Carballo, Leeroy Cesar

• Court: Court of Appeals of Texas
• Decided: June 25, 2015
• Docket: WR-83,506-01
• Status: Published

Opinion

June A'\ ., 2015

Leeroy Cesar Carballo TDCJ-CID # 1462910 Pack Unit 2400 ..wallace Pack Rd. Navasota, Texas 77868

Louise Pearson Clerk, Court df Criminal Appeals P.O. Box 12308 Capitol Station Austin~ Texas 78711

RE: Request to file "Original Application Fat Leave and For Writ of ·Mandamus"

Dear Clerk:

Please find "Relator's" (Original Application For Leave and

For Writ of Mandamus) to be filed in this Court and brough.t to

the Honorable Judges at tent ion as time allows you .to. do so. Also,

included is a S.A~S.E~ for your conveince with the request that

you please file-stamp this cover letter and mail baek to me. A

copy of this cover letter is also included. If the original of

this cover letter must be filed, then.please just file-stamp the

copy of it and return it to me.

Th~nk you ahead of time for your assistance in this matter!

REOEIV·. -.IN \OOUfit'~CMMNM. ~S JUN 2~ 2015 submitted. ~- EEROY CARBALLO Relator - pro se P.S. Also included~ please find and file the Relator's ''MOTION TO SUSPEND TRAP, RUL~ 9.3(b) AND FOR LEAVE TO FILE WRIT OF MANDAMUS ,. ··~ . Case No. Initial Writ No. 1097497-A/. Habeas Corpus

ln re LEEROY CESAR CARBALLO, § COURT OF CRIMINAL APPEALS TDCJ-CID #1462910, s ~ Relator, § § vs. § IN § CHRIS DANIEL, § Harris County District Clerk § AUSTIN, TEXAS

'.MOTION/TO·· SUSPENiiL TRAP .. :RULE :g. 3(b)· " ·;.AND FOR'LEAVK··T0 1 FILE. ' WRIT<' OF. MANDAMUS.

TO THE HON0RABLE ,JUDGES OF SAID COURT:· NOW COMES, LEEROY CESAR CARBALLO~ TDCJ~CID # 1462910, Relator, acting pro se, aud files this his own "Mot·ion to suspend TRAP, Rule 9.3(b)," copy requirement, "and for Leave to File Writ of Mandamus," and in so doing_, will show this·Most Honorable Court the following; to wit: I. TEXAS RULES 0F APPELLATE PROCEDURE, . RULE 9. 3 (b) Pursuant to TRAP Rule 9.3(b) copy requirement, "A party must file the.original and 11 copies of any document addr~ssed to e~ther

the Supreme Court or ·the Court of Criminal Appeals, except that only the original of the ·follo~ing must be filed i~. the Court of Criminal Appeals: (1) a motion for an extension· of time or a. response to the motion; or, (2) a pleading under Code of Criminal Procedure, Article 11.07." II. DIS.CUSSION Relator, because of.his incarceration and indigency is unable to file the required 11 copies and can·only provide one original to the Court and the carbon copies to the parties involved • . ( 1) ' Petitioner is a layman at· law~ unskilled as licensed attorneys.

and unable to acquire the required copies because of his incarcerat-

ion. Being such, Relator requests that this Court invoke ·TRAP Rule

2 to suspend Rule 9.3(b) and allow Relator to file one original of

his motion(s) and ~rit to the Court.·

III: PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, The Relator,·acting prose, PRAYS that this Most Honorable Court GRANT the Relator.' s request invoking TRAP, Rule #2 to suspend Rule' 9. 3'( b.), copy requirement, allow the Relator to file one original Writ of Mandamus to the Court while properly serving the parties with a carbon copy of'such.pleading. Relator also requests· ·that this Court . GRANT this motion for leave tha L must be accompanied with the Relator's writ of mandamus.

