Davis, Willie Edward

• Court: Court of Appeals of Texas
• Decided: September 2, 2015
• Docket: WR-83,820-01
• Status: Published

Opinion

WR-83,820-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/2/2015 2:24:00 PM Accepted 9/2/2015 2:52:55 PM ABEL ACOSTA NO. _________________ CLERK

IN RE WILLIE EDWARD DAVIS, § RECEIVEDOF IN THE TEXAS COURT COURT OF CRIMINAL APPEALS § 9/2/2015 RELATOR § ABEL ACOSTA, CRIMINAL APPEALS CLERK

MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS AND PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

WILLIE EDWARD DAVIS, the Relator, files this Motion for Leave to File

Petition for Writ of Mandamus and this Petition for Writ of Mandamus against the

Honorable Kyle Hawthorne, Judge of the 85th Judicial District Court, Brazos County,

Texas, Respondent. Relator supports this petition as follows:

IDENTITY OF PARTIES AND COUNSEL

The following list is a complete list of the names and addresses of all parties

and the names and addresses of their counsel: Relator: Mr. Willie Edward Davis,

TDCJ # 1422283, Mark W. Michael Unit, 2664 FM 2054, Tennessee Colony, Texas

75886; Counsel for Relator: Michael C. Gross, 106 South Saint Mary’s Street, Suite

260, San Antonio, Texas 78205; Respondent: The Honorable Kyle Hawthorne, Judge

Presiding, 85th Judicial District Court, 300 East 26th Street, Suite 224, Bryan, Texas

77803; Jarvis Parsons, District Attorney, 300 East 26th Street, Bryan, Texas 77803.

STATEMENT OF THE CASE

The Relator filed an 11.07 application for a writ of habeas corpus in the

convicting court, 85th District Court, Brazos County, Texas on December 4, 2012 in Cause No. 06-01284-CRF-85-A. The district court signed an order designating issues

for resolution on January 9, 2013. See attached Exhibit A. More than 180 days has

elapsed since the date of receipt of the application by the State to resolve those issues

designated for resolution, and the district clerk has not forwarded the writ record to

this Court, and no extension of time has been requested from this Court.

STATEMENT OF JURISDICTION

This Court has jurisdiction in this proceeding pursuant to Article V, § 5, of the

Texas Constitution; Article 4.04 of the Texas Code of Criminal Procedure; and Rule

72 of the Texas Rules of Appellate Procedure.

ISSUE PRESENTED

Relator filed an application for a writ of habeas corpus in the 85th District

Court, Brazos County, Texas; more than 180 days have passed since the date of

receipt of the application by the State to resolve those issues designated for

resolution; and the writ record has yet to be forwarded to this Court. This Court

should order the district judge and district clerk to forward the writ record to this

Court.

STATEMENT OF FACTS

The Relator filed an 11.07 application for a writ of habeas corpus in the

convicting court, 85th District Court, Brazos County, Texas on December 4, 2012 in

Cause No. 06-01284-CRF-85-A. The district court signed an order designating issues

2 for resolution on January 9, 2013. See attached Exhibit A. More than 180 days has

elapsed since the date of receipt of the application by the State to resolve those issues

designated for resolution, and the district clerk has not forwarded the writ record to

this Court, and no extension of time has been requested from this Court.

ARGUMENT

If a trial court enters a timely order designating issues, it has 180 days from the

date of receipt of the application by the State to resolve those issues designated for

resolution, and on the 181st day from the date of receipt of the application by the

State, the district clerk shall forward the writ record to this Court unless the district

court has received an extension of time from this Court. See Tex. R. App. P.

73.4(b)(5). The Respondent’s failure to act after entering an order designating issues

for resolution is a failure to perform a ministerial function under the facts of this case

because the imposed deadline for factual issues to be resolved has long passed and

the case has yet to be forwarded to this Court. See McCree v. Hampton, 824 S.W.2d

578 (Tex. Crim. App. 1992); Tex. Code Crim. Proc. Art. 11.07; Tex. R. App. P.

73.4(b)(5). The trial court has no authority to continue to hold Relator’s writ record

and is under a ministerial duty to immediately forward the writ record to this Court.

The Relator has no adequate remedy at law to pursue the requested relief other

than this petition.

3 PRAYER

WHEREFORE, PREMISES CONSIDERED, the Relator respectfully prays that

the Court grant the Motion for Leave to File Petition for Writ of Mandamus, grant

this Petition for Writ of Mandamus, and issue a writ of mandamus directing the

Honorable Kyle Hawthorne, Judge Presiding, 85th Judicial District Court, Brazos

County, Texas, and district clerk, to forward the writ record to the Court of Criminal

Appeals for review.

Respectfully submitted,

/s/ Michael C. Gross Michael C. Gross State Bar No. 08534480 106 South St. Mary’s Street, Suite 260 San Antonio, Texas 78205 (210) 354-1919 (210) 354-1920 Fax

Attorney for the Relator, WILLIE EDWARD DAVIS

CERTIFICATION

I, Michael C. Gross, attorney for the Relator, have reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.

/s/ Michael C. Gross

4 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was mailed to the Honorable Kyle Hawthorne, Judge Presiding, 85th Judicial District Court, 300 East 26th Street, Suite 224, Bryan, Texas 77803; and Jarvis Parsons, District Attorney, 300 East 26th Street, Bryan, Texas 77803 on the 2nd day of September 2015.