ACCEPTED 12-15-00273-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 11/25/2015 5:52:53 PM Pam Estes CLERK
David Mark Davis II 11 Glenview Ct Lufkin, Texas 75901 FILED IN (936) 238-8507 12th COURT OF APPEALS dmarkdavis2@gmail.com TYLER, TEXAS 11/25/2015 5:52:53 PM November 25, 2015 PAM ESTES Twelfth Court of Appeals Clerk Clerk of Court 1517 West Front Street Suite 354 Tyler, Texas 75702
Subject: Ex. Parte David Mark Davis II 12-15-00273-CR
Dear Ms. Estes:
On November 12, 2015, your office notified me of a jurisdictional deficiency concerning my notice of appeal in the above referenced case. On November 12, 2015, I submitted an amended notice of appeal. Furthermore, on November 12, 2015 I also sent the trial court a request to complete the standard form regarding the certification of my right to appeal the denial of my habeas petition.
On November 17, 2015, you notified me that the certification of my right to appeal was still not on file. A copy of this notice was sent to the trial court,
Please see attached a copy of a follow up letter that was sent to the trial court today regarding this missing document.
Respectfully,
David Mark Davis II Appellant, Pro Se CERTIFICATE OF SERVICE
I certify that at the time of filing, a copy of the foregoing Letter was served on The State of Texas through counsel of record, Mr. James Yakovsky, by email to jyakovsky@angelinacounty.net.
_________________________ David Mark Davis II David Mark Davis II 11 Glenview Ct Lufkin, Texas 75901 (936) 238-8507 dmarkdavis2@gmail.com
November 25, 2015 Hon. Wes Suiter Angelina County Judge P. O. Box 908 Lufkin, Texas 75902-0908
Via email wsuiter@angelinacounty.net Via USPS First Class Mail
Dear Judge Suiter:
I sent you a request along with a proposed order reminding you of your duty to complete the Trial Court’s Certification of Defendant’s Right to Appeal. This request was sent to you on November 12, 2015 via both electronic mail and USPS to your attention. A copy of this letter along with the proposed order is attached hereto.
On November 17, 2015, the Clerk for the Twelfth Court of Appeals sent me a notice stating that the above referenced certification was not on file. The Clerk sent you a courtesy copy of this letter. A copy of this letter is also attached hereto.
A trial court has a ministerial duty to complete a Trial Court’s Certification of Defendant’s Right to Appeal in every criminal case that is disposed before it’s court. This certification is to be completed at the time the trial court disposes with a case. My case was disposed in your Court on November 5, 2015. To date, no Trial Court’s Certification of Defendant’s Right to Appeal has been filed. This issue is interfering with my right to appeal as the certification is required for the Court of Appeals to have jurisdiction over my appeal.
This letter serves as my notice of intent to seek a writ of mandamus regarding this issue. This petition will be filed on December 4, 2015.
David Mark Davis II Applicant, Pro Se David Mark Davis II 905 N. Loop 499, No. 525 Harlingen, Texas 78550 (936) 238-8507 dmarkdavis2@gmail.com
November 12, 2015 Hon. Wes Suiter Angelina County Judge P. O. Box 908 Lufkin, Texas 75902-0908
Subject: Cause 14-1048-1 Via email wsuiter@angelinacounty.net Ex. Parte Davis Via USPS First Class Mail
Dear Judge Suiter,
I have taken appeal of your denial of my application for writ of habeas corpus in the above styled cause.
Pursuant TEX. R. APP. P. 25.2(d), you are required to complete a certification regarding my right to appeal. This is completed on a standard form that is available at http://www.txcourts.gov/media/208133/certificationofdefendantsrightsappendix.pdf
For your convenience, I have attached a proposed trial court certification. I went ahead and signed my portion of this proposed certification to help speed the process along.
David Mark Davis II Applicant, Pro Se No. 14-1048-1 § IN THE CONSTITUTIONAL § Ex. Parte DAVID MARK DAVIS II § COUNTY COURT § § ANGELINA COUNTY, TEXAS
TRIAL COURT’S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL*
I, judge of the trial court, certify this criminal case:
[ ] is not a plea-bargain case, and the defendant has the right of appeal. [or ]
[ ] is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal. [or ]
[ ] is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal. [ or ]
[ ] is a plea-bargain case, and the defendant has NO right of appeal. [or ]
[ ] the defendant has waived the right of appeal.