RESPECTFULLY SUBMITTED~

-UNSW0RN BECLARAT-10N- I·, LEER0Y:CESAR CARBALL0., (TDCJ-.GIB) '11462910, born on .11-30-.78, do as ser;t · that I' am ctirren tly incareer.a ted in·:· th.e Texas Department of Criminal Justice - Institutional Divi~ion'on the Pack Unit·- 2400 Wallace Pack Rd .. , in Navasota;. Texas (77868) in Grimes County, Texas, do declare· under the penal t·y of perjury ·t:ha t the above facts mentioned in .this motion are true and correct· to the best of my knowledge. Executed on this ~3

-CER,.JEIFTCATE OF.

.( 2) \\ Case No. Initial Writ No. 1097497-A

In re Leeroy Cesar Carballo, st\ COURT OF CRIMINAL APPEALS TDCJ-CID #1462910. ss Relator~' § IN § vs. § AUSTIN, TEXAS § Chris Daniel, § Harris County District Clerk §

RELATOR'S ORIGINAL APPLICATION FOR LEAVE AND FOR'WRITOF MANDAMUS

TO THE HONORABLE JUDGES OF SAID COURT: COMES NOW Leeroy Cesar. Carballo,· "Relator" pro se in the above- styled and numbered.cause and files this "Original Application for Leave and for Writ of Mandamus". and will show to wit: I. JURISDICTION· The Court of Criminal Appeals has exclusive jurisdiction to grant relief on. matters pertaining to a pending post-conviction habeas corpus application relating to a final conviction. See Padieu v. Court of Appeals of Texas, Fifth Dist., 392 S.W.3d 115~

117~118 (Tex.Crim.App. 2013); Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2014) II. RELATOR Leeroy Cesar Carballo, TDCJ~CID.# 01462910, is an offender incarcerated in the Texas Department ofCriminal Justice.- ID~ and is appearing prose~ who can be located at the Pack Unit.-2400 Wallace Pack Rd .. -, Navasota,. Texas 77 868. · Relator has. exhausted his remedies and has no other adequate remedy at law. The act sought to be compelled is min~sterial~ not discretionary -in nature.

(1) III. •.. RESPONDENT .

Chris Daniel, "Respondent" is the current Harris County

District Clerk

IV •. PROCEEH:JRAL. HISTORY

The "Respondent'' .ft led the "Relator.' s" initiaL pos·t conviction

application for. Wr.it of Habeas Corpus '·pursuant to Article 11.07 of

Texas code of Criminal.Procedure on September 28, 2011. See:

"EXHIBIT #1" attached. The "State"' then filed a "M(Ytion Requesting

Designation of Issues" on October 6, '2011. See: '''EXHIB•IT #2''

attached. o Pursuant to Article lL 07·, §3(d), "the. Courtf adop·ted. the

State's P·roposed' Order. Designating, Issues, ,See: "EXHIBIT #3" on

October 20~ 2011. (also attached)

On or about November 2nd, 2013, · the "Relator" mailed the

"Respondent" an amended/supplemented application forwrit of

habeas corpus . (Tex. Code Crim. Proc. , art. ·11. 07) , a ( 85 page)

memorandum of .law w/ (8) eight new exhibits attached. 1

Relator received his cer.tified return J;:,~ceipt. indicating·. that

mail address·ed to .the "Respondent'·' was received:· on November· 6, 2013

and was. signed. ··by.. an " Arthur·:Simpson ·~" See:· "EXHIBIT #4" On

March 5th·, 2014, 'June 6 and on. the 9thof.2014, the "Relator" mail-

the "Responden;t" letters

application with his mew. memorandum of law, .and: the . (8) e:Lgh t

exhibi.ts that he attached.· A request was made that the "Respondent"

assign the applic·ation a new' number if need

be forwarded to the trial court. The "Relator" was adamant in his

request to proceed with his new filings and·to have his eihibits

that were attached· to his initial filings included with the new filings.

See: · "EXHI·BTTS. # 5•7"··. attached.

