0001 2015 1556, in the appellate court • . ( 3/8) On April 29, 2015 Respondent DENIED Appellant's Second Motion To Abate, and DISMISSED AS MOOT Appellant's Third Motion To Abate. ARGUMENT AND AUTHORITIES Stat~~ory provisions are mandatory and exclusive, and must be complied with in al respects. UTPA V. DE LOS SANTOS, 997 SW2d 817 (Tex. App. CORPUS CHRISTI 1999); HARRI~ CO. ARRRAISAQ DIST. V. COASTAL LIQUIDS TRANS., L.P., 7 SW3d 183 (Tex. App. Houston [1st Dist.J 1999). Additionally,~"A [court] is presumed to have acted within [it's] discretion unless the record discloses to the contary; It must be a ~lear abuse of discretion apparent from the record.'' NAVISTAR V. VALLES, 740 SW2d 4 (Tex. App. El Paso 1987). ISSUES:f1: Respondent court failed or .refused to act in accordance with its ministerial duty to ensure Realtor was provided a complete Clerk's Record on appeal, pursuantt~o RULE 34.5(a), TRAP, and order from the trial court. As filed, or as provided to the Realtor, th~ Clerk's Record is devoid of numerous filings by both parties and orders of the .trial court. Realtor requires the entiterrecord in order to review and appeal ''those matters that were raised ,by written motion filed and ruled on before trial.'' RULE 25.2 (a)(2)(A), TRAP. This is a prerequisite to presenting a complaint. for appellate review. TRAP RULE 33.1(a). In STATE V. DUNBAR, the Court stated: "Rule 33.1 provides that as a prerequisite tp presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a specific and timely request, objection, or motion." 297 SW3d 777, 780 (CCA 2009). Indeed, under RULE 34.5(a), TRAP, "the record mustiinclude" the motions and orders R~altor is requesting be supplemented,and providedtto him, under RULES 34.5(a)(2) and (5). Realtor made a verbal request to the trial. court, which was granted, and submitted written designations in accordance wLth RULE 34~5(c). r The Texas Court of Criminal Appeals (CCA) has previously written: "As we stated in WHITEHEAD V. STATE, [130 SW3"d 866 (CCA2004)], 1 the record may be supplemeDted under appellate rules if something has been omitted, ..• It ensures that the record on appeal accurately reflects all of the evidence that was seen by, used by, or considered by trial. judge at the time he made a ruling ... If the parties have a dispute over what i terns a·re missing from the appellate record, or they dispute the accuracy or completeness of thos~ items, the trial court will resolve that dispute." AMADOR V. STATE, 221 SW~d 666, 676-77 (CCA 2007). . In the instant case, R~altor has disputed the completeness of the record, and - ~·" -~
opposing counsel for the State argued the· recor-d .:was .. lackiling: 1documentation. (see State's Brief, p .18; filed in COA Causer:No. 13-14-00157-CR). Additionally, Real- tor intends on raising issues which will have to be reviewed by Respondent und- er a de novo standard of review. As such, Respondent would be forced to abate (4/8) ·the appeal and order the supplementation if those matters are not in the reco- rd filed. Regardless if they werer filed in the appellate court, RealtorThas not received the complete record and cannot proceed to prosecute his appeal with vigor and lawful tenacity without a complete Clerk's Record to document the dozens of motions filed by parties, trial court's adjudication of motions, and other matters as necessary. Under e&ther theory, the Realtor is suffering from undue delay by the Respondent, and possibly inviting further error. ISSUE 12: Respondent failed or refused to act in accordance with it~ ministerial duty to h~ve the trial court enter written findings of fact and conclusions of law regarding the contested~:voluntaiiness of.Realtor's custodial staiement to police, as required under ARTICLE 38.22 § 6, CCP and WICKER V. STATE, 740 SW2d 779 (CCA 1987); or in the alternative, order a new hearing on the motion to supress statement. It is "apparent from the record" that Respondent failed or refused to act as requited by law. Pursuant to WICKER V. STATE, supra, and its progeny, Realtor is entitled to have the Respondent abate the appeal and order the trial court to