Gordon, Robert

• Court: Court of Appeals of Texas
• Decided: April 24, 2015
• Docket: WR-10,271-21
• Status: Published

Opinion

Clerk Abel Acosta /01 (;{!/ -d-l Court of C.rimi_n.g_J Af;lpeals ofrf.\~110cument contains s P.O. Box 12308. Capltol StRt~nn orne A11 c:: ;- ; n TP ' 7 8 711 tlages that are of poor quality _______ , .xas -- atthetimeofimaging. Dear District Clerk: Enclosed please find the Ori8ina1 of Relator's Writ of Mandau1us and two copies thereof to be filed with the Court for ruling on same.

,Please notify me of the filing date with the Court and the Court's filing number for such purposes. Thank you kindly for your attention a.nd cooperation in these regards. Sincerely your,

Robert Gordon TDCJ-ID#319173 Wynne Unit 810 FM 2821 Huntsville, Texas 77349 ·

RECE~VED ~N COURT OF CRVMif\!~l APPEAlS APR 2 4 2015 Ab~ Acosta$ Clerk

~ .·. ROBERT GORDON, vs. APPLICANT-RELATOR CAUSE NO'S ------..IN THE TEXAS COURT OF CRIMINAL APPEALS \ AUSTINs TEXAS TEXAS COURT OF CRIMINAL APPEALS CAUSE NO'S. 10085 AND AUSTIN, TEXAS, 10238W. AND 13.472 AND WILLIAM STEPHEnS" ·DIRECTOR. 2 2 7-7 8. / ' RESPONDENT's' APPLICATION FOR \-JRIT OF MANDAMUS. TO THE HONORABLE JUDGES OF SAID COURT; NOW COMES Robert Gordon, Relator, pro se in the above-style and numbered cause's of action and files this original Application for writ of Mandamus pursuant to Texas Constitution Article 5, Subsection C. See also Texas Constitution Article 5, Section 3. This authority is als6 found ~n Article 4.04 (1) of the Code of Criminal Procedure; and Texas Rule Appellate Procedure Article 52.1, See Matthaei vs. Clark,(Sup.1969) 110 Tex. 114, 216 S.W. 856; EX PARTE BROOKS,((r App 1986) 722 S.W. 2d 140. See also Dallas Area Rapid Transit vs. Amalgamated Trarisit Union Local No. 1338 (Sup 2008) 273 S.W. 3d 659, Certiorari denied 129 S.Ct. 2767 5 174 L.Ed.2d 284. See also Martin vs; Hamlin,---25 S.W. 3d 718 (Tex. Cr. App. 2000);See also State Ex rel. Healey vs. McMeansJ--884 S.W. 2d 772 (Tex. Cr. App. 1994); EX PARTE Rodriguez vs. Court of Criminal Appeals, 980 S.W.2d 475 (Tex. CR.App. 1998). I. RELATOR; Robert Gordon TDCJ-ID#319173 is an offender incarcerated in the Texas Departmeni of Criminal Justice--Institutional Division and is appear- ing pro se, who can be located at the Hynne Unit, 810 FM 282.1, Huntsville, Texas 77349. II. RESPONDENT: Respondent Texas Court of Criminal Appeals, P.O.Box 12308,Capitol Station, Austin, Texas 78711. Respondent William Stephens DiLector P.O.Box 99~ Huntsville, Texas 77342. \

Page L..

III. Relator has exhausted all remedies and has no other adequate remedy

at law.

The act sought to be compelled is ministering not discretionary in

nature. Braxton vs. Dun~,-803 S.l:7.2d 318, 320 (Tex. Cr. App. 1991). An act

is ministerial ;!when the law clearly spells out the duty·to be performed ...

with such certainty that nothing is left to the exercise of discretion or

judgment". Tex~DepJ:..:_~Cor~ec tions vs. Dalehi te, 623 S. W. 2d 20 ~ 24

(Tex. Cr. App. 1981)~

The Court of Criminal Appeals and each iudge thereof shall have~ and

is hereby given, the power and authority to grant and issue the issuance

of writ of habeas~ and in criminal matters~ the writs of Mandamus~

Procedendo~ Prohibition~ and Certiorari. The Court and each Judge thereof

have : and is hereby given~ the power and authority to grant and issue aad

cause the issuance of such other writs as may be necessary to protect its

jurisdiction or enforce its judgments. Texas Constitution Article 5,

Subsection C. IV, HISTORY OF THE STATE'S CASE AND IN CUSTODY REQUIREMENT

Relator was convicted in cause number 10085 and 10238W in which

Relator p lP.rl eui 1 ty to the two cause's in exchange f Ot' two .( 2) four. ( 4)

yeA: sentence~ to be r8n concurrently, that would be probated,

Jurlge Lindsey personally participated in the plea bargaining processes.

Relator was told by Judge Lindsey that is he decided at any time, th~t he

was going to reject the plea bargain agreements, that Rela~or would be

a]lowed, and shall he permitted to withdraw Relator's pleas of guilty,

However, At the point in which Judge Lindsey hearrl the revocation of

probation hearing he stacked cause number 10218W on top of cause number 10085J thereby rejecting the plea bargain agreements. Page 3.

These plea bargain agreements were consolidated and tried at the same

time as Relator plead guilty to both offenses at the same time in cause

number's 100~5 and 10238W. To provide evidence of this fact Relator would

point this Court to the fact in order for Judge Lindsey to be able to

consolidate these cause number's 10085 and cause number 10238W, Relator

had to waive Relator's rights to indictment in which Relator did in order

to recive the two cause's 10085 and 10238W to be tried together at the

same time, so Relator could receive concurrent setences otherwise Relator

would not of waived Relator's rights to be indicted first before the Court

could proceed on both cause's 10085 and 10238W, as the Court lacked

jurisdiction for trial of both cause's at that time. Relator would fuether

argue to this Court that Relator is actually innocent of committing these

offenses of Theft in cause number 10238\.J and Unauthorize Use of a Motor

Vehicle in ~ause number 10085.

Relator would show this Court that because of the serious collateral

consequences arising from a conviction for felony thef~ the doctrine of

mootness does not prohibit this collateral attack. See Ex Parte Guzman,

551 S.W.2d 387 (Tex. Cr. App.1977); Ex Parte Burt, 499 S.W.2d 109 (Tex Cr.

App. 1973); Ex Parte Jentsch,510 S.W.2d 320 (Tex. Cr. App. 1974); Ex Parte

Langston, 510 S.W. 2d 603 (Tex. Cr. App. 1974);See also Ex Parte Harp, 561

S.W. 2d 180 (Tex. Cr. App. 1978).

Relator would contend that it is well settled that a habeas corpus 11 Application Applicant meets the statutory in custody"requirements when,at

the time he files the petition he is in custody pursuant to the conviction he

attacks or he is in custody pursuant to another conviction that is positively

and demonstrably related to the convictions he attacks. See Carter vs.

Procunier, 755 F.2d 1126 (5th Cir. 1985); See also Carter vs. Estelle, 677

F. 2d 427 (5th Cir. 1982). Page 4.

Relator would assert that Relator is confined pursuant to a May 20th

1986: conviction for aggravated assault in cause number 13,472, wherein

the 12th Judicial District Court of Walker County, Texas, upon plea of

not guilty and jury trial, Relator was found guilty and punishment was

assessed by the jury at 99 years imprisonment and ordered to run

consecutively with the sentence Relator was assessed upon conviction for

credit card abuse of 20 years imprisonment as punishment in cause number

22778. Therefore, Relator's present confinement is set at 119 y~ars

imprisonment. Punishment enhanced by proof of the prior convictions in

cause rtumber 10085 and cause number 10238W in both convictions in cause

numbers 22778 and in cause number 13,472, that Relator is now confined on.

However, in cause number 22778, Relator plead true to the enhancement Count's cause number 10085 and cause number 10238W. Therefore, Relator

would show that Counsel at the 1981 trial was ineffective because he failed

to investigate the validity of Relator's 1977 convictions that the prosecutor

used the 1977 convictions for enhancement counts when he should have known

that it was void. See. V.T.C.A.Penal Code 3.03.

A defendant may not by agreement render legal a punishment which is

not otherwise authorized by law. Heath vs. State, 817 S.W.2d 335 (Tex. Cr.

App. 1991). In circumstances such as Rel~tor's ' 1 sentences shall run

concurrently~ V.T.C.A.Penal Code 3.03. This language creates an absolute

restriction of a trial Court's general authority to impose consecutive

sentences. See Wilson vs. State,677 S.W.2d 518 (Tex. Cr. App. 1984). A

defect which renders a sentence void may be raised at any time. Ex Parte

Mcjver,586 S .. W.2d 851, 854 (Tex. Cr. App. 1979); Ex Parte Shields, 550

S.W.2d 670 7 675 (Tex. Cr. App.1977).