1 Relat0r ch=s rot have th: ITEai\'3 to j±otcx::cpy th= herein nmt.i.am ckx:tna1ts :in this sutse:.tirn :in this pt::i::m. Relator cnly res his cartxnlfile apy. lbtaler, th= origjrels are en file wifu th= distcict clerk, ''Res}:xnjent's "office. (2) On June 26, 2014, "Respondent" filed the· "Relator's" [Motion To Amend Application of Writ of-Habeas Corpus" 2 and sent the Relator a file-s.tamped cover'letter concerning this filing. See: "EXHIBIT'# 8" On May 18 ~- 201'5, the "Relator" mailed' the "Respondent" a "Notice of intent to file. a writ o'f mandamus. in regards to application of writ of habeas corpus''"that was;mailed to his office. See: "EXHIBIT.# 9" (4 pgs. attached) V •. Violation_ of Tex,· ~ : Code "Grim.-·Proc. art. _ ll.07 __ -~3(b)_-

The "Relator'-'.c asserts that the "Respondent" had a ministerial duty to file the "Relator's" amended/supplemented -habeas application. Tex. Code Crim. Proc. art. .11.07 §3(b}; Aranda v •..., Di'st.Cferk,Gaines County,_ 207 S.W.3d 785(Tex.Crim.App,. 2006); Deleon v.. Dist. Clerk, Lynn County, 187 S.W.3d 473~ 474 (Tex. ,Crim •. App . 2006) Because the "'Relator" has no right to appeaL the "Responden.t' s" refusal to properly 'f i'le his "amended/supplemented" .·hab-eas application, new memorandum of law, with -(8) eight new exhibits, and have his exhibits that were attached to his prior application included with his new filings, "Relator" has no remedy at law. The "Relator" wrote the "Respondent"· multiple times request- ing that his new application and filings be assigned a. cause number, if needed,· and forwarded:to the trial court for consideration. The "Relator" indicated in his letters thBt· he did not wish for his filings to be construed as a s1:1bsequent writ: but as an application where he has stated all of the facts supporting his grourtds. In essence, 'the "Relator" requested that .his amended/supplemented writ of habeas ~orpus be filed whi.le .his tither writ concerning the same cause was/is pending bef:c;>re the Court. ·2aelator'·s un1f of as~1gnment does n6t allow inmate~ to photocopy tlrir ~ \\Urk •. 'lh= Relator is urnble to_~ a CCJP.r' of this rrotim rrent:i.cnrl that is ~ _tp 1:e in tre District Clerk's office, fil.Erl prqELly. (3) The "Relator" r.ecognized the deficiencies in his initial application and brief on file while working pro se and sought to correct his· mistakes pro se. The "Relator". relied on Trevino v. Thaler:,: a· Supreme Court case as grounds in support of allowing him to amend/supplement his application. The "Relator's" motion to amend/supplement was attached to ·his .cover.' letter. See cover letter: "Exhibit # 8" :. The· ''Relator" has received. no response i'ndm.c'a'.t:~ng :that his new filings were ever filed,. assigned a new. number, if needed, or that they=were ever forwarded··to the trial court or to this Honorable Court of Criminal Appeals. According to Benson :V·. ·!District Clerk,. Montgomery: County~

331 S.W.3d 431 (Tex. Crim. App. 2011): "Whether a habeas corpus applicant has other applications pending.is·irrelevant to the district cletk's ~uty to receive file~ and forward habeas corpus applicati6ns under:Article 11.07'' Id. at 432 VI. PRAYER FOR RELIEF ····'. WHE~EFORE: PREMISES CONSIDERED, Relator respectfully requests a finding that Respondent did ~ot fulfill his ministerial duty according to the Tex. Code Crim. Proc. art. 11.07 §3(b) and that Relator brought this litigation in good faith and has substantially prevailed. Relator prays fot an ORDER directing Respondent to file- stamp Relator's amended/supplemented habeas application with the memorandum of law and 8 (eight) exhibits that were attached with a date within November of 2013 and to attach with his new filings "exhibits (A, B: C: & D) that were attached t:o his filings on 9-28-11. Also~ . if the law so requires, that the "respondent" assign the "amended/supplemented" application a new number and forwarded to the trial court or to this Honorable Court along (4) tHth the "Relator's" motion to "amend·applicationof writ of

habeas corpus" that Relator asserts that he attached to his

cover letter that .was file-stamped by the_Bfstrict Clerk. See:

"EXHIBIT#8" attached.

