Eppelsheimer, Thomas Joseph

• Court: Court of Appeals of Texas
• Decided: August 17, 2015
• Docket: WR-83,743-01
• Status: Published

Opinion

Thomas Joseph Eppelsheimer TDCJ No. 01832429; ·Mark W. Michael Unit ' 2664 FM 2054, Tennessee ~olony, T~xas 75886-5000

\ August 10, 2015 \ Court Clerk . Court of Criminal Appeals of Texas Post Office Box 12308 Austin, Texas 78711-2308

RE:. Application for a Writ of Mandamus From Dallas County

Criminal District Court No. 6, Dallas County Trial Court Nos. F11-71319-X(A), F11-71623~X(A)~ Fll-71624-X(A), Fll-71625-X(A) Dear Hon. Clerk:

Enclosed for filing with.the Court of Criminal Appeals of Texas is an Application for a Writ of Mandamus From Dallas County. Please file said document and bring it to the attention of the Court.

Thank you for your assistance in this matter.

~EC~ijVlED ~~ . THOMAS OSEPH EPPELSHEIMER

C('· File A~®~ A~o~~@l, C~®vk

Hon~ Jeanine- Howard Criminal District Court No. 6 133 N. Industrial Blvd. Dallas, Texas 75207-4313 NO.

TRIAL COURT NOS. F11-71319-X{A), F11-71623-X(A), F11-71624-X(A) & F11-71625-X(A)

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

THOMAS JOSEPH EPPELSHEIMER, Relator

v.

HON. JEANINE,HOWARD, JUDGE, CRIMINAL DISTRICT COURT NO. 6, Respondent ·

APPLICATION FOR AWRIT OF MANDAMtJS ·FRQM DALLAS COUNTY

TO THE~HONORABLE COURT OF CRIMINAL APPEALS: NOW COMES, THOMAS JOSEPH EPPELSHEIMER; Relator in the above- styled and numbered cause of actiori, and files his .Application For A Writ Of Mandamus, pursuant to the. original' jurisdiction of this Court: In support of.this application Relator submits the following: RELATOR Relator has exhausted his remedies and has no other adequate remedy at law. The act sought to be compelled is ministerial and not dis- cretionary in nature. Article 1.051(d)(3) of the Texas Code of Criminal Procedure states in pertinent part: "An eligible· indigent defendant is entitled to have the trial court appoint an attorney 1 to represent him in ... a.habeas corpus proceeding if the court

concludes that the interests of justice require representation.''

TEX. CODE CRIM. PROC. art. 1.051(d)(3). On July 9, 2015, Relator filed his motion for appointment of

counsel ~ith=the·~rial court in which Respondent presides. See

EXHIBIT 1. Relator attached his. affidavi.t of indigency to his motion in order to provide proof that he is in dig en t. See Id. In.

his motion, Relator showed the trial court that the interests of

justice require representatiorr because: (1) Relator will be sub-

mitting several grounds of ineffective assistance of trial counsel

in his applicatio~ for a writ of habeas corpus and it will be the

itiitial-review of s~id grounds; (2) Relator desires to conduct

discovery, but is unable to do. so without an attorney; and (3)

Relata~ requests an evidentiary hearing in order .to develop the

facts and to p~ovide the proof to support his claims. See Id.

Respondent has failed to appoint an attorney to represent

Relator in his post-conviction habeas proceeding and more than 30

days have passed. There is no st~tute requiring Respondent to rule

on Relator's motion within a specified tim~-frame.

Relator has not submitted his application for· ~ writ of hab-

eas corpus under Code of Criminal Procedure, Article 11.07 because

he cannot determine the grounds to be raised without first con-

ducting discovery.

RESPONDENT Respondent, Honorable jeanine Howard, in her official capa-

city as Judge of the Criminal District Court No. 6 of Dallas Coun-

ty, Texas, has a duty to d~eide~wheEher~Relator is an eligible

2 indigent defendant and to appoint an·attorney, or deny the motion. Respondent is in violation of her duties as Judge by refusing

to rule on Relator's motion, is acting in.bad faith, and has fail~

ed to afford Relator the· professional and common courtesy of any

response to his requests.

PRAYER WHEREFOREi PREMISES CONSIDERED, Relator .respecfully:reque~ts

a finding that: (l)·he is indigent; (2) that the interests of

justice ·r-equire representation; and (3) ·that Respondent has not

appointed an attorney to represent Relator or denied his motion.

Relator prays that an order direeting Respondent to appoint an

attprney to represent and assist Relator in the habeas proceeding

be issued or Respondent be diiected to make a ruling on Relator's

motion. Relator further prays for any other relief the Caurt deems

him justly entitled.