Clearly, La Porte vs. State,840 S.W. 2d 412 (Tex. Cr. App. 1992), Leaves

no doubt, on the State of the law in this area of the law. Page 5. See also Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993), and Ex Parte

McJunkins, 954 S.H.2d 39,39-43 (Tex. Cr. App.1997);. See also Cook vs. Lynaugh, 821 F.2d 1072 (5th Cir. 1987); See also Hill vs. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 369, 88 L. Ed. 2d 203(1985). As Relator clearly had a plea bargain for concurrent sentences in cause No's. 10085 and

10238W. See attachment hereto of Exhibit "A" o incorporated herein for all purposes. Clearly Relator is entitled to reversal of the convictions and sentences. Relator suggests the proper remedy in cause number's 10085 and 10238W should be found to be void under La Porte vs. State, 840 S.W.2d 412 (Tex. Cr. App. 1992); and Ex.Parte Sims 868 S.W.2d 803 (Tex. Cr. App. 1993); And Ex Parte McJunkins,954 S.W.2d 39-43 (Tex. Cr. App. 1997), and remand back to the trial Court for new trial, relying on these above described Court decisions and in cause number's 22778 and 13,472 these sentence's should be reversed for resentence without the void convictions 10085 and 10238W being used for enhancement Counts purposes. As a matter of the law. See Burgett vs. State of Texas,389 U.S. 109, 112-13, 88 S.Ct. 258, 260-61, 19 L. Ed. 2d 319 (1967); Zales vs. Henderson, 433 F.2d 20 (5th Cir. 1970): Martinez vs. Estelle,612 F.2d 173 (5th Cir. 1980); Carter vs. Estelle, 677 F.2d 427 (5th Cir. 1982); See also Carter vs. Procunfer755 F.2d 1226 (5th. Cir. 198S); Cook vs. Ly~augh:821 F.2d1072 (5th. Cir. 1987). v. THRESHOLD QUENTIONS Several preliminary issues will be raised which must be considered before the issues are revie.ed on there meri~s; this has the effect of 11 making this case more complex than the issues of complaints Unkept Plea Bargain agreements and void stacking of the sentence~ in cause number 10085 and 10238W' 1 , which changed Relator's punishment from a total of four (4) years maximum to a eight (8) year maximum, prison sentence. See Pa·ge 6. Attachment hereto of Exhibit ;'B"; 1 of 3 pages incorporated herein for all

purposes. Relator did the whole eight (8) years maximum sentence.

A EXAMINATION OF THE ATTACHMENT Exhibit ' 1 B" is a affidavit of

Charley Valdez, at page 2 at the bottom of the page is a record of

Offender Robert Gordon TDCJ-ID#319173 time earning status's to show

promotion and demotion dates: :.vJhich shows Relator was betv1een 11-23-

1978 to 06-13-1982 a S4 Trusty Line Class~ 54 Status earns 30 days for

every 30 days done and earns additionally another 30 days good time. A

total of 60 days for time earning status, Time line class which equals

all time earn for that period. This chart in this box also shows

from 10-05-1982 to 05-22-1983 that Relator was Line class 3, which does

not earn any time of good time status, this time period only earns day

for day time earning status, which means no good tine earn. The chart

further shows that Relator was Line 2 status from 05-23-1983 to 07-09-1983,

this time earning status earns day.for day with only 10 days added for

good time status. A line I Status earns every 30 days he receives 20 days

good time earning status. The "B" Status earns a extra 10 days for every

30 days that Relator is Line I Status.

Clearly, there is a chart showing that Relator was continually

confined between 11-23-1978 to 03-28-07. Which shmvs Relator discharged

the original 1977 convictions and the 1980 conviction up to th~ date

and begain serving the 1984 conviction up to the date Relator is still

confined under.

The chart above described clearly shows Relator completed the two

four (4) year sentences as stack by Judge Lindsey. Therefore, Relator suffer

the punishment of the prejudicial stacking of the t\vo four (4) year sentences

and Relator has completed doing the eight (8) years sentence in full.

Therefore, Relator seeks to withdraw Relator's pleas of guilty in P:tge 7.

cause number's 10085 and 10238W and be able to plea again, Anew to not

guilty in accordance to the prejudicial punishment of the Eight years

that Relator had to do, in violation of Relator's original plea bargain

agreements of the (2) four (4) year concurrent sentencing. La Porte vs.

State, 840 S.W.2d 412 (Tex. Cr. App. 1992); and Ex Parte Sims,868 S.W.

2d 803 (Tex. Cr. App. 1993); And Ex Parte McJunkins,954 S.W.2d 39-43 (Tex. Cr; App. 1997).

Relator was cited for abuse of the writ process pursuant to an order

of the Court of Criminal Appeals, pn May 25th,1983. Said Order is attached

as Exhibit "C", incorporated herein for all purposes.

Relator states that, as set out in Relator's·original Application for

habeas corpus, Relator has not been provided with the opportunity to

challenge the earlier convictions in number's 10085 and 10238W, on the

issues now presented due to the fact that the only issue on Relator's prior

Appeal proffered by Counsel Jeffrey A. Kearney was the issue of the Judge's

authority to cummulate Relator's sentences. In this Appeal Counsel Jeffrey

A. Kearney received a proitable decision by the Court of Criminal Appeals

in it's opinion by the Court ordering the cumulation recitals in the

sent.ences in cause number 10238W are ineffective and are therefore ordei"ed

deleted therefrom, under the Court's decision in Ex Parte Reynolds,462 S.W.

2d 605 (Tex. Cr. App. 1970). However, the Court didn't stop there,it went on

to state: 11 Finally ~ \ve have reviev1ed the Appellant's pro se allegations

and we find them to be \vithout· merit'.' See Gordon vs. Stat~ 575 S.W.2d

529, at 534 (Tex. Cr. App. 1978).

Relator raised in Relator's Prom Se allegations the conviction and 11 sentences w·ere based on "Unkept Plea Bargain Agreements •

Relator would further show the Court that Relator filed two (2) writ's of habeas corpus while Appeal was still pending before the Court of Pa'ge 8. Criminal Appeals, which Judge Lindsey ordered Relator's two (2) writs of

habeas corpus to be forwarded to the Court of Criminal Appeals to be treated as pro se brief's on Appeal, per order of the Judge Lindsey. Upon review of these Pro Se Brief's on Appeal, .because the Court of Criminal Appeals entered into a judgment in Relator's behalf by ordering the cumulation of cause number 10238W as being ineffective and therefore ordered deleted therefrom, and ordering the reformation of the sentences of cause number's 10085 and 10238W to be ran concurrently. See Gordon vs. State,575 S.W.2d 529, at 534 (Tex. App~ 1978). ~elator's pro se brief's were never reached on there merits because

the Court of Appeals was ordering the reformation of the stacking order of the Court Judge Lindsey. See Gordon vs. State, 575 s~w. 2d 529, at 534 (Tex. Cr. App. 1978), and this is why the Court found Relator's 11 Unkept plea bargain agreement claims in the pro se brief's to be without merit, because the Court of Criminal Appeals was reforming the stacking of the sentences". So, Relato~ didn't suffer no prejudice, as Relator was having Relator's original plea bargain agreement enforced by the Court of Criminal Appeals ordering the reformation of the sentences of cause number 10085 and 10238W to be ran concurrently. Gordon vs. State,575 S. H. 2d 529, at 534 (Tex. Cr. App·. 1978). However, the State filed a Motion for Rehearing vJi thin the Texas Court of Criminal Appeals under its rules, ordered a rehearing, on the State's filed Motion for Rehearing. The Rehearing was granted, and that part of the original opinion declaring the cumulation order invalid and reforming the sentence is set aside and the judgment including the cumulation orders are now affirmed. See Gordon vs. State, 575 S.W.2d 529

at 534-535 (Tex. Cr. App. 1979). Page 9.

Relator has did the full sentences as stacked and has fully completed

the sentences as stacked due to the Court of Criminal Appeals opinion and

decision. See Gordon vs. State,575 S.W.2d 529, at 534-535 (Tex. Cr. App.

1979). So, Relator has suffered the prejudicial harm of the Court of

Criminal Appeals opinion and decision on rehearing. See also Exhibit "Bn ' the affidavit of Valdez~

Relator would further point out to the Court that on direct Appeal

Counsel Jeffrey A. Kearney completely abandoned Relator on Appeal when he

received the proitable decision by the Court of Criminal Appeals in its

opinion. However, on State's granted Motion for Rehearing and the Court of

Criminal Appeals decision in restacking the sentences. Gordon vs. State,

575 S.W.· 2d 529, at 534-535 (Tex. Cr. App. 1979).

Counsel Jeffrey A. Keirney merely sent Relator the Court's decision,

with a letter of the opinion and never advised Relator of the rights to

file a Motion for discretionary review, thereby, denying Relator of the

right to do so and just merely abandoned Relator.

Relator due to the Court's never reaching the ~'Unkept Plea bargain 1 issue' raised by Relator. Relator filed the first application for writ of

habeas corpus in the 3rd Judicial District Court of Tarrant County, Texas.

The assistant district attorney in Fort Worth, Texas, filed a

writ response to Relator's first writ of habeas corpus filed and heard as

a writ of habeas corpus and attached a copy of Relator's two writs of habeas

corpus that were forwarded to the Court of Criminal Appeals to be consider

as Pro Se brief's on Appeal, which ~ent without being actually heard on oits

merits because the Court's order reforming the sentence pursuant to attorney

Jeffrey A. Kearney's brief on Appeal receiving a favorable Court of

Criminal Appeals decision. See Gordon vs. State,575 S.W;2d 529, at 531-

534 (Tex. Cr. App. 1978). The Assistant District Attorney in Fort Worth, Texas, attached a copy .Page 10. of Relator's Pro Se brief's on Appeal and pointed to the Opinion of the

Court of Criminal Appeals wherein the Court stated that Relator's Pro Se

brief on Appeal was without merit and argued that the Court should cite

Relator for abuse of the writ of habeas corpus because Relator has already

addressed Relator's claims on Appeal and the Court of Criminal Appeals

has found them to be without merit and Relator is again attempting to have

the same claims heard again after they have already been heard and denied

and found to be without merit by the Court of Criminal Appeals. The

assistant district attorney ''played the district Court Judge and the Court

of Criminal Appeals", by these arguments and committed fraud on the Court in

which the assistant district attorney acted with a intentional ill motive 1 which should not have pass even the most lenient ethical 'smell test 1.' He

clearly bypassed questions of ethic's in a effort to gain advantage in this

litigation. He clearly acted in bad faith and ignored the facts of the true

reasons in why Relator's Pro Se brief's on Appeal were found to be without

merit by the Court of Criminal Appeals decision and opinion in which the

Court of Criminal Appeals was ordering, the cumulation recitals in the

sentence in cause number 10238W to be ineffective and therefore ordered it

deleted therefrom. As, the next statement by the Court of Criminal Appeals:

Finally 1 we have reviewed the Appellant's Pro Se allegations and we find

them to be without merit, but this finding was made because Relator

received a favorable decision on Appeal by the unstacking order. See Gordon

vs. State, 575 S.W.2d 529, at 531-534 (Tex. Cr. App. 1978).