produce written findings of fact and conclusions of law regarding the motion to suppress,h6r ab~te the appeal and o~der a new hearing on the motion to supress. In WICKER V. STATE, the. Court smlidified its position on the requi- rement of written findings by the trial court: "Indeed, we reiterate.our prior.holdings to the effect that ARTICLE 38.22 § 6, supra, is mandatory in its language and that it requires a trial court to file its findings of fact and conclusions of law regarding the voluntar- iness of a confession whether or not the defendant objects to the absence of such omitted filing. McKITTR1~K V. STATE, supra, at 876; DYKES V. STATE, 649 SW2d 633, 636 (CCA 1983). The ~rocedure used in the trial court to determine the voluntariness of a defendantts confession must ~be;fully adequate to insure reliable and clear-cut determination~6f the voluntarin- ess of the confession, ~ncluding the resolution of the disputed facts upon which the voluntariness may. depend.' JACKSON V. DENNO, 378 U.S. at 391, 84 S.Ct. at 1788, 12 L.Ed.2d at 924 (1~64)." A few years later in GREEN V. STATE, thisi:Honorable Court once again express- ed its command to Texas trial and intermediate appellate courts on this matter: "When ruling on the admissability of a defendant's statements, the trial court must 'enter an order stating its conclusions as to whether or not the statement was voluntar~ly made, along with specific findings of fact upon which the conclusion was based, which order shall be filed among the papers of the caus~. 1 Tex.Code Crim. Proc. Ann. art. 38.22, § 6. This'Court has held that '[t]he requirements oF Article 38.22, .•• are mandatory and require the trial court to file its findings regardless of whether the de- fendant does or does not object. 1 BONHAM V. STATE, 644 SW2d 5,8 (CCA 1983) (citing McKITTRICK V. STATE, 535 SW2d 873 (CCA 1976); DAVIS V. STATE, 499 SW2d 303 (CCA11973))." 906 SW2d 937 (CCA 1995). The proper action, or remedy, for Respondent to have taken, as conceded by the State (Supp.RR-1 :p.11; State's BriefA p.22 n. 2), is for the app~al to be (5/o) abated to enter written findings. When, like in this case, "no findings are made to support the ruling of the trial court on the voluntariness issue, as in FIG- UEROA V. STATE, 473 SW2d 202 (CCA 1971); DAVIS V. STATE, 499 SW2d 303 (CCA 1973) (opinion on ori~inal submission); McKITTRICK V. STATE, supra, the duty of the appellate court is clear. The proepr procedure is that the appeal be abated and the trial judge will be directed to reduce to writing his findings on the disp~ ted issues surrounding the taking of appellant's confes~ion." GREEN ~t S78ij~
Furthermore, absent written findings, Realtor is unable to properly cite the brief or contest the findings of fact and conclusions of law reac~ed.
Additionally, ~ matter of significant importance is the fact that the State has stipulated to the proper action and remedy. (Supp.RR-1 :p. 11; State's Brief p.22 n. 2). A stipulation constitutes a judicial admission, and is conclusive on the issue adressed, ilihich estops the parties from claiming to the contrary. MANNING V. ENBRIDGE PIPEt[NES L.P., 345 SW3d 718 Tex. App. Beaumont 2011). An evidentiary stipulation such as this one is binding on both parties. U.S. V. ' ' BANKS, 624 F3d 261 (5TH CIR. 201 0) ·'· Clearly the record shows Respondent acted arbitarily and in an unreasonable manner "that is without consideration and in disregard of facts and circumstan- ces of the case," NAVISTAR, supra, at 6, when it disregarded the concession by the State, and Realtor's requests ~nd entitlementsto written findings of fact and conclusions of law, supported by Inmate's Declaration,and the record. As such, the Respondents failure or refusal to require the trial court to produc~,