THOMA JOSEPH EPPELSHEIMER RELATOR/APPLICANT TDCJ No. 01832429 Mark W. Micha~l Unit 2664 FM 2054 Tennessee Colony, Texas 75886

CERTIFICATE OF SERVICE I hereby. certify that ~ true and correct copy of the fore- going application has been served by placing same in the United States Mail, postage prepaid, on this 10th day of Augu3t, 2015, addressed to Honorable Jeanine Howard, Criminal District Court No. 6, 133 N. Industrial Blvd., Dallas, Texas 75207-4313. c:::::;1:~ , - ~ ' . Z---~ -e-.--- THOMA. JOSEPH EPPELSHEIMER RELATOR/APPLICANT

3 EXHIBIT 1

NOS. F11-71319-X(A)~ F11-71623-X(A), F11-71624-X(A) & F11-71625-X(A) EX PARTE § IN THE CRIMINAL DISTRICT § § COURT NO. 6 OF § THOMAS JOSEPH EPPELSHEIMER § DALLAS COUNTY, TEXAS

APPLICANT'S MOTION FOR APPOINTMENT OF COUNSEL

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Thomas Joseph Eppelsheimer, . Applicant in th~~ above .r-

styled and numbered c~use, and requests appointment of counsel to

represent and assist him in filing an application for a writ of

habeas corpus under Article 11.07 of the Texas Code of Criminal

Procedure and in the post-conviction habeas proceeding. In support

of this motion Applicant submits to the Court the following:

JURISDICTION Applicant seeks ~ppointment of counsel in this Court pursuant

to Texas Code of Criminal Procedure Articles 1.051(d)(3) and 11.07,

which provide the Court with limited jurisdiction over Applicant

and the subject matter as:Applicant was convicted within this Court

in cause numbers F11-71319-X, F11-71623-X, F11-71624-X & F11~71625-X.

AUTHORITY An eligible indigent defendant is entitled to have the trial

cou~t appoint an attorney to represent him in ... a habeas corpus

proceeding if the court concludes that the interests of justice

require representation. TEX. CODE CRIM. PROC. art. 1.051(d)(3).

INDIGENCY: Applicant is currently incarcerated in the Mark W. Michael

Unit of the Texas Department of Criminal Justice - Correctional 1 Institutions Division· in Tennessee Colony, Texas, pursuant to con-

victions and sentences in this Court. Applicant is penniless,

destitute and an indigent person, who is not financially able to

employ counsel to represent him in this post-conviction habeas

proceeding. An affidavit of indigency is attached and incorporated

hereto as "EXHIBIT 1."

IN THE INTERESTS OF JUSTICE

A. Ineffective Assistance of Trial Counsel

Applicant intends to raise several.grounds related to the

ineffective assistance of his trial counsel in his applications

for a writ of habeas corpus.

The [Supreme] Court explained that, because initi~l­ review in a collateral proceeding of a prisoner's in- effective assistance of trial counsel claim is in many ways the equivalent of his direct appeal as to that claim, if the state does not appoint an attorney to assist the indi~ent~prisoner, he is denied fair pro- cess ... similar to instances in which no attorney is appointed to pursue the direct appeal or in which the appointed attorney was ineffective.

Martinez v. Ryan, 132 S.Ct. 1309 (2012); see also Trevino v. Thaler,

569 U.S. 1611 (2013) (the recognized exception in Martinez applies

to Texas because of State's procedural framework).

ay deliberately choosing to move trial-ineffectiveness claims outside of the direct appeal process, where coun- sel is constitutionally guaranteed, the State signifi- cantly diminishes prisoners' ability to file such claims.

Martinez, 132 S.Ct. at 1318.

B. Discovery Ineffective-assistance claims often depend on evidence out-

side the trial record. Id. Applicant requests discovery in this

post conviction habeas proceeding. The appointment of counsel is

necessary for fair and effective discovery.

2 The courtroom is the crucible of the law, where the fire of litigation tests the intellectual and political forces that inform social policy. Discover - the process by which litigants identify and assemble their evidence - provides the fuel for the fire.

James Gibson, A topic Both Timely and Timeless, 10 RICH. J.L. & TECH. 49 (2004).

The primary sources of law authorizing discovery in habeas

proceedings are: (1) the due process clause of Amendment XIV to

the United States Constitution; (2) the Freedom of Information

Act, 5 U.S.C. § 552; (3) Texas Code of Criminal Procedure, Chap-

ter 39; and (4) the Texas Public Information Act, Texas Govern-

ment Code, Chapter 552. However, Applicant is unable to access

these sources without an attorney.

"The TEXAS PUBLIC INFORMATION ACT does not require a govern-

mental body [i.e. a.district clerk~.a· district or county attorney,

a law enforcement agency, Child Protective Services, a medical

examiner's office, or Texas Department of Public Safety etc.] to

comply with a request for information from:

* an individual who is imprisoned or confined in a correctional facility; or.