Furthermore, the Assistant district attorney also gain advantage by

his false arguments to the Court of Criminal.Appeals by that Court citing

Relator for writ abuse in Relator's first writ of habeas corpus that was

considered at that time and Reatohas been denied the ability to ever

file another writ of habeas corpus since the Assistant district attorney made his fraudulent arguments that got the Court of Criminal Appeals to cite Page 11. 11 Relator for writ abuse. See prior \vrit· abuse attached hereto as Exhibit C"

incorporated herein for all purposes.

Subsequently, the State filed a Motion for rehearing within the Texas

Court of Criminal Appeals under the Rules, ord~red a rehearing on the

State's filed Motion for rehearing. The rehearing was granted, and that

part of the original opinion declaring the cumulation set aside is now

reversed and the judgment including the cumulation order are now affirmed.

See Gordon vs. State,575 S.W.2d 529, at .534-535 (Tex. Cr. App. 1979).

Relator would argue to the Court that the rehearing the Court of

Criminal Appeals entered into error by relying on Spencer vs. State, 503

S.W.2d 557 (Tex. Cr. App. 1974), and Ex Parte Crawford, 36 Tex. Cr. App.

180, 36 S.W. 92 (1896); Ex Parte March, 423 S.W. 2d 916 (Tex. Cr. App.1Yb8),

And Ex Parte Davis, 542 S.W.2d 117 (Tex. Cr. App. 1976).

Relator contends that the trial Court erred in cumulating the sentences

because concurrent sentences are mandated by Tex. Penal Code Ann. 3.03 (Ver-

non's 1974):

Section 3.03 provides:

Uhen the accused is tound guilty ot more than one offense, arising out of the same criminal episode prosecuted in a single criminal action, sentences tor each offense for which he has been found guilty shall be prononced. Such sentences shall run concurrently.

~he Court of Criminal Appeals on rehearing erred in thj~ it relied on

outdated cases and law ...

Relator would show the Court where a trial Judge's cumulates and

does increase punishment after revocation, an additional issue is presented:

Whether an increise in punishment after revo6ation violates due process

under North Carolina vs. Pearce, 395 U.S.711, 89 S.Ct. 2072, 23 L.Ed. 2d

656 (1969). Cf. Bovie vs. State,5b5 S.W.2d 543 (Tex. Cr. App. 1978);Lechuga vs. State,~32 S.W.2d 581 (Tex. Cr. App. 1975). Page 12.

The Court of Criminal Appeals additionally stated in La Porte vs.

State, 840 ~.w.2d 412 llex. Cr. App. ~Y92) that:

"An improper cumulation order is, in essence, a void- sentence, ana such error cannot be waived. A derect which renders a sentence void may be ralsed at any time. Levy vs. State,81~ S.W.2d 801 (Tex.Cr.App. 1991).

The La ~orte, Court further recognized that it had vacated improper

cumulation orders presented for tne first time in Postconviction writs of

habeas corpus. La Porte,Supra, footnote 5. See Ex Parte Ashe, 641S.W.2d

243 (Tex. Cr. App. 1982), and Ex Parte Vasouez, 712 S.W.2d754 (Tex. Cr.

App. 1986). See also Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App.1993),

Ex Parte McJunkins,954 s.W.2d 39, 39-43 lTex. Cr. ~pp.1997).

~elator contends that as a matter of the law the trial Court, as well

the Court of Criminal Appeals has erred in cumulating the sentences

because concurrent sentences are mandated by Tex. Penal Code. Ann. 3.03

(Vernon's 1974), as a matter of law. See La Porte vs. State,840 S.W.2d 412

(Tex. Cr. App. 1992); Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993),

and Ex Parte McJunkins, 954 S. \v. 2d _39, 39-43 (Tex. Cr. App. 1997), in which

Relator relies and is entitled to as a matter of law.

Relator's convictions should be voided and Relator returned to the

trial Court to face these charges again, as Relator's plea bargain

agreements were violated by the Court and Relator has already did the

sentences, as cumulated against Relator in cause number's 10085 and

10238W. Relator has suffered the prejudicial harm of the stacking of the

sentences. Relator should be able to withdraw the pleas of guilty, as

Relator was told he would be allowed to do, if Judge Lindsey didn't

except the pleas of guilty. Relator is entitled to relief under Ex Parte Sims, 868 S.W.2d 803, at 804-805 (Tex. Cr. App. 1993); Ex Parte McJunkins, Page 13.

954 S.W.2d 39,39-43 (Tex. Cr. App. 1997).

Relator attempted to file another application for w~it of habeas

corpus when Relator came accross the case of La Porte vs. State, 840

S.W. 2d 412 (Tex. Cr. App. 1992), and arguing to the Court that their has

been a intervening change in the law which should allow Relator the

consideration of another application for writ of habeas corpus. However, the

Court again refused to hear, and intertain the claim for relief that Relator

should be entitled to by the Court of Criminal Appeals.

The Court should relize that there is no new habeas corpus claim ~r1hen

a Applicant merely asserts that a previous ruling which precluded a merits

determination was in error. There has been no final determination on the

merits of Relator's first application for writ or for that matter there

hasri't been any consideration undertaken by the Court of Criminal Appeals

under 11.07 that has ever been undertaken by this Court in none of Relator's

prior applications in any convictions in cause number's 10085 and 10238W,

and cause number 22778 and cause number 13,472, on there merits and there

has never been a written response on there merits, it always has been on

procedural grounds, such as no proper oath being given to the application

which is a requisite to the application. See Code of Criminal Procedural

requisite Article 11.14 (5) or Relator had a direct Appeal pending as

another procedural ground in keeping Relator's applications from being

heard on there merits in any of the above described causes, as it always

has been Relator's pleadings were deficient as a matter of pleading, and

denial \vi thout a vlri t ten dec is ion. The only reasonable interpretation of the

denials of Relator's Applications by the Texas Court of Criminal Appeals

is that the Court invoked proceduaral default and did not decide the case

on the merits of the Unkept plea bargain agreements, as pointed out by

Relator. Page 14.

ARTICLE I, SECTION 12 HABEAS CORPUS

The writ of habeas corpus is a writ of right, and shall never be

suspended. The Legislature shall enact laws to render the remedy speedy

and effectual. See Code Criminal Procedure Article 1.08 and Article 11.07z

Section 4.

Relator would assert to the Court of Criminal Appeals that in Ex Parte Torres,943 S.W.2d 469, at 475-476 (Tex. CR. App. 1997); "Because the direct

Appeal record contained insufficient evidence to evaluate the ineffective

assistant of Counsel issue, we hold that the rejection of his claim on

direct appeal does not bar relitigation of his claim on habeas corpus to the

extent that Applicant seeks to gather and introduce additional evidence not

contained in the direct Appeal record".

Relator has a similar claim of review on Appeal. Relator raised on

Appeal that the "pleas of guilty were based on Unkept Plea bargain

agreements''. No evidentiary hearing was ever entertained by the Court to

allow Relator to develope the facts of the record on Appeal. Relator would

point the Court to review Relator's Exhibit "A" a letter written to Relator

by Counsel Art Brender who represented Relator at the plea bargain

undertaken by Judge Lindsey.

Clearly, a revie\v of exhibit "A" establishes by examination of this

letter that Realator had plea bargain agreements at the time Relator entered

a plea of guilty which Relator was told by Judge Lindsey that he would

except the plea bargain agreements prior to exc~p~ance of the plea by

Judge Lindsey.

This letter by Art Brender to Relator shows that upon Judge Lindsey

adding a cumulation order to cause number 10238W and stacking the sentence

on top of cause number 10085, Relator immediately complained to Art Brender

of the unkept plea bargain agreements as the letter was written to Relator by Art Brender in response to Relator's letter to Art Brender dated Page 15.

February 23· 197 8, that he responded to on March 2,197 8, in his response he

makes it clear "the plea bargains in Judge Lindsey's Court were, at that

time, even though not required by law, placed in the record, and the

matters to which you inquire should be a matter of record".See Exhibit "A"

Relator would contend Judge Lindsey excepted the plea bargain agreements

at that time and assessed two probations of four (4) years that were running

concurrently.

As, it is well established that where a trial judge does not order that

two sentences in two different cases shall be cumulative, the terms of

imprisonment automatically run concerrently. Ex Parte Reynolds,462 S.W.2d

605 (Tex. Cr. App. 1970); See also Gordon vs State,575 S.W.2d 529,at 532

(Tex. Cr. App. 1978).

Thus, Relator argues that since the judgments placeing Relator on

probation did not indicate that the sentences were to be cumulated, the

attempted cumulation after revocation is ineffective, as Judge Lindsey

excepted the pleas of guilty for two concurrent sentences, which were

suspended and Relator was placed on probation for four (4) years.

