Garcia, Daniel

• Court: Texas Supreme Court
• Decided: December 14, 2015
• Docket: WR-84,177-02
• Status: Published

Opinion

11-CR-4103-H IN THE COURT OF. CRIMINAL APPEALS AUSTIN, TEXAS

EX PARTE DANIEL GARCIA TDCJ#l781971

TRIAL COURT: 347th DISTRICT COURT NUECES COUNTY, TEXAS APPEALS COURT: THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI-EDINBURG

ORIGINAL APPLICATION FOR WRLT OF MANDAMUS TO THE HONORABLE JUDGES .OF SAID COURT: Comes Now, Daniel Garcia,TDCJ#l78197l,relator,pro-se in the above styled and numbered cause of action and files this Original Application For Writ Of Mandamus, pursuant to the Rules of Appel- late Procedure, rule 38.7 amendment or Supplication, and would show the court the following. r.

Relator 1.01 daniel Garcia,TDCJ#l781971 is an Offender incarcerated in the Hughes Unit,Route 2 box 4400, Gatesville, Texas, Coryell County, Texas 76597.

RECEIVED IN COURT OF CRIMINAL APPEALS

P.l GEC 14 2015

Abel Ac~, Clerk 1:02 Relator has exhausted his remedies and has no other adequate remedy at law.

1.03 The act sought to be compelled is ministrial, not discretio~?·:v

nary in nature T.C.C.P. art.2.2l,Duty of Clerks requires the

~2~ respondent to immediately transmit to the Cburt any motions

filed under T.c.c.P. 2.2l(a)("l). Had such documents been

transmitted to the Court by respodent as required by respon-

dent as required by statut~, relator would have recieved

notice from the Coutt.

II.

Respondent,

2.01 Respondent, Anne Lorentzen, in her capacity as District Clerk

of Nueces County, Texas. Has a ministrial duty to recieve and

file all papers in a Criminal Proceeding, and to perform all

other duties imposed on the clerk by law prsBant to T.c.c.P.

ART. 2.21., and to transmit to th~ court, any motions, answers

filed, and a certificate reciting the date upon which that

finding was made by the convicting court• Anne Lorentzen,

District Clerk, Nueces County may be served at her place of

business at 901 ~eopard Street,room 313, Corpus Christi, Texas

78401.

III.

VIOLATION OF ARTICLE 2,.21 OF THE TEXAS CODE OF CRIMINAL PROCEDURE

3.01 The respondent violated Article 2.21 of the Texas Code of

Criminal Procedure by failing to present to the court Motion

P.2 For Leave To Amend Applicant's Application For Writ Of Habeas

Corpus. A certificate reciting the date upon which that find-

ing was made by the court within the time prescribed by law

and within a reasonable time from the date on which the docu-

ments were requested to be transmitted.

3.02 Request for the Motion For Leave To Amend Applicant's Applic-

ation For Writ Of Habeas Corpus, any answers filed, and a

certificate reciting the date upon which that finding was

made,

!3~03 To date, relator has reciev~d no response from his motion

filed in this action.

3.04 As is clear from relatorts motion he wishes to have a hearing

on his motion, any answers £iled, and a copy of the certifi~.

cate reciting the date upon which that finding was made by the

court.

3.05 Article 2.2l(a)(l) clearly states '"in a criminal proceeding,

a clerk of the District or County shall: recieve and file all

papers[emphasis added]" failure to present relator's motion

to the court violates the T.c.c.P. 2.2l(a)(l) and also State

law as cited in Stat~ ex rel Rodriguez v. Marquez,4 s.W.3d

227(Tex.Crim.App.l999)-to obtain relief from this court, a

relator must show:(l) a ''clear" right to relief usually when

the judicial conduct in question violates a "ministeti~l"

duty, and (2) no adequate remedy at law to redress the alleged

P.3 harm.see Buntion v. Harmon,827 S.W.2d 945,947(Tex.Cr.App.

1992). Respondent is in violation of this procedure, mini-

sterial duties, and thus the law of the State.

IV.

Prayer for Relief

WHEREFORE, PREMISES CONSIDERED, Relator Daniel Garcia,pro-se,

respectfully request a finding that respondent did not present

his Motion to the Court within a reasonab~e time after the date

they were presented and that relator brought this litigation in

good faith and has substantially.prevailed; Relator prays for an

order directing respondent to present his motion to the court,any

answers filed, and a certificate reciting the dat~ upon which that

finding was made to the court as directed in T.c.c.P. 2.2l(a)(l)

and as requested 1n relator's affidavit.

Affidavit I, Daniel Garcia, do hereby swear that the foregoing statements are true and correct to the best of my knowledge unde~~~~n~lty of perjury. Executed on this the 6th day of

DAn1Pl. ··'!'''·. ,lf. Ga TbCJ#l781 Hughes Unit Route 2 Box 4400 Gatesville,Texas 76597

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Certificate of Service

I, Hereby certify that a true and correct copy of the above

Application For Writ Of Mandamus was sent to the District Attorney

for Nueces County by placing a copy in th~ u.s.Mail addressed to

the Nueces County District Attorney's Office on this 6th day

of December,2015.

R

P.5 ORDER

On this day, came to be heard the foregoing relator's Application

For Writ Of Mandamus and in the interest of justice it appears to

the court that the same should be:

--------------------Granted

It is ordered therefore that the District Clerk shall immediatelly

transmit to the court the Relator's Motion For Leave To Amend

Applicant's Application For Writ Of Habeas Corpus, any answers

transmittal was made.

Signed on this the --------day of ------------------------------ ,2015

Judge Presiding

P.6