*an agent of that individual, other than the individual's attorney--when the attorney is seeking informatinn that is subject to disclosure under Chapter 552 of the TEXAS GOVERNMENT CODE."

See TEX. GOV'T CODE § 552.028(a) of the ACT.

The Texas Public Information Act severely hampers Appli-

cant's ability to discover information and evidence that is ex-

culpatory, material, admissible, in the possession of the State

and other governmental bodies, and unknown to Applicant. There-

fore, appointment of counsel is necessary for fair and effective

3 discovery.

C. Evidentiary Hearing

Applicant asserts that an evidentiary hearing will be neces-

sary in order to permit him to develop the facts and to provide

the proof to· support his claim.

Regarding the Confrontation Clause, the Supreme Court of the

United States wrote:

"To be sure, the [Confrontation] Clause's ultimate goal is to ensure reliability of evidence, but it is a pro- cedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the cru- cible of cross-examination ... Dispensing with confronta- tion because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is ob- viously guilty. This is not what the Sixth Amendment prescribes."

Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2536 (2009) (cit-

ing Crawford v. Washington, 124 S. Ct. 1354 ( 2004).

While Applicant is not claiming a right to confront his for-

mer trial attorney the same as if an evidentiary hearing were a

trial setting, he asserts that the only way the Court can properly

resolve the questions of whether Applicant was denied the effect-

ive assistance of trial counsel would be to schedule a live evi-

dentiary hearing, at which time Applicant would be able to both

introduce testimony supporting his claims, and test the reliabil-

ity of the statements made by his trial counsel in the "crucible"

of the courtroom.

Counsel must be appointed if an evidentiary hearing is order-

ed and the applicant is indigent and desires counsel. See Ex parte

Evans, 964 S.W.2d 643, 648 (Tex.Crim.App. 1998); TEX. CODE CRIM.

PROC. art. 11.07'~§ 3(d) ("that the interests of justice require 4 representation of a defendant in a criminal proceeding"); TEX.

CODE CRIM. PROC. art. 26.05(f) (appointed counsel shall be paid from the general fund of the county in which the evidentiary hear-

ing is held).

CONCLUSION In sum, Applicant is an eligible indigent defendant who is

entitled to have an attorney appointed to represent and assist

him "in the interests of justice. 11 Appointment of counsel is

necessary in order to afford Applicant a reasonably adequate op-

portunity to present his claimed violations of constitutional

rights to the Court.

PRAYER WHEREFORE, PREMISES,CONSIDERED, Applicant, Thomas Joseph

Eppelsheimer, prays that the Honorable Court concludes that he is

indigent and that the interests of justice require representation

in the habeas proceeding. Applicant prays that an attorney will

be appointed to represent and assist him in filing an application

for a writ of habeas corpus and any other habeas proceeding.

Dated: July 9, 2015.

THOMAS bSEPH EPPELSHEIMER APPLICANT TDCJ No. 01832429 Mark W. Michael Unit 2664 FM 2054 Tennessee Colony, Texas 75886

5 EXHIBIT 1

NOS. F11-71319-X(A), F11-71623-X(A), F11-7162~-X(A) & F11-71625-X(A)

EX PARTE § IN THE CRIMINAL DISTRICT § § COURT NO. 6 OF - § THOMAS JOSEPH EPPELSHEIMER § DALLAS COUNTY, TEXAS

APPLICANT'S AFFIDAVIT OF INDIGENCY

Thomas Joseph Eppe~sheimer, Applicant in this cause, state

the following under penalty of perjury:

My name is Thomas Joseph Eppelsheimer. I am prisoner number /

01832429. I am over 21 years of age, of sound mind, capable of

making this affidavit and personally acquainted with the facts

herein stated.

(1) I am presently incarcerated in the Mark W. Michael Unit of the Texas Department of Criminal Justice where I am not pe~mitted to earn or handle money;

(2) I have no source of income; ( 3) I currently have $ 2~-2- creditted to me in my Inmate Trust Fund Account;

(4) I neither own nor ha~e an interest in any realty, stocks, bonds, or bank accounts and I receive no interest or div- idend income from any source; and

(5) I owe ~'loo~~ in court costs and fines.

INMATE'S DECLARATION I, Thomas Joseph Eppelsheimer, TDCJ No. 01832429, being pre-

sently incarcerated in the Mark W. Michael Unit of the TDCJ in

Anderson County, Texas, verify and declare under penalty of per-

jury that the foregoing :statements are true and correct.

EXECUTED on this the 9th day of July,~~~

THOMAS JOSE H EPPELSHEIMER AFFIANT/APPLICANT