Rela«lor would point this Court to examine Exhibit "D" attached hereto incorporated herein for all purposes. This Exhibit "D" which instrument is

entitled "conditions of Probation, in cause number's 10085 and 10238W,

shows on May 12th, 1977, Relator was placed on probation for a period of

Four (4) years, for the offenses Theft of property over 200 & under $10,000 cause number (10238W) and Unauthorized Use of a Motor Vehicle Cause number

(10085) by the Honorable Judge Charles W. Lindsey. Relator was only required

to report to the probation Officer of Tarrant County, Texas on the 6th day of

June, 1977, and on the 6th day each month thereafter, during probation.

Relator was only assessed one court cost and one probation fee by Judge Page 16.

Lindsey and this instrument was written by Judge Lindsey and signed by

and signed by Judge Lindsey, himself.

Clearly, Judge Lindsey excepted the Plea bargain agreements.

However, Relator's punishment, upon revocation of probation, was in

fact increased to eight (8) years. As such, the trial Judge's actions in

entering a cumulation order violated the plea bargain agreemerits and

additionally presented issues in: nwhether an increase in punishment after

revocation of punishment violates due process under North Carolina vs.

Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L. Ed. 2d 656 (1969). CF. Bovie,

vs. State, 565 S.W. 2d 543 (Tex. Cr. App. 1978);Lechuga vs. State, 532 S.W.

2d 581 (Tex. Cr. App. 1975).

Judge Lindsey's revocation hearing, he stacked cause number 10238W on

top of cause number 10085, thereby rejecting the plea bargain agreements,

but he didn't allow Relator to withdraw Relator's ple~s of guilty.

Relator will show this Court that Judge Lindsey didn't even have the

right to proceed on cause number 10238W at the time in this cause number

10238W until it was consolidated by Relator waiving Relator's rights to be

first indicted by the grand-jury, pursuant to the plea baigain agreements

of concurrent sentences of probations of four (4) years.Relator wouldn't

have waived indictment by the grand-jury unless the two cases were

consolidated, cause number''s 10085 and 10238W to be tried together, at the

same time, so Relator could receive concurrent sentences.

The pleas were involuntary because they were based on an assurance

from Judge Lindsey that he eould only assess punishment of two (2) Four

(4) year sentences that he would run concurr~ntly together probated.

On Appeal even though Relator filed a Pro Se brief on Appeal it was

never considered on its merits because the Court of Appeals found in Page 17.

in accordance with Relator's attorney's brief he obtain a favorable

decision in which the cumulation and stacking of Relator's sentence ~n

cause number 10238W was found to be ineffective and ordered to be deleted

therefrom. Thereby reforming the sentences to run concurrently. Gordon vs.

State, 575 S.W.2d 529, at 534 (Tex. Cr. App. 1978).

Relator's brief was found to be without merit because in the above

Court's opinion the Court deleted and reformed the sentences.Sb, at that

time Relator was receiving the sentences concurrently, so Relator wasn't

going to suffer no prejudicial harm. So Relator's brief went without the

unkept plea bargain claim by Relator ever being considered.

However, it must be remember that the State was granted a Motion for

Rehearing and the Court of Criminal Appeals in it's original opinion

declaring the cumulation order invalid and reforming the sentence is set

aside and the judgments including the cumulation orders are now affirmed.

Gordon vs. State, 575 S.W.2d 529, at 534-535 (Tex. Cr. App.1979).

Counsel Jeffrey A. Kearney abandoned Relator on App~al and did not

advise Relator of the right to discretionary review by the Court of

Criminal Appeals.

Relator was left with just filing the first habeas corpus Application

arguing unkept plea bargain agreements.

It must be remembered the State district attorney mislead the Court in

his response to the writ, by asking this Court to cite Relator for writ

abuse and arguing to the Court of Criminal Appeals that Relator's claims

had already been heard on Appeal and that Coprt found the claims to be

without merit and asking the Court to cite relator for writ abuse, which

the Court did, and left Relator without Relator's claims of a unkept plea

bargain agreements ever being address on there merits.

Relator would point out in Ex Parte Torres,943 S.W.2d 469 (Tex. Cr. Page 18.

App.1997), and Ex Parte Thomas,953 S.W. 2d 286 (Tex. Cr. App. 1997),the

Court has made clear that no final disposition unrelated to the merits

and that never addressed the merits of the grounds raised in Relator's

previous Pro Se brief on Appeal or Relator's first application for writ

of habeas corpus which ended in Relator being cited for writ abuse and

the Court's never hearing none of Relator's writs, which there was no

final disposition of Relator's initial writ application and in relation

with Tex. Code. Crim. Proc. 11.07 Section 4 does not bar this Court from

addressing the merits of this instant application for mandamus, habeas

corpus to take whatever action it deems appropriate to address the claims

raised by this Relator in accordance to the Tex. Code. Crim. Proc. Art.

11.07 3(C).

These above cited cases entitled Relator to ONE BITE AT THE APPLE,

THEY clearly contemplated that bite would be a full one. Relator hasn't

had no bite at any previously filed Pro Se Brief's on Appeal or any 11.07

postconviction application for writ of habeas corpus, because the Court's

denied relief on procedural defaulted grounds.Relator has had no bite at

the apple. See also Ex Parte RawhiHson, 958 S.W.2d 198 (Tex. Cr. App.1997).

In Relator's initial application for writ of habeas corpus all claims

were not addressed on their merits. Relator meets the exceptions to

dismissal.

Relator would also point out to this Court of Criminal Appeals,that

the instant application should not be barred as a ''subsequent application

under the Texas Code Criminal Procedure, Article 11.07, Section 4,

because Relator did not become aware of the facts giving rise to the

instant application until several years later after theinitial applications.

This Court initially addresses whether the instant application is

barred as a ''Subsequent application'', under Section 4, or whether it falls within an exception to such bar Section 4 provides, in relevant part. Page 19.

(a) If a subsequent application for writ of an initial application,

challenging the same conviction, a Court may not consider the merits of

or grant relief based on the subsequent application unless the application

contains sufficient specific facts establishing that: (1) the current claim

and issues have not and could not have been presented previously in an

original application or in a previously considered application filed under

this article because the factual or legal basis for the claim was unavailable

on the date the applicant filed the previous application.

(C) for purposes of subsection (a)(1), a factual basis of a calim is

unavailable on or before a date described by subsection (a)(1)if the

factual basis was not ascertainable through the exercise of reasonable

diligence on or before that date. Tex. Code. Criminal Procedure Article

11.07, 4.

Relator asserts that the Court's of Appeals relied upon Caughorn vs.

State, 549 S.W. 2d 196 (Tex. Cr. App. 1977), which held th~t the State's

failure to file notice of consolidation in compliance with section 3.02(b),

meant the action did not constitute a single criminal action under section

3.02. Therefore the prohibition against cumulation provided in Section 3.03

did not apply. See also Garza vs. State,687 S.W.2d 325 (Tex. Cr. App.1985);

Smith vs. State, 575 S.W.2d 41 (Tex. Cr. App. 1979).

However~ Relator would call the Court's attention to the case of

La Porte vs. State, 840 S.W. 2d 412, at 413-414 (Tex. Cr. App. 1992),

wherein the Court of Criminal Appeals found that this conclusion was

clearly erroneous, and overrule Coughorn. See La Porte vs. State, 840

S.W.2d 412, 413-415 (Tex. Cr. App.1992).

Relator cont~nds theres been a intervening change in the law.See

La Porte vs. State, 840 S.W.2d 412,413-415 (Tex. Cr. App. 1992).

A sentence not authorized by law is void. Heath vs. State,817 S.W. Page 20. 2d 335 (Tex. Cr. App. 1991); See also Wilson vs. State,677 S.W.2d 518

(Tex. Cr. App. 1994). A defect which renders a sentence void may be raised

at any time. Ex Parte MciVer,586 S.W.2d 851,854 (Tex. Cr. App. 1979);

Ex Parte Shields, 550 S.W.2d 670, 675 (Tex. Cr. App. 1977).

Relator has always complained to this Court that Relator had a Plea

bargain agreement for two (2) four (4) year sentences that would run

concurrently, and in which would be suspended and probated. Relator raised

the claim of the unkept plea bargain by Pro Se Brief on direct Appeal.

Hhich was never considered on Appeal due to the Court of Criminal Appeals

setting asside the cumulation order and deleting it as ineffective. However,

on rehearing by the State it was restacked and Relator has did the whole

sentences as stacked and Relator has suffered the full prejudicial harm by

this cumulation order on rehearing. See Gordon vs. State, 575 S.W.2d 529,

at 534-535 (Tex. Cr. App. 1979). Relator therefore concludes that the

correct thing for this Court to rule is that Relator is entitled to relief

pursuant to the cases of La Porte vs. State, 840 S.W.2d 412 (Tex. Cr.App.

1992), and Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993), and Ex Parte

McJunkins, 954 S.W.2d 39, 39~43 (Tex. Cr. App. 1997).

Relator contends that he should be heard on these matters and Relator's

convictions in cause number 10085 and 10238W should be found in error and

grant Relator reversal of these convictions and set them for retrial.

Relator would also contend that this Court of Criminal Appeals should

also set asside Relator's sentence in cause number 22778 as a void

conviction may not be used to enhance an individual's sentence under the

Texas Statute. Burgett vs. State of Texas, 389 U.S.109, 112-13, 88 S.Ct. 258,

260·-61,19 L.Ed. 2d 319 (1967). See also Martinez vs. Estelle,612 F.2d 173,

175 (5th Cir 1980), as Relator also claims that Relator's Counsel Larry M.