and provide to Realtor, written findings, as well as give no written opinion on said dismissal as moot, is ,;~ithdub reference to any guiding rules and princip- les." IN RE BENAVIDES, 403 SW3d 370 (Tex. APP. SAN ANTONIO 2013). ISSUE 13: Respondent dismissed as moot a matter which is, apparent from the ±ecbrd, still a live controversy and needed by Realtor for appellate briefing. A claim is moot when the parties are no longer adverse parties with suffici- ent lebal interests to maintain the litigation. DEMOSS V. CRAIN, 636 F3d 145 (5TH CIR. 2011). Conversely, a case is not moot as long as a live controversy exists between atleast one plaintifr and one defendamt. RANGRA V. BROWN, 566 F3d 515 (5TH CIR. 2009). Herein, Real tor has san; 1ongoing and live controversy with the State in the R§spondent's for~m. Realtor can not possibily hope to effectively prosecute his claim(s) in the appellate court without the ministerial duty complained of being executed. Abatement of the appeal by Respondent would serve to promote justice, avoid further prejudice to Realtor, and promote judicial economy. (6/8) ' . ' ~
SUMMARY OF THE ARGUMENT The acts complained of were ministerial as imposed by the exclusive and mandatory provisions of the statutes, and binding precedent setforth by this Honorable Court. Respondent abused its discretion in acting clearly contary to well-settled law, whether that law is derived from statute, rule, or opinion of the Court. The duty to be performed was a "systemic requirement," MENDEZ V. STATE, 138 SW3d 334 (CCA 2004), and spelled-out with such certainty that nothi- ng was left to exercise discretion. Respondent's action was alcllear and preoudicial error of law where no adequate remedy ae law exists. These exigent circumstances; due to the importance of the issues raised, the limited time before the brief is due,.the further irreparable harm to Realtor~from the underlying ~rongful conviction, and certainty that the Respon- dent was in error; dictate that a stay of all appellate proceedings be required. PRAYER FOR eE[[EF Wherefore, premises considered, Realtor prays this Honorable Court will GRANT the Petition For Writ of Mandamus, directing Respondent to: 1. Ensure the Realtor is provideR a complete copy of the Clerk's Record; 2. Ensure the tri~l court produce and provide written findings of fact and conclusions of law on the motion to supress the statement to the Realtor, or hold a new hearing on the motion to supress the statement and reduce to writing its findings; and 3. STAY the appellate proceedings until the above-noted actions are taken Respondent, wherein the appellate time-table will restart anew. Respectfully Submitted,
Randall Bolivar, Pro Se Realtor Ellis Unit, TDCJ # 1719379 1697 FM 980 I:Huii'EsViiJ.iJ.§, Texas 77343
NOTICE OF PRO SE LITIGANTS Courts construe pleadings filed by pro se litigants under a less stringent standard then those drafted by attorneys; thus, pro se pleadings are entitled to a liberal construction that includes all reasonable inferences that can be drawn from them. JOHNSON V. QUARTERMAN, 595 F. Supp. 2d 735 (S.D. Tex. 2009'). Pro se pleadings must be treated liberally as seeking proper remedy. U.S. V. ROBINSON, 78F~3d 172 (5TH CIR. 1996). (7/8) ' '. CERTIFICATE OF SERVICE
I, Maria S. Rey, certify that a true and correct copy of the above and fore-
qoing documents were served on opposing counsel for the State at: Cameron County District Attorney's Office Chief Staff Attorney 964 E. Harrison St. 901 Leopard St., 1DTRl.Rilir. Corpus Christi,Texas 78401 Brownsville, Texas 78520
Service upon counsel was made by fax, First Class Mail, or hand-delivery. SIGNED AND SERVED ON THISliDAY OF li!J \
STATE OF TEXAS § § COUNTY OF WALKER §
REALTOR'S AFFIDAVIT IN SUPPORT I, Randall Bolivar, being presently incarcerated within TDCJ-CID, O.B. Ellis Unit, located in Walker County, Texas, declare under penalty of perjury, with- out the United States, that the facts stat~d in the abbve and foregoing petiti- on for writ of mandamus are true,,correct and complete pursuant to Title 28 usc § 1746 (1). EXECUTED ON MAY 5, 2015. Randall Bolivar, Affiant
NOTICE TO INTERESTED PARTIES
All concerned and interested parties have ten (10) days to rebut this Affi- davit under penalty of perjury, and sworn oath by Notary Public, point-for- point,- and to transmit said rebuttal to Affiant USPS Cert. Mail with Return Receipt Requested, signed and dated by affiant within ten (10) days of receipt by party.