Last~ that the ''Respondent" '.be'>ORDERED>to send'· ·the Relator

a copy of the docket sheet that indicates all .the· letters, documents,

pleadings that have been filed with their filing dates pertaining

to the Relator's proceedings=on his writ of habeas corpus under

the herein mentioned cause nu~ber.

Date: June ~~.-=---'2015

-UNSWORN: DECLARATION-

I, LEEROY' CESAR CARBALLO, .(TDCJ-CID) # 014629:10~ date· of 'birth

being on 11-30-1978, do assert that I'am. currently ... incarcerated

in the Texas Department o:£ Criminal Justice - InstitutionaL

Division on ·the Pack Unit - 2400.W~llace Pack Rd. in Navasota,

Texas ( 7 7 868) in Grimes Cotm ty, · Texas~ do .. d~cl:are under· the

penalty of perjury that the above facts, fil~ngs mentioned, and

exhibits are both true and .corree t to ·the best of. my knowledge.

Executed on this ) ~ day of June,

-CERTIFICATE·· 0F SERJZICE-

I, Leero,y Cesar Carballo.,#1462910 ~ 'further .. certify that I sent the o:riginal copy of this "Ap.plicatioil for Leave and· For Writ of Mandamus " by first:~elass· mail~. postage prepafd to: Louise Pearson. Clerk~ Court 0f CriminaL Appeals, P.O.Box 12308, Capitol Station, Austin. Tx~78711 and· a carbon copy, mailed .in likewise rrianner to: State ~rosecuting Attorney~. P~O. Bbx"12405i Austiri,, Tx. 78711 and to the Res.ponden t · : Chris DanieL, Harri::; County Dis 1trict Clerk~ P.O.Box 4651 Houston,. Tx.· 77210 Oil.;JUN" ¢~ ~"~5 L C4£ ( 5) L ~SAR CARBALLO . "EXHIBIT # 1" CHRIS DANIEL HARRIS COUNTY DISTRICT CLERK

September 28, 2011

LEEROY CESAR CARBALLO #01462910- WAYNE SCOTT UNIT 6999 RETRIEVE RD . . ANGLETON,TEXAS 77515

RE: CAUSE #1097497-A 1"'9th District Court

Dear Applicant:

Your post conviction application for Writ of Habeas Corpus was received and filed on 9-28-11. Article J 1. 07 of the Texas code of Criminal Procedure affords the State 15 days in which to answer the application after J:aving been served with said application. After the 15 days allowed the State to answer the application, the Court has 20 days in which it may order the designation of issues to be resolved, if any. If the Court has not entered an order designating issues to be resolved within 35 days after the State having been served with the application, the application will be ·forwarded to the Court of Criminal Appeals for their consideration purstiimt to Article 11.07, Sec. 3(c)ofthe Texas Code of Criminal Procedure.