Thompson at the 1980 trial was ineffective because he failed to investigate the validity of Relator's 1977 convictions, and that he wrongly advised Page 21.

Relator to plea true to the enhancement counts of cause number 10085 and

10238W without explaining to Relator what the plea .of true intended and

it's consequence and failed to investigate the void convictions and he

allowed Relator to be enhanced by the prosecutor whom used the 1977

convictions for enhancement when he should have known that they were

void convictions. See Cook vs. Lynaugh,821 F.2d 1072 (5th Cir. 1987); See

also La Porte vs. State, 840 S.W.2d 412 (Tex. Cr. App. 1992).

And lastly, Relator's sentence in cause number 13~472, should also

be reversed for resentence, as Relator was wrongly enhanced by cause

number's 10085 and 10238W as they are void convictions pursuant to La Porte

vs. State,840 S.W. 2d 412 (Tex. Cr. App. 1992), and Ex Parte Sims,868 S.W.

2d 803 (Tex. Cr. App. 1993), and Ex Parte McJunkins,954 S.W. 2d 39,39-43

(Tex. Cr. App.1997); See also Martinez vs. Estelle,612 F.2d 173,175 (5th

Cir. 1980); See also Spencer vs. Texas,385 U.S.554~ 87 S.Ct. 648,17 L.Ed.

2d 606 (1967).

In Ex Patte Stuart, 653 S.W. 2d 13, the defendant challenged

conviction, and the prior convictions used to enhance it, through

numberous applications for writ of habeas corpus Id. At one point,we

cited Stuart for abuse of the writ process Id. Seven years after his

conviction, Stuart, again sought habeas relief challenging the use of

the prior conviction to enhance his sentences. Id. at 14. We found

that Stuart's claims had merit in light of changes in the law following

our affirmance of his conviction. Id. We then held that under Cooper vs.

State, 631 S.W.2d 508 (Tex. Cr. App. 1982), and Ex Parte Augusta, 639 S.W.

2d 481 (Tex. Cr. App. 1982), Stuart was entitled to relief retroactively.Id. 653 S.H. 2d at 14 .. 15.

Thus it is readily apperent in light of Schuessler and Stuart, that

previous litigation of the issue does not necessarily bar it's reconsideration Page 22. on habeas corpus. See Ex Parte Drake, 883 S.W.2d 213 (Tex. Cr.App.1994).

See also Ex Parte Lemke, 13 S.W.3d 791 (Tex. Cr. App. 2000).

Relator has wailed like a stuck pig for years Hhile this Court has

denied Relator an opportunity to be heard by this Court on Relator's

convictions in cause number 10085 and cause number 10238W, as being a

unkept plea bargain.

The Coprt's have performed such serious surgery on the great Hrit,as

it applies to postconviction habeas corpus proceedings.

This Court should not forget what the Supreme Court of the United

States previously pointed out in construing the habeas corpus statutes. ;'While the rhetoric celebrating habeas corpus has changed little over

the centuries. (footnrite deleted), it is neverthe less true that the functions

of the writ have undergone drastic change ... 11 (H)abeas Corpus is not a static, narrow, formalistic remedy", Jones vs.

Cunningham,371 U.S. 236, 83 S.Ct. 373,9 L. Ed. 2d 285 (1963), but one

which must retain the ability to cut through barriers of form and

procedural mazes': (Citations Omitted). The very nature of the writ demands

that it be administered essential to irisure that miscarriages of justice

within it's reach are surfaced and corrected. (Citation deleted). Thus He

have consistently rejected interpretations of the habeas corpus statutes

that would suffocate the writ in stifling formalisms or hobble its

effectiveness with the manacles of arcane and scholastic procedural

requirement". Hensley vs. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571,

36 L. Ed 2d 294 (1973).

Our habeas corpus law(s) has always been available to obtain release

of any one who is unlawfully restrained of his liberty. See also Ex Parte

Lemke,13 S.W. 3d 791 (Tex. Cr. App.2000).

Clearly the failure ~o hear the merits of Relator's Unkept Plea 11 bargain agreements would work a 11 Manifest injustice , as there is Page 23.

controlling authority in the interim that have made a contrary decision of law applicable to the disputed issues. Falcon vs. General Telephone Co,815

F.2d 317, 320 (5th Cir. 1987); See also La Porte vs. State,840 S.W.2d 412

(Tex. Cr. App.1992), and Ex Parte Sims, 868 S.W.2d 803 (Tex. Cr. App. 1993),

and Ex Parte McJunkins,954 S.W.2d 39, 39-43 (Tex. Cr. App. 1997); See also

Ex Parte Lemke, 13 S.W.3d 791 (Tex. Cr. App. 2000). Plain error was committed

which, if not noticed, would resuLt in a manifest miscarriage of jmstice

Coughlin vs. Capito Cement Co,571 F.2d 290, 297 (5th Cir. 1978); See also

Klapprutt vs. United States,335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949).

As there are no time restrictions on a lawsuit of this kind, Relator

may apply for the writ any time Relator feels the burden of multiple

convictions are more than Relator can bear.

Relator requests that this Court grant the Mandamus 1 and application

for writ of habeas corpus; order Respondent to show cause why Relator

should not be set at liberty; give a plenary hearing to determine the

facts; and order production by the State of such documentation as may be

necessary for the proper determination of this cause. Relator further

prays that after determining the facts herein, the Court order Relator

freed from further restraints upon his liberty, order cause number 10085

and cause number 10238W reversed for a new trial in each case and order

Relator's sentences in cause number's 22778 and 13,L~72 reversed for new

sentencing hearing in cause number 22778 and cause number 13,472 and order

Relator completely discharged from illegal custody of all Court's and

cause numbers and end Relator's illegal confinement from any further

custody or confinement.

:;~~ed, Robert Gordon TDCJ-ID#319173 ~·Jynne Unit 810 FM 2821 Huntsville, Texas 77349 Page 24.

I, Robert Gordon TDCJ-ID#319173, being presently incarcerated at ·the Wynne Unit of the Texas Department of Criminal Justice--Institutional Division, in Walker County, Texas, declare under penalty _of perjury that the foregoing is true and correct. Executed on this ~y of ____________ --~~· _____________________ 2015.

Robert Gordon TDCJ-ID#319173 ~-lynne Unit 810 FM 2821 Huntsville, Texas 77349 t:.X \"1.L w>- J,. t \ ....' -~; ,, . . ' Exhibit A. ART BRENDER · AJtornt7 aJ L:w · 1417 E.lgbtb Avemu Prm Worth, T= 76104

Pbon1 (817) 921-3731 ' March 2,· 1978 j i ' Mr. Robert Gordon 300 West Belkn_ap Fort Worth, TX 76102 i

Dear Mr. Gordon: l 1 f In response to your letter of J.i'ebruai:y 23, I wo'~ld ask -..............~ . ,) that you have your Attorney, Jeff Kearney, contact-me· "'"---... concerning the matter. The plea bargains in Judge .Lindsey'~ Court were, at that ·time, even though not required by law, placed in the record, and the matters to which you inquire should be a matter of record. J ·\

AB:ml ·.,

~-···''·

Exhibit A. --~ .'. '!'!'

, •. _ ,,.,,.,,,.,, ,... ,..w,~,...1

',".!'·' ·:.,_ " ·· ... ·...~. ·... ......

.··~ ..... ·····-·· ... _ ..... ~- '· . :..·

. \

\'.

' •. _·._ '

.. • . ,, .,. ...... ~·J ' . ,.. _ ...... ,.. -~-·- ... ,.,.~....-... ·•""'~u•Oo•':,..,......;.. 'f '

Exhibit B lof3 ·?a~es

AFFIDAVIT OF CHARLEY VALDEZ

.t

STATE OF TEXAS

COUNTY OF \V ALKER

BE!~ORE ME, the undersigned, a Notary Public in and for the State of Texas, on this dny

personally appeared Charley Valdez, who, after being duly sworn, deposes as follows:

"My name is Charley Valdez. I am over tv;enty-·one years of age, of sound mind; otpabie

of making this affidavit; and personally acquainted with the facts herein stated. I am employed as Program Specialist III for the Classification and Records Division

("CRD") of the Texas Department of Criminal Justice-Corrections Institutions Division, and my

office is located in Huntsville, Texas.· I have reviewed time records kept by the CRD regarding

offender Robert Gordon, TDCJ # 319173. CRD maintains these records in the regular course of i i business of every offender confined; and it was the regular course of business for an employee or ................

~·ev.J;:es~ntative to. TDCJ-CID with knowledge of the act, event, condition, opinion or diagnoses,

recorded to make the record or to transmit information thereof to be reasonably soon thereafter.

Based on my review of these records, the following table contains the current sentep,;e

information for Gordon.

Exhibit B 1 of 3 Pages

"'" / G'l)rdon, Robert '1'DCJ# 319173 Exhibit B 2 of 3 Pages Pagt 1 ·-··-- ----··------~ ~ -.:)ff~eses --r Coun!.J' T Cause Number Sentence ~c;:;ce--Senlence Begin \ Projected Maximum I j ~~~:!ory I i l

I e Date Expiration

i Date ~---- ------ I - Daie i ! Credit C:u-d r---------·-+ I Abu~.e Tarrant 22778 20~~s__ 4-6-1981 6-26-1980 9-25-2037 !' 1I -22-2097c _ t Agw.-u~r~ted I.A.s.>ault WfDW Walker 13,472 99-years 5-20-1986 Consecutive 9-25.2037 11-22-2097 Consecutive to L _____ C'.a use#22 778 -- Off.:~ndcr Gordon was received into TDCJ custody on 5-11-1981 from Tarrant County on a 20-year sentence. Offender Gordon is charged with Credit Card Abuse by the Number Four District Court under czuse numb~;;r 22778. Offender Gordon is charged for an offense occurring on 6-23-1980, with sentencing on 4-6-1981, anrl to begin on 6-26-1980.