________________________ ______________________ Judge Date Signed
I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeals’s judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionary review in the Court of Criminal Appeals. T EX . R. A PP . P. 68.2 I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which I am currently living or any change in my current prison unit. I understand that, because of appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I may lose the opportunity to file a pro se petition for discretionary review.
_____________________ N/A Defendant Pro Se _____________________ David Mark Davis II Defendant’s Counsel Applicant, Pro Se State Bar of Texas ID number 905 N. Loop 499, No. 525 Mailing Address: Harlingen, Texas 78550 Telephone number: (936) 238-8507 Fax number (if any):
* “A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant’s right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case -- that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant -- a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal.” T EXAS R U LE O F A PPELLATE P RO CED URE 25.2(a)(2) Certification of Defendant’s Right of Appeal
No. ______________
The State of Texas In the _________ Court
v. of
__________________ _________________ County, Texas Defendant
TRIAL COURT’S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL*
[] is not a plea-bargain case, and the defendant has the right of appeal. [or ]
[] is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal. [or ]
[] is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal. [ or ]
[] is a plea-bargain case, and the defendant has NO right of appeal. [or ]
[] the defendant has waived the right of appeal.
________________________ ______________________ Judge Date Signed
I have received a copy of this certification.
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ACCEPTED 12-15-00273-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 11/25/2015 5:52:53 PM Pam Estes CLERK
David Mark Davis II 11 Glenview Ct Lufkin, Texas 75901 FILED IN (936) 238-8507 12th COURT OF APPEALS dmarkdavis2@gmail.com TYLER, TEXAS 11/25/2015 5:52:53 PM November 25, 2015 PAM ESTES Twelfth Court of Appeals Clerk Clerk of Court 1517 West Front Street Suite 354 Tyler, Texas 75702
Subject: Ex. Parte David Mark Davis II 12-15-00273-CR
Dear Ms. Estes:
On November 12, 2015, your office notified me of a jurisdictional deficiency concerning my notice of appeal in the above referenced case. On November 12, 2015, I submitted an amended notice of appeal. Furthermore, on November 12, 2015 I also sent the trial court a request to complete the standard form regarding the certification of my right to appeal the denial of my habeas petition.
On November 17, 2015, you notified me that the certification of my right to appeal was still not on file. A copy of this notice was sent to the trial court,
Please see attached a copy of a follow up letter that was sent to the trial court today regarding this missing document.
Respectfully,
David Mark Davis II Appellant, Pro Se CERTIFICATE OF SERVICE
I certify that at the time of filing, a copy of the foregoing Letter was served on The State of Texas through counsel of record, Mr. James Yakovsky, by email to jyakovsky@angelinacounty.net.
_________________________ David Mark Davis II David Mark Davis II 11 Glenview Ct Lufkin, Texas 75901 (936) 238-8507 dmarkdavis2@gmail.com
November 25, 2015 Hon. Wes Suiter Angelina County Judge P. O. Box 908 Lufkin, Texas 75902-0908
Via email wsuiter@angelinacounty.net Via USPS First Class Mail
Dear Judge Suiter:
I sent you a request along with a proposed order reminding you of your duty to complete the Trial Court’s Certification of Defendant’s Right to Appeal. This request was sent to you on November 12, 2015 via both electronic mail and USPS to your attention. A copy of this letter along with the proposed order is attached hereto.
On November 17, 2015, the Clerk for the Twelfth Court of Appeals sent me a notice stating that the above referenced certification was not on file. The Clerk sent you a courtesy copy of this letter. A copy of this letter is also attached hereto.
A trial court has a ministerial duty to complete a Trial Court’s Certification of Defendant’s Right to Appeal in every criminal case that is disposed before it’s court. This certification is to be completed at the time the trial court disposes with a case. My case was disposed in your Court on November 5, 2015. To date, no Trial Court’s Certification of Defendant’s Right to Appeal has been filed. This issue is interfering with my right to appeal as the certification is required for the Court of Appeals to have jurisdiction over my appeal.
This letter serves as my notice of intent to seek a writ of mandamus regarding this issue. This petition will be filed on December 4, 2015.
David Mark Davis II Applicant, Pro Se David Mark Davis II 905 N. Loop 499, No. 525 Harlingen, Texas 78550 (936) 238-8507 dmarkdavis2@gmail.com
November 12, 2015 Hon. Wes Suiter Angelina County Judge P. O. Box 908 Lufkin, Texas 75902-0908
Subject: Cause 14-1048-1 Via email wsuiter@angelinacounty.net Ex. Parte Davis Via USPS First Class Mail
Dear Judge Suiter,
I have taken appeal of your denial of my application for writ of habeas corpus in the above styled cause.