The records of the office reflect the following:

CAUSE NO. PETITION FOR WRIT OF HABEAS CORPUS DISPOSITION

All future correspondence shoul_d indicate the above listed cause number. ... " '

.' • ; # •• •· •

• '! ... , : l ·' .•' -.,_I

Lou.Jefferson, Deputy Criminal Post Trial

CC: District Attorney Judge, Presiding Court

1201 FRANKLIN • P.O. Box 4651 • HOUSTON, TEXAS 77210-4651 • (888) 545-5577

PAGE I OF I REv. 01-02-04 "EXHIBIT # 2"

NO. 1097497-A

EX PARTE § IN THE 179th DISTRICT COURT

§ OF LEEROY CESAR CARBALLO, Applicant §. HARRIS COUNTY, TEXAS

THE STATE'S MOTION REQUESTING DESIGNATION OF ISSUES

The State of Texas, by and through its Assistant District Attorney for Harris County,

requests that this Court, pursuant to TEX. Co bE CRIM. PROC. art. 11.07, §3(d), designate the

following issues which need to be resolved:

1. Whether the applicant received effective assistance of counsel at trial.

2. Whether the applicant received effective assistance of counsel on appeal.

Service has been accomplished by mailing ·a true and correct copy of the foregoing

instrument to the following address:

Leeroy Cesar Carballo #1462910- Wayne Scott Unit 6999 Retrieve Rd. Angleton, TX 77515

SIGNED October 6, 2011. Re~tf~llf.binitte ,

~Keating Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-6657, (713} 755-5809 (fax) Texas Bar I.D. #00787813

j ~ ... · i .

"EXHIBIT # 3"

NO. 1097497-A ......... ... . · EXPARTE § IN THE I 79th DISTRICT COURT -· § OF LEEROY CESAR CARBALLO, Applicant § HARRIS COUNTY, TEXAS

THE STATE'S PROPOSED ORDER DESIGNATING ISSUES

. Having reviewed the applicant's application for writ of habeas corpus, the Court finds

that the following issues need to be resolved in the instant proceeding:

1. Whether the applicant received effective assistance of counsel at trial.

2. Whether the applicant received effective assistance of counsel on appeal.

Therefore, pursuant to Article 11.07, §3(d), this Court will resolve the above-cited issues

and then enter findings of fact.

The Clerk of the Court is ORDERED NOT to transmit at this time any documents in the

above-styled case to the Court of Criminal Appeals until further order by this Court.

By the following signature, . ·

the Court adopts the State's Proposed Order Designating Issues.

SIGNEDonthe_. _day£~ PRESIDING JUDGE

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MARCH 5TH, 2014 LEEROY CESAR CARBALLO 01462910 pack unit 2~00 WALLACE PACK RD. RE: CAUSE #1097497-A NAVASOTA, TEXAS 77868 CHRIS DANIEL HARRIS COUNTY DISTRICT CLERK P.O. BOX 4651 HOUSTON, TX. 77210-4651 DEAP. CLERK: ON OR ABOUT NOVEMBER 2ND; 2013, I MAILED YOU MY APPLICATION FOR A WRIT OF HABEAS CORPUS IN ACCORDANCE WITH ARTICLE 11.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE; A MEMORANDUM OF LAW IN SUPPORT OF, AND EIGHT EXHIBITS (ATTACHMENTS) TO BE INCLUDED IN. I RECEIVED MY CERTIFIED RETURN RECEIPT INDICATING THAT MY MAIL WAS RECEIV~D ON NOV - 6, 2013 BY A "ARTHUR SIMPSON". PLEASE ASSIGN MY APPLICATION A CAUSE NUMBER IF NEED BE AND FORWARD IT TO THE TRIAL COURT FOR CONSIDERATION. I DO NOT WISH FOR THE COURT TO CONSTRUE THIS APPLICATION AS A SUBSEQUENT WRIT,