\i\lhik in TDCJ confined at the TDCJ-Ellis Unit in Walker County, offender committed the offense of Aggravated Assault with A Deadly Weapon. Offender was sentenced to an additional 99-year sentence by , ~­ the 12111 Judicial District Court under cause number 13,472. Offender Gordon is charged for an offense ' occurring on 10-16-1984, with sentencing on 5,..20-1986, and withjail credit allowed from 10-16-1984. This changed the net sentence from 20-years, to 119-years. The offender under cause number 13,472 is eligible for mandatory supervision, but is flat calculated for parole eligibility. Offender has a current parole review date of 11/2.009.

On 10-16-2001 pre-sentence jail credit.s of 5~1-days was applied on cause number 13,472. The cumulative ~e:1t::::~-;;~ bt:gin date was changed from 6-26-1980 to 11-23-1978 due to the 581-days of cumulativ~ jail :::redits pursuant to Ex parte Bynum, 772 S.W. 2d 113 (Tex. Crim. App. 1989).

Prior to 1987, sentences were aggregated according to statute. Article 6181-l, V.T.C.S., Sec,l(4) Defining "term" provided: ''\\'hen two or more sentences are to be served consecutively and not concurrently, the aggregate of the sentences shall be considered the term for purposes of this Article." The statut~ry demarcation for purposes of consecutive computation was discussed by the Court of Criminal Appeals in Ex. parte Hannington, 832 S.W. 2d 355 (Tex.Crini. App. 1992).

This is a record of offender's time earning status's to show promotion and demotion dates: ( iI ; ' Nt1TE: Effective April 1, 1995, the practice of backdating was discontinued per Board of f / .,-c_orr_e_ct_io_~ Polic::,!y~:____________________....:....._____________

\ 11 23 1978 TO 06 13 ' ;:) os 1n2 TO os 22 1982 RATE: S4 I 06 14 1982 TO 10 04 1982 R,ATE: L2 1983 RATE: L3 i os 23 1983TO 01 o9 1983 RATE: L2 I ·.. ~~{ l 07 10 1983 TO 10 25 : O'i 11 I984 TOD5 31 1983 RATE: S4 11026 1983 TO 05 10 1984 RATE: L2 1987 RATE: L3 I 06 01 1987 TO 09 29 1987 RATE: L3 B I 09 30 t987 TO 12 21 ! 03 23 198& TO 12 15 1987 RATE: L2 B 112 22 1987 TO 03 22 1988 RATE: 84 B 198S RATE: L2 B 11216 1988 TO 07 24 1989 RATE: L3 B . I 07 2S 1989 TO 10 24 1989 RATE: L2 B 110 25 1989 TO 05 10 1990 RATE: S4 B --l 05 ll 1'!90 TO 08 06 1990 RATE: L2 B I 08 071990 'FO 01 21 1991 RATE: L3 B .., _: 01 22 l99t TO 04 22 1991 RATE: L2 B I 04 23 1991 TO 08 16 1991 RATE: Ll B J \\ ....t. , 08 17 1991 TO 09 30 2001 RATE: L3 B 110 01 2001 TO 10 09 2001 RATE: L2 B \ I 0 I 0 2DO 1 TO 06 03 2004 RATE: L3 B I 06 04 2004 TO 02 10 2005 RATE: L2 B . \ I J 02 I 1 20t)5 TO 09 28 2006 RATE: L3 B 109 29 2006 TO 03 28 2001 RATE: Ll-B , (;} 29 2t)07 TO RATE: S4 B ! . TO R.>\TE: i -----· ----- ---- -- 1 i / L---- . / !

Exhibit B 2 of 3 Pages 1 '• \ ....... ··.--. Gordnlli., :\ld:•c:d -rnc.m 319173 Exhibit B 3 of 3 Pages

OHender Gordon completed his GED on 6-1 ~ 19S7 and was awarded 60-days of good time credit on <.;.. '3--1987. OtTender has a total of30-years, 1-month, and 23-day:> of flat time served, 12-years, 2-months, ;1.nd :+--days of good time, and 1-month, and 30-: 1ays of l;C!'tUS time credit~.

r -~ in administrative segregation shall be awarded only the amount of good conduct time {;;~·;;c.Luiers credit based ou their time-earning status, for as long as they remain assigned to administrative segn~gation. status. These offenders shall not be awa1·ded the "diligent participation" good conduct i·fme C.!redit.

Pursuant to TEX. Gov'T. CODE § 501.0081, this office received a time dispute resolution forms frcm of'fender on 7--12-2001, a:nd responded to the offender on 10-16-2001. This office responded to the offt>nder fbM tbere wa.c; no error in his cun·ent time calculations. The offender was further advised that if he was dis:;:~t~di.ed with ~his response that he should contact State Counsel for Offenders :tor further assistan6e.

. '

CHARLEYV · Z ~- Program Specialist ill Classification and Records Texas Department of Criminal Justice Corrections Institutions Division

SUBSCRIBED AND SWORN TO before me, the said Notary Public on this the 15th day of January, 2009, to certify which witness my hand and seal of office.

\ I y :v ..

Notary Public In ;md For The State of Texas / I / // I 2 / Exhibit B 3 of 3 Pages l

. . . ._ _ \. ! ~--- ··,,_ \ "- ' c--~~'."'L '""' Exhibit C 1 of 2 Pages. ~-

EX PARTE ROBERT GORDON Habeas Corpus Application WRIT NO. 10,271 From TARRANT County

0 R D E R

This is an application for a writ of habeas corpus which was

submitted to this Court by th~ trial court pursuant to the provi-

sions of Art. 11.07, V.A.C.C.P. Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App. 1967).

In 1977, the applicant was convicted of the offenses of

unauthorized use of a motor vehicle and theft in Tarrant County

cause numbers 10085 and 10238W. Punishment was assessed at impri-.

sonment for four years in each case. These convictions were

affirmed on direct appeal. Gordon v. State, 575 S.W.2d 529

(Tex.Cr.App. 1978). In 1981, the applicant was convicted of the

offense of.credit card abuse in Tarrant County cause number 22778. Punishment, enhanced by proof of the prior conviction for

unauthorized of a motor vehicle, was assessed at imprisonmeni for 20 years. This conviction was affirmed on direct appeal. Gordon

v. State, 638 S.W.2d 654 (Tex.App.--Ft. Worth, 1983).

In his present application, the applicant contends that there

was a bona fide doubt as to his competence to stand trial in 1977, as well as to his sanity at the time of those offenses. This

application, however, presents a more serious question. This Court's records reflect that, in addition to his direct appeals,

the applicant has filed five previous applications challenging

one or more of these convictions.

It is obvious from the record that the applicant is con-

tinuing to raise issues which have been presented and rejected or

should have been presented on direct appeal and in his prior writs.

'.!'~r.::_ •·:.r-~t. of hab.':as corpu~ .J? tooQ .. ~§_ed.ous . - - .. and important ·--.,.:_. __________ ........ ---": ~---·.......!-. ~---- • a matteor to . ---. . - .

be lightly and easily abused. See Ex parte Carr, 511 S.W.2d 523 0

(Tex.Cr.App. 1977); S.:tnders v. United· States, 373 •u.s. 1° (1963).

Seeoalsoo Smith v. Estelle, 562 F~2d 1006 (5th Cir. 1977}; McDonald

v. Estelle, 590 F.2d 153 (5th Cir. 1979}; Potts v. Zant, 638 F.2d ·..I ·, 727 (5~ Cir. 1981); Hansen v. Estelle, 641 F.2d 250 (Sth Cir. 1981)

(delayed applications).

Exhibit C 1 of 2 Pages . .... , __ Exhibit C 2 of'2 P?ges ~

EX PARTE GORDON (P;;;.ge -2-]

We hold that the applicant's contention is not only without merit, but has been waived and abaondoned by his abuse of the writ \ of habeas corpus. Therefore, the Honorable Thomas Lowe, Clerk of the Court of Criminal Appeals, is not to accept or file the instant application for a writ of l}a,peas corpus. He is also instructed not to accept in the future any applications for writ of habeas corpus att~cking

these convictions unless the applicant has first shown that any contentions presented have not been raised previously and a showing is made that they could not have been presented in any earlier . 1/ application for habeas corpus relief.- Ex parte Dora, 548 S.W.2d 392 (Tex.Cr.App. 1977); Ex parte Bilton, 602 S.W.2d 534 (Tex.Cr. App. 1980). IT IS SO ORDERED. this the 25th day of l4ay, 1983. PER CURIAl4 En bane

1 In Ex parte Dora, supra, this Court expla~ned the duty of the trial court ~fter the entry of an abuse order as follows: Where a petitioner has been previously cited for 11

an 'abuse of the Great Writ, • the trial court should not thereafter consider the merits of any application for writ of habeas corpus filed by that petitioner. The trial court should, however, review the application and make findings that this petitioner has abused the writ in the past, thus making the review procedure of this Court more efficient. The transcript should be forwar.ded to this Court, just as in all other cases, pursuant to our automatic review jurisdi~tion. SeP Ar~. 11.07, Sec. 2 (d), supra. The wri.t· i:!"an~n;r·ipt--should, of course,. be forwaJ::ded to· this Court within fifteen days of the trial court's order. See Art. 11.07, Sec. 2(c), supra, .. p

A True CoPY At'e~t: Thomas Lo" ' . of Te'l.a~ eourt ot ay;

Exhibit C 2 of 2 Pages.