Pursuant TEX. R. APP. P. 25.2(d), you are required to complete a certification regarding my right to appeal. This is completed on a standard form that is available at http://www.txcourts.gov/media/208133/certificationofdefendantsrightsappendix.pdf
For your convenience, I have attached a proposed trial court certification. I went ahead and signed my portion of this proposed certification to help speed the process along.
David Mark Davis II Applicant, Pro Se No. 14-1048-1 § IN THE CONSTITUTIONAL § Ex. Parte DAVID MARK DAVIS II § COUNTY COURT § § ANGELINA COUNTY, TEXAS
TRIAL COURT’S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL*
I, judge of the trial court, certify this criminal case:
[ ] is not a plea-bargain case, and the defendant has the right of appeal. [or ]
[ ] is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal. [or ]
[ ] is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal. [ or ]
[ ] is a plea-bargain case, and the defendant has NO right of appeal. [or ]
[ ] the defendant has waived the right of appeal.
________________________ ______________________ Judge Date Signed
I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeals’s judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionary review in the Court of Criminal Appeals. T EX . R. A PP . P. 68.2 I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which I am currently living or any change in my current prison unit. I understand that, because of appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I may lose the opportunity to file a pro se petition for discretionary review.
_____________________ N/A Defendant Pro Se _____________________ David Mark Davis II Defendant’s Counsel Applicant, Pro Se State Bar of Texas ID number 905 N. Loop 499, No. 525 Mailing Address: Harlingen, Texas 78550 Telephone number: (936) 238-8507 Fax number (if any):
* “A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant’s right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case -- that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant -- a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal.” T EXAS R U LE O F A PPELLATE P RO CED URE 25.2(a)(2) Certification of Defendant’s Right of Appeal
No. ______________
The State of Texas In the _________ Court
v. of
__________________ _________________ County, Texas Defendant
TRIAL COURT’S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL*
[] is not a plea-bargain case, and the defendant has the right of appeal. [or ]
[] is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal. [or ]
[] is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal. [ or ]
[] is a plea-bargain case, and the defendant has NO right of appeal. [or ]
[] the defendant has waived the right of appeal.
________________________ ______________________ Judge Date Signed
I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeals’s judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionary review in the Court of Criminal Appeals. T EX . R. A PP . P. 68.2 I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which I am currently living or any change in my current prison unit. I understand that, because of appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I may lose the opportunity to file a pro se petition for discretionary review.
_____________________ _____________________ Defendant Defendant’s Counsel Mailing Address: State Bar of Texas ID number Telephone number: Mailing Address: Fax number (if any) Telephone number: Fax number (if any):
* “A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant’s right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case -- that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant -- a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal.” T EXAS R U LE O F A PPELLATE P RO CED URE 25.2(a)(2) FILE COPY
CHIEF JUSTICE CLERK JAMES T. WORTHEN PAM ESTES TWELFTH COURT OF APPEALS JUSTICES CHIEF STAFF ATTORNEY BRIAN HOYLE MARGARET HUSSEY GREG NEELEY
November 17, 2015
Mr. James M. Yakovsky David Mark Davis II Asst. County Attorney PO Box 530908 P. O. Box 1845 Harlingen, TX 78553 Lufkin, TX 75902-1845 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
RE: Case Number: 12-15-00273-CR Trial Court Case Number: 14-1048-1
Style: Ex Parte: David Mark Davis, II
Pursuant to TEX. R. APP. P. 37.1, notice is hereby given that the notice of appeal filed in this case fails to contain the trial court’s certification of defendant’s right of appeal specifically required by TEX. R. APP. P. 25.2(d). You are hereby notified pursuant to TEX. R. APP. P. 44.3 that unless a trial court’s certification of defendant’s right of appeal is filed in compliance with TEX. R. APP. P. 25.2(d) on or before December 17, 2015, the appeal will be referred to the Court for dismissal.
Very truly yours,
PAM ESTES, CLERK
By:_____________________________ Katrina McClenny, Chief Deputy Clerk
CC: Ms. Amy Fincher (DELIVERED VIA E-MAIL) Wes Suiter (DELIVERED VIA E-MAIL)
1517 WEST FRONT STREET • SUITE 354 • TYLER, TX 75702 • TEL: 903-593-8471 • FAX: 903-593-2193 Serving Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Rains, Rusk, Sabine, San Augustine, Shelby, Smith, Trinity, Upshur, Van Zandt and Wood Counties http://www.txcourts.gov/12thcoa.aspx