- BUT AS A GOMPLIANT APPLICATION WHERE I HAVE STATED ALL OF MY GROUNDS SUPPORTING MY CLAIMS THAT I WISH THE COURT TO CONSIDER. I WISH TO PTIOCEED WI1H THE NEW HABEAS APPLICATION, MEMORANDUM OF LAW, AND EIGHT EXHIBITS (ATTACHMENTS) tHAT WEFE RECEIVED BY YOUR DEPARTMENT ON NOV -6, 2013, AND HAVE INCLUDED "EXHIBITS A,B, C, & D" THAT WERE ATTACHED TO MY FILINGS ON 9-28-11. I STRONGLY BELIEVE THAT I HAVE NOW RAISED A COLORABLE CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPEAL COUNSEL IN MY NEW HABEAS APPLICATION AND MEMORANDUM OF LAW. DBCLABATSgs. I, LEEROY CESAR CARBALLO, 15e -eiD #1462910,Applioant,pro-ae• do d8olare under penalties of perjury that the 11.07 APPLICATION, w/ memorandum of law, and eight exhibits (attached), that were re- ceived by certified mail by your department are true and correct to the best of my knowledge and that I pray for relief and believe that I'am ·entitled to REDR&SS. ~-~- EXECUTED ON THIS THE ,.':). ~--\ .. DAY OF '\' ~- _ .. _ . __ ,@014 • • --- R~~PEcfFOCLY SUBMITTED, ,r Q (' (' ,{)._00 ... ~-~tt~ *lpplicant- pro-se * "EXHIBIT # 6"

JUNE 6, 2)b 14 LEEROY CESAR CARBALLO II 01462910 Pack Unit 2400 WALLACE PACK RD. NAVASOTA, TX. 77868

CHRIS DANIEL HARRIS COUNTY DISTRICT CLERK P.O. BOX 4651 HOUSTON,TX 77210

RE: WRIT # 1097497-A MR. DANIEL: ON 11-2-2013, I MAILED YOU MY AMENDED APPLICATION (writ of habeas corpus]T.C.C.P. art.11.07]) form, my memorandum of law in support of, & ~ight exhibits (attached). I received ;: my certified return receipt indicating that my ma~l was received on 11-6-2013 by an "ARTHUR SIMPSON". I'M REQUESTING AGAIN, THAT MY "AMENDED'' APPLICATION BE ASSIGN- ED A CAUSE NUMBER IF NEED BE AND FORWARD IT TO THE 179TH DISTRICT '·. '' COURT FOR CONSIDERATION. IT IS NOT A SUBSEQUENT WRIT, BUT AN "AMENDED'', COMPLIANT APPLICATION THAT STATE ALL OF THE GROUNDS·! WISH THE COURT TO CONSIDER. I WISH TO PROCEED WITH THE "AMENDED" APPLICATION, "RECONSTRUCtED" MEMORANDUM OF LAW, 8 EXHIBITS (ATTACHED), THAT WERE RECEIVED ON 11-6, 2013, AND HAVE "EXHIBITS-A,B,C, & D" THAT WERE ATTACHED TO MY PLEADINGS FILED ON 9-28-11.

DECLARATION I, LEEROY CESAR CARBALLO, 1462910, APPLICANT-pro se, DO DECLARE UNDER PENALTIES OF PERJURY THAT MY "AMENDED" 11.07 APPLICATION,"RE- CONSTRUCTED" MEMORANDUM OF LAW, & 8 EXHIBITS (ATTACHED) THAT WERE RECEIVED BY CERTIFIED MAIL BY YOUR DEPARTMENT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND THAT I PRAY FOR RELIEF AND BELIEVE THAT I'M ENTITLED TO REDRESS. EXECUTED ON THis9jh .. DAY OF Jupe_, ,20!.:L_. RESPECTFULLY SUBMITTED, ~b C'o.n~MIO · LEEROY CESARBI&BBALLO 1/1462910 CCI FILED Applicant - pro se "EXHIBIT # 7"