', .... · ~0!) W. ti;;.;L.i.\.:..1 1••• xL•\.~i. .l•LUU.K \.-.ii.UU:.:.~.J.L ;.._.1 . . u !..>l.JlL.i.H ... •u

'"'"i.'el':phone: _Z:.!-1- !.f}?l) 0 f~: ) IIv 1.:r;;: 8:00 l\. M. to -t :!.$0 P. ?IL 2':Ion~by ~hrough ,Frid~yE~ni bi ~ ···o 1 ~g - •• . · ' . COND.ITIONS OF _,PRO. BA-Trn:N: . .. .::::? . TILB STATE OF T:S:US 1~ CRE-ITN.t1.L DISTRICT COURT NO.:...·_,..,<_ _ __ / 1': 11 ".;· I t.:2 3t i·V VS. NO. / v - v-- 1 TARIUu\T COUNTY, TEXAS ........ ' ~- .... Jl :...L ·!'r~.' r '

' (/ .In.;~:;:ord;.:~nt.:~ with tbe auth·Jrity confc.:lTe:r! by the Adult Pz·obation and Pnrol~ Law of the State of 'l'ex~, . . ~.... / , J.l l· ~n! be-=n placcll on Prol):'.l;ion...s>n tl1 i::, ___ · .-:.~~" dav of_·___ /1ct:t..11 · ·_/_/ 19 .77 for a nerri.d of -/ -r;ILFT cj.·: , /~(c.··~?,.._;·I·ZI\/. / '-'r/CL""t;' 'V "~!...Ol..' r{ rJ.vo£,..> - - '~/,.fl ... , cl'r. /,~·'7-::1''1'/ v./- _ .. c· .t_c C ;c•b ;;.s.-) Ji,O... • -.I '.

-:re:n·.::, for th·~ offense of (_~"< 1~ 1 7>: r :_."t ,;::.t:-::.'} i./..:; .!.c ,.c 17 //1 c.;c: n,.:- V:.;-/11

·::; 1ror:orn,Jie \.,l t.r:t. /;, c~ ~,.:;,~."' -~ /.<)· -;.7; ' · '·./, . . -~ , . .-· .;_;.··;..;.··~=-/:.:.;··J._.------.• .::!. ;/,.~, · Judge, . · .;> Cr1minal Distrid Court No ...=.;..!_):=;..._.----. ·.:-.:-tt County, Texas. . 1t h t.~e ORD:::.?. of the Court thri.t you sh~l comply with the following terms ~:-:d coaditicms of Prob1Ltion: · or.mut no offt>_m;e nininst the laws of this State or nn~r other State or the Unit-ed St<~.tes; :;oid injurious or ·vicious habits; ~oid persons :t.r.cl places of disreputable or harmful ch

·e}>ort to the _td~tlt ProbCI.tion Officer of T~lTnnt'Connty, Texas, on the Clay of--},A·~_,..;...l?:~J~=·::.. _____

;'7~ -~ j-1.... ' -------------___,._, l9...L.L, ancl on the ---'-~--day of each month thereafter, during robation; . ·I

ermit the Prohntion Officer to visit you at your horne or elsewhere; iork f~it!-lfully at snitnble employ:ment :-~.;; far as possible; · .~::m::lin v.ithin the limits of T:•.rrant County, Texas, unless given pennission by the Tarrant County Adult ~bation Officer to leave therefrom; · .piYJrt :rour dependents; ·oLify the Adult Probntion Officer of Tru."Tant County, Texas, if your address or employment is changed. ·i;:hin fi-.-e d:lys from the date of change; 'I !

<: t0 nr.d though the Adult P.robation Officer of Tarrant_ County, Texas, the following: ~- -~

1'7t. . {iJ / /) {lc- "'1..-. ..,...../ . CO~"'TIT COST in the amount of S / 1• , at the,J;n.te of $,_./''---t...._.. _ _ _ per---L.. , . .l.·!.'Jt.Lr-.' . : -.,tl:'2 fi:-;;t p, \"TT"1Cnt to be made on the /,-.fl._ day of '-.\~L/-1-t t' • , 19_22, and a like payment _)':.,tile-,- ,_:;-/.... da! of each month there;{ter until ful{~ay:t:n~·!)t is made; \\ . t't,OBAriO::, FEE m the a.mount of$~ Oo on the {· f/._ day of_ _+.'-}-:.w·f.:=:.t.~r::.!-i!..,_:....- - - - . 19~. ~ncl on t~~ ~-- fl.._ .cby of each month thereafter during Probation; fJ TIESTITL"TIO:"r in the amount of $ · t the rate of $ ' - - - - per_ _ _ _ _ _ __ t!u~ fint P<'-.rment tv be made on the da.y o , 19----. and a like payment on the dny of' each month. thereaftef until full pa~·ment is made; FDiE h tlte amount of$ at the rate of$ · per :the first P"-}'ment to he made on th day of , 19----. and a like payment on the ._ _ _ _ clay of each month thereafter until full payment is made;

3t•bmit to a period of detention in the County J2.il of Tarrant County, Texas, to serve a term of irnprison- nent of clnys, to begin on the.. clay.of 19-

FILED . CRI:.tlN/.L GlSTRICT COURT No. g .TA;t;;.!.:;i COU~n. TEXAS

"L"·'.'·l•J ,,, •.~' ,_ ·~77. I.JI

\ J \., BOOR'J\~,'-\• r·•'1. . I • ., . ....,..~' . .( } /

. "'B:r .......... ~ ·- . ~ ..~~_ ........ ---·· .··----·····-----~~-~-- -..--..~.~-~::~&:S.Lt:~~~~~;.;~~~:::..:~ ·.. ~.... r:· ~:} . - . (.. ......:Z.,r.l'""--·-·"···- L/ . ~;<~~ .•)1!!it\!~~ •••

You are advised that under the la>vs of this State the Court has determined and imposed the above termC ~~ ,, conrlitions. of your Probation, an~ may at :my ti~e during the period of Probation alter or nin_

, Pro~.a~il)n O!ficer . . ~/1 \ ~·I /',··(?ti'\., . Page Exhibit D 1 Page ·r.i!;~~ :~· • ..,.,.-....

.~ o , 0 , /. \

,.,_r:...!:...L .. ;:..'+·'~:::...·.. Co:ut C~~:t;:/ }

..!·-------- · , Clerk Abel Acosta Court of Criminal Appeals of Texas P.O. B6x 12308, Capitol Station, Austin,. Texas 78711 Dear District Cletk: · Enclosed please find the Original of Relator's Writ of Mandamus ~nd ..

two copies thereof to, be filed· with the Court .for ruling· on s~me. < .:c:,-.

Please no.tify me of the filing dat~ with the Court and th~ Court* s f:L11ng number for Sl;lCh purposes. .:'. ·.,.::,' ,_

Ttu.1nk you kindly f:or .your attention and cooperation in these regards. Sincerely your,

Robert Gordon TOOJ-ID#319173 Wynne Unit . 810 FM. 2821· Huntsville, Texas 77·349 CAUS. N0 11 S . ROBERT GORDON, .........._ _ _'""'tN THE TEXAS COURT OF APPLICANT-RELATOR CRIMINAL APPEALS h. . . .,. AUSTIN, TEXAS TEXAS CQURT.OF CRIMINAL APPEALS CAUSE NO'S. 10085 AND AUSTIN, . TEXAS, . .. 10238tif ~ AND 13 •472 AND WILLIAM STEPHENS , DIRECTOR, · 22778. ·RESPONDENT'S APPLICATION FOl WRtT OF . MANDA~US . ., T() THE HONORABLE JUDGES- OF SAID COURT; NOU COMES Robert Gordon, 'Relatol', pro se in ~l)e above-style· and numb~red cause•s of ~~tion ane At>t.icle 52~1, See Mat~baei vs. 'Cla).:'k;(Sup.19&9) 1,1.<( Tex. 114~ 216 S.t-1. 856; EX f'AlTE ,BROOKS,(('~!' App 1986) 722 S.• w. 2d 140. See $lso Dalla$ Area l«.rpld bans&! vs .. Amalgamated Transit Union L

77342. \ I \. '.' Page 2. 111. Relator has exhausted all rem&dies and ~as no otbev adequa.te t'&medy at law .. The ae~ sought ~o ~ compelled is ministering not diset>eti:onar.y in nature,. Bt-axton· vs .. · Dugn,~so3 S.W~2d $18; 320 (Tex. Cr. App. 199i).. An act '' 1• . • . ... . ~ • .