(8/8) STATE OF TEXAS § § COUNTY OF WALKER~§
REALTOR'S AFFIDAVIT OF CERTIFICATION OF DOCUMENTS I, Randall Bolivar, being presently incarcerated within TDCJ-CID, O.B. ELLIS UINT, located in Walker County, TExas, declare under penalty of perjury, with- out the UNITED STATES, that the;<~attached two documents sent fromtithe Thirteenth COurt of Appeals are the original copies sent to Realtor. Additionally, th=r facts stated herewith are true, correct and complete pursuant to Title 28 usc 1 746 -(1 ') •
EXECUTED ON May 5, 2015. Randall Bolivar, Affiant
NOTICE TO INTERESTED PARTIES All concerned and interested parties have ten day~~to rebut this Affidavit under penalty of perjury, and sworn oath by Notary Public, and transmit said rebuttal to Affiant Cert, MAil, RR~, signed by affiant and dated within ten days of reciept. CHIEF JUSTICE NUECES COUNTY COURTHOUSE 901 LEOPARD, 10TH FLOOR RCGELIO VALDEZ CORPUS CHRISTl, TEXAS 78401 JUSTICES 361-888-0416 (TEL) 361-888-0794 (FAX) NELDA V. RODRIGUEZ DORI CONTRERAS GARZA. HIDALGO COUNTY GINA M. BENAVIDES ADMINISTRATION BLDG. (:ourt of ~peals GREGORY T. PERKES 100 E. CANO, 5TH FLOOR NORA L. LONGORIA EDINBURG, TEXAS 78539 956-318-2405 (TEL) CLERK DORIAN E. RAMIREZ tEbirteentb mtsttict of tEexas 956-318-2403 (FAX)
www. txcourts. gov/13thcoa
April 29, 2015
Mr. Randall Bolivar #1719379 Hon. Luis V. Saenz Ellis Unit District Attorney 1697 FM 980 964 E. Harrison Huntsville, TX 77343 Brownsville, TX 78520-7123 *DELIVERED VIA E-MAIL* Hon. Rene B. Gonzalez Assistant District Attorney 964 E. Harrison Street, 4th Floor . Brownsville, TX 78520 * DELIVERED VIA E-MAIL *
Re: Cause No. 13-14-00157-CR Tr.Ct.No. 2009-CR-2869-A Style: Randall Bolivar v. The State of Texas
Pro· Se's third motion to abate the appeal - required written findings of fact and conclusions of law in the above cause was this day DISMISSED AS MOOT by this Court. '
Very truly yours, ~~$. ~~ Dorian E. Ramirez, Clerk
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NUECES COUNTY COURTHOUSE CHIEF JUSTICE 901 LEOPARD, 10TH FLOOR ~QGELIO VALDEZ CORPUS CHRISTl, TEXAS 78401 361-888-0416 (TEL) JUSTICES 361-888-0794 (FAX) NELDA V. RODRIGUEZ DORI CONTRERAS GARZA HIDALGO COUNTY GINA M. BENAVIDES ADMINISTRATION BLDG. GREGORY T. PERKES NORA L. LONGORIA QCourt of ~peal~ 100 E. CANO, 5TH FLOOR. EDINBURG, TEXAS 78539 956-318-2405 (TEL) CLERK DORIAN E. RAMIREZ Qi;birtttntb mt~ttitt of Qi;exa~ 956-318-2403 (FAX)
Mr. Randall Bolivar #1719379 Hon. Luis V. Saenz Ellis Unit District Attorney 1697 FM 980 964 E. Harrison Huntsville, TX 77343 Brownsville, TX 78520-7123 * DELIVERED VIA E-MAIL * Hon. Rene B. Gonzalez Assistant District Attorney 964 E. Harrison Street, 4th Floor Brownsville, TX 78520 * DELIVERED VIA E-MAIL *
Re: Cause No. 13-14-00157-CR Tr.Ct.No. 2009-CR-2869-A Style: Randall Bolivar v. The State of Texas
Pro Se's motion to abate appeal - supplementation of the clerk's record as ordered by the trial court in the above cause was this day DENIED by this Court.
Very truly yours, ~~·$. 7\~ Dorian E. Ramirez, Clerk
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