JUNE 9, 2014 LEEROY CESAR CARBALLO fl 01462910 PACK UNIT 2400 WALLACE PACK RD. NAVASOTA, TX. 77868 CHRIS DANIEL HARRIS COUNTY DISTRICT CLERK P.O. BOX 4651 HOUSTON, TX.77210 RE:* UPDATING MY NEW ADDRESS * REQUESTONG A DOCKET SHEET OR TO KNOW THE STATUS OF MY WRIT (11.07) MR. DANIEL: ' I WROTE TO YOU ON 3-5-2014 FROM THE ABOVE ADDRESS AND HAVE NOT HEARD FROM YOU. I'M WRITING AGAIN TO INFORM YOU THAT THIS ABOVE ADDRESS IS MY NEW ADDRESS. PLEASE UPDATE THIS ADDRESS AS CURRENT FOR THE COURT'S RECORD. IN ADDITION; I'M REQUESTING A COPY OF MY DOCKET SHEET PERTAIN- ING TO MY WRIT OR TO BE INFORMED OF THE STATUS OF MY WRIT. HAS MY "AMENDED" APPLICATION THAT WAS RECEIVED BY YOUR DEPARTMENT ON 11-6-2013 ASSIGNED A NEW WRIT NUMBER. MY ORIGINAL APPLICATION HAS BEEN PENDING FOR OVER 2! YEARS NOW IN THE 179TH DISTRICT COURT. PLEASE RESPOND WITH ANY INFORMATION CONCERNING THIS MATTER. RESPECTFULLY SUBMITTED,

~.Cmm CJJ1b ~ I~ LEEROY CESAR CARBALLO 111462910 APPLICANT - pro se CC/FILED "EXHIBIT # 8"

JJN~ 23, 2014

LEEROY C~~AR CARBALLO TDCJ-CID #01462910 PACK UNIT 2400 WALLACE PACK RD. NAVASOTA, TX. 7786~

CHRIS DANIEL HARRIS COUNTY DISTRICT CLERK P.O. BOX i-1651 HOUSTON, TX. 7'7210

RE: *REQUESTING ENCLOSED MOTION TO BE FILED AND FORWARDED TO T~E PRESIDING JUDGE 0? THE 179TH DISTRICT COURT. !"'-- DEAR MR. DANIEL: El'JCCOSED, PLEASE FIND A "MOTION TO AMEND APPLICATION OF WRIT OF HABEAS CO~PUS FILED UNDER TX. CODE CRIM. PROC. ART.11.07''· I'm requesting that you please file this motion and forward a copy to the presiding Judge of the 179th District Court in Harris County. Also, please find enclosed a S.A.S.E. for your conveneice

and file stamp a copy of this letter that I'm sending you and return

to me. I thank you for your help in this matter!!!!!

RESPECTfULLY SUBMITTED, "EXHIBIT # 9"

May 18, 2015

Leeroy Cesar Carballo TDC)-CID # 01462910 Pack Unit 2400 Wallace Pack Rd. Navasota, Tx.77868

Chris Daniel Harris County District Clerk P.O. Box 4651 Houston, Tx. 77210-4651

RE: Notice of intent to file a writ of mandamus in regards to application of writ of habeas corpus mailed to your aqdress.

Dear Clerk: This letter is being sent as a notice of intent to file an

application for a writ of mandamus with th~ Texas Court of Criminal

Appeals.

"The Court of Criminal Appeals has exclusive jurisdiction to grant relief on matters pertaining to a pending post- conviction habeas corpus application relating to a final conviction." See Padieu v. Court of Appeals of Texas .. Fifth Dist .. 392 S.W.3d 115. 117-118 (Tex.Crim.Ap6. 2013); Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2014 · The "Relator" was convicted of aggravated robbery and sentenced

to forty years imprisonment in the 179th District Court from Harris County in cause no. 1097497. The Relator's initial post

conviction application for Writ of Habeas Corpus was received and filed on 9-28-11 and assigned number 1097497-A. On or about November 2nd, 2013, the Relator mailed your office

an amended/supplemented writ of habeas corpus , memorandum of law,

(8) eight new exhibits [attached]. Relator received his certified

return receipt indicating that mail addressed to you from the Relator was received on November 6. 2013 and signed by an

" Arthur Simpson". (1) The Relator has written you multiple times requesting that his new application and filings be assigned a cause number if need be and foward it to the trial court for consideration. The Relator

has indicated in his letters that he does riot wish for the Court

to construe this application as a subsequent writ, but as a compliant application where he has stated all of his grounds

supporting his claims that he wishes the Court to consider.