';//····!:·-.•

judgment·.,. • Texas ·Dept. of CO'f'reettons V'fh Daleb!te,6-23 s.v. 2d: 20 1 24 (Tex. ,.Cr. App.o · 198:1). i·

The COurt of Criminal Appeals and each judge tbeveof shali. have, and · is here'b¥ given, the· ~t;1ett and autb

Relator-: was eonV.1c.ted in cause numbar .10085 and 10238tf ira whictl ·,,

Relator pled guilty t() the two cause's in exehange'for twc (2)· foult (4) .

year senten~es to be ran e.oao.uarrently, that W(luld-be .. · pro~ted

Judao . t.tn~sey personaliy parttci.pated in the plea b~liga.i~ing procesS-es.: Rela·tot· ·was told by Judge. Lindsey tbat is he ~eeided ·at''' any ti_rne, that. ne' . . . was JOina~ to •e,eot·· tl\a _.plea ~•sa1rl A$7t~.etnents, tb~t lela•e>~ ·.would. be allowed, .and·sha.ll be pcldittetl .to wt-.t.bdraw.,Belator*s pleas: of guilty. Howevcut. at. the p0i~t in whleh Jud$ct. Lindsey beard the revocation of pwobat,on beazoing he ~.taolted _cause· n,umbe:rr 102381i c.a top of cause numbet" 10085, tbe:reby vejf!C~laa the plea -ba~3atn ' . t\gteements. ' ~ . ' Page 3. These plea bargain agreemettts were consolidated and tried at the same time as Relator plead guilty to both offenses at the same time in ~ause

number's 10085 and 10238W. To provide evidence of this fact Relator would point 'this Court to the faet in ord$r for Judge Lindsey to be able to consolidate these cause number•s 10085 and cause number 10238W.· Relator had to waive Relatol:''s rights to indictment in which Relator did in ord~r

to recive the two cause's 10085 and 10238W to be tried together at the ·same time, so Relator could reeeive·concurrent setenees otherwise Relator would not of waived Relator's rights to be indicted first before the Court could. proceed on both cause's 10085 and 102389, as the Court lacked jurisdietion for: trial of both cause's at that time. Relator would fuetber argue to this Court that Relator is actually innocent of committing these offenses of Theft in cause number 10238W and Unauthorize Use of a Motor Veb~cle tn cause number 10085. Relator would show this Court that ·beeause of the serious eollateral consequenees arising from a conviction fo11 felony theft the doetri·ne of mootness does not prohibit this eollateral attao.~. See Ex Parte Guzman, 551 S.tV.2d 387 (Tex. Cr. App.1977); Ex Parte Burt, 499 S.W . 2d 109 (Tex Cr. App. 1973)$ Ex Parte Jentseb,510 S.W.2d 320 (Tex. Cr• App .. 1974); Ex Parte Langston, 510 s.w. 2d 603 (Tex .. Cr. App. 1974);See also Ex Part.e Hare. 561 S.W. 2d 180 (Tex. Cr. App. 1978). Relator would contend that it is well settled that a habeas corpus Application Applica.nt meets the statutory '•tn custody"'requirements when,at · the time he files the petition be is in eustody.pursuant to the conviction h~

-attacks or he is in c.ustody pursuant to another eonvictton that is positiv~~y ' and demo~strably related to· the convictions be attacks .. See Carter vs. Proo~nier, 75S F.2d 1126 (Sth Cir. 1985)1 See also Carter vs. Estelle, &77 F. 2d 427 (5th <;il'. 1982). Page 4 ..

Relator would assert that Rel$tor is confined pursuant to a May 20th 1986, conviction for aggravated assault in causa number 13,472, wherein the 12th Judicial District Court of Walker County, Texas, upon plea of not guilty and jury trial, Relator was found guilty and punishment was assessedby the jury at 99 years imprisonment and ordered to run cori'secutively with the sentence Relato~· wa$ assessed upon. conviction for: credit card abuse of 20 years imprisonment as punishment 1n.c.ause number 22778-. ThElrefore, Relator's present confinement is set at 119.years imprisonment. Punishment enhanced by proof of tbe pt'ior eonvic~ions in c.ause number 10085·and cause number 10238W in both convictions in eause numbers 22778 and in cause number 13,472, that Relator is now confined on. However, in cause number 22778, Relator plead true to the enhancement Count's ·cause number 10085 and cau.se number 10238W. Therefore q Relator. would show that Counsel at t:he 1981 trial was ineffect·ive because he failed· ... , ·~.

to inves,tigate the validity of Relator • s 1977 convictions that the prosecutor ·" ,.

' used .the 1977 convictions for enhancement eounts when he should have··known ... ~

that ·it was void. See. v.T.C .. A.Penal Code 3.03. A defendant may not by agreement t'ender legal·a punishment which is not·. otherwise authorized by law. Heath vs. State, 817 S.W.2d 335 (Tex. Cr. App• 1~91). In e.ireumsteinces sueh as R$1ator•s usentenees.shall ~t~n

eo.ncurrently': v>r.c.A.Penal Code 3.03. This language creates an·,:absolute testrietion of a. tria;!. eo·urt 's genc;!ral authority t" impose- eons.eeutive sentences. See Wilson vs. State.677 S.W.2d 518 (Te~. Cr. App. 1984). A defect which rei;lders a sentence void may be rei.sed at any time. E2e. Parte. Mc.jvert.586 S.W.2d 851,. 854 (Telt· Cr. App. 1979); Ex Parte Shields; .550 , S.W~2d 670, 675 (Tex. Cr. App.1977).

.... Cl~arly; La Porte Yfi!._~ State 11 840 s . w. 2d 412 (Tex~ Cr. App~ 1992), Leaves ·~,·

no doubt, on the State of .the law in this aa:ea of the law. Page So See also Ex Parte Sims,868 s.W.2d 803 (Tex. Cr. App. 1993). and Ex·Parte McJunkins, 954 S.W.2d 39,39-:-43 (Tex. Cr. App.1997); See also Cook vs. Lynaugh, 821 F.2d 1072 (5th Clr-. 1987~; See also Hlllvs. Lockhart,- 474 U.S. 52, 106 S.Ct. 366, 369, 88 L. Ed. 2d 203(1985). As Relato.v clearly t '

had a plea bargain for concurrent sentences in eau:~-e No's. 10085· and . 10238W. See attachment hereto· of Exhibit uA u: ~::· ineorp~rated herein for all purposes. Clearly Relator is entitled to reversal of the convictions and sentences. Relator suggests the proper stemedy in ~ause number's 10085 tlnd 10238W should be found to be void under La 1orte VSh.State, 840·S.W.2d 412 (Tex. Cr. App. 1992); and Ex Parte Sims 868 S .. W.2d 803 (Tex. Cr. App. 1993); And '· Ex Par'te McJunkins, 954 S .W.2d 39-43 (Tex. Cr. App. 1997), and remand · back to ·the trial Court for new trial, relying on these above described Court deeis.ions and in cause number'"s .22778 and 13,472 . these s-entence's should be reversed for resentenee without the void c.onvic:.t.ions 10085 and 10238W being used for enhancement Counts purposes. As a matter of the law. See Burgett vs •. State of Te,;as,389 U.S. 109, 112-13, 88 S .. Ct. 258, 260-61, 19 t.. Ed. 2d 319 (1967); Zales vs. Henderson, 433 F.2d 20 (.5th Gir~ 1970): Martinez vs. Estelle,612 F.2d 173 (Sth Cir. 1980); tarter vs. Estelle, 677 F.2d 427 (Sth Gir. 1982); See also Cartel!' vs. Procunier1S5 F.2d 1226 {5th. Cir. 1985); Cook vsh Lxnaush,821 F.2d 1072 (Stn. Cir: .. 1987). v. THRESHOLD QUENTIONS Several preliminaty issues will be raised whieb must be considered before the issue$ are revte\ted on there me~its; tbt.s bas the effect of making thie case ~oll'e complex than the issues of complaints "'U~kept Plea Bargain agreements and void stacking of the sentences-in cause numbe1; 10085 and 10238t-1'\ which cl'umged Relator's punishment from a total of four (4) years maximum to a eight (8) year maximum. prison sentence. See

t .'I'·~ Page 6. Attachment hereto of Exhibit na~~ 1 of 3 pages· in·corporated herein for all purposes. Relator did the whole eight (S).yeat:s t~;~aximum sentence~

A EXAMINATION OF THE ATTACHMENT Exhibit "B" is a ·affidavit of Charley Valdez, at page 2 at the bottom of the page le a record of Offender Robert Gordon TDCJ•ID#31917.3 time earning status's to shovr promotion and demotion dates! ·~Which shows Relator was between 11•23- 1978 to 06~13•1982 a 54 Trusty Line Class~' S4 Status earns 30 days for every 30 days done and earns additionally another 30 days good time. A total of 60 days for time earning status, Time line class whieb equals· all time earn for that period. Tbts chart 1n this box. also shows from tO•OS-1982 to 05•22-1983 that 'Relator was Line class 3, whieh does not earn any time of goqd time status, this time period only earns day for day time earning status, which means no good time eat!'n. the c.hart further -.shows that Relato~t was Line 2 status from 05 ... 23-1983 to 07-09·1983, this time earning status earns day for day with only io days added for good time status .. A line I Status earns every 30 days he receives 20 days good time earning status. The nan Status earns a extra 10 days for every 30 days that Relatott is Line I Status. Clearly 9 there is a chart showln& that fte,lator was continually confined between 11•23-1978 to 03-28 ..07 .. Which shows Relator discharged the original. 19?7 convictions and the 1980 comtieti~n up to tbe date and begain serving the 1994 conviction up to the date Relator is still confined under. The chart above described clearly shows Relator completed the two four (4) year sentences as stac.k by Judge Lindsey. Therefore. itelator suffer the punishment of ~be prejudicial stacking of the two four (4) year sentences and Relator has completed doing the eight (8) years sentence :i.t1 full. Tberefot:e, Relator seeks to wtthdrav Relator's pleas of guilty ln Page 1. cause number's 10085 and 10238W and be able to plea again; Anew to not gtiilty io a~c.curclance to ~he prejudleial P~:Jnishment of the· Eight years that Relatow had to do, in violation of Re1ator 0 s oa:iginal plea bargain agreements of the (2) four (4) yea~· c.oneurre~t sent.eneing. La P.otte vs. State~,- ·840 ·S-.\f.2d 412 (Tex. Gr. App. 1992); and Ex Parte Sims,.868 s.w .. 2d 803 (Tex~ Cr. App .. l993); And Ex Pawte t4cJunktns_,