The Relator has stated in his letteres addressed to you that he wishes to proceed with the new habeas application, memorandum

of law, and eight exhibits (attached), and requested to have included "exhibits [A, B, C, & D) that were attached to his filings on 9-28-

11. The Relator submitted his "declaration" with his letters to

you attesting/swearing/declaring under the penalty of perjury that these new pleadings filed are true and correct to the best of the

Relator's knowledge.

In essence, the Relator requested that you file his new writ

of habeas corpus while his other habeas corpus application concern-

ing the same cause is pending in this Court. The Relator recognized

the deficiencies in his initial application and brief on file and sought to correct his mistakes while filing pro se.

The Relator has received no response indicating that these new

filings were ever filed, assigned a new cause number if necessary, that they were forwarded to the trial court or to the Texas Court

of Criminal Appeals. According to Benson v. District Clerk. Montgomery County,

331 S.W.3d 431 (Tex.Crim.App. 2011):

"Whether a habeas corpus applicant has other applications pending is irrelevant to the district clerk's duty to receive, file, and foward habeas corpus applications under Article 11.07" Id. at 432 (2) Relator asserts this duty exists under Tex. Code Grim. Proc. art. 11.07. §3(b). If these filings are not to be assigned a new

case number because of some operating pr6cedures in your department, then these filings should have still been brought to the Court's

attention for a response or forwarded to the Court of Criminal

Appeals. The Court of Criminal Appeals will grant relief when a relator

shows: "(1) that the act;~ought to be compelled is purely ministerial and (2) that there is no adequate remedy at law." Winters v. Presidin Jud e of the Grim. Dist. No. Three, 118 S.W.3d 773, 775 Tex.Crim. App. 2003 In Relator's case, the Harris County District Clerk has a ministerial duty to file Relator's habeas application. Tex. Code Grim. Proc. art. 11.07, § 3(b); Aranda v. Dist.Clerk, Gaines County,

207 S.W.3d 785 (Tex.Crim.App. 2006); Deleon v. Dist. Clerk,Lynn County.

187 S.W.3d 473.474 (Tex.Crim.App. 2006) Because Relator has no

right to appeal the District Clerk's refusal to file his habeas

application. Relator has no r~medy at law. The Relator will file his mandamus with the Court of Criminal Appeals in (21) twenty-one days if the Relator receives no response

concerning these issues that are being brought to your attention.

Respectfully submitted.

d:··~ C~ ~Jl eeroyesar Cara() Relator - pro se

DECLARATION

I, Leeroy Cesar Carballo, TDCJ-CID #1462910, my date of birth

is on November 30, 1978, presently incarcerated at the Wallace Pack Unit (TDCJ-CID), in Navasota. Texas 77868, in Grimes County, do (3) declare under the penalty of perjury that the foregoing facts are true and correct to the best of my knowledge.

Executed on I

pro se

CERTIFICATE OF SERVICE

I, Leeroy Cesar Carballo, TDCJ-CID #1462910, do swear under the penalty of perjury that I have deposited the foregoing "Notice of Intent'' (the original copy) in the U.S. mail. postage pre-paid.

first class and mailed to : Chris Daniel Harris County District Clerk P.O.Box 4651 Houston. Texas 77210-4651

The same "Notice of Intent" (a copy) was mailed in the same

manner to:

Harris County District Attorney Mrs. Anderson Criminal Justice Center 1201 Franklin St. Ste 600 Houston. Texas 77002-1930

( ~lnd)

Kristin M. Guiney, Crim. Div. Criminal Justice Center 1201 Franklin St. 18th Fl. Houston., Texas 77002 (179th District Judge Presiding) on this {f}d day of :Jll,~.~ . 20 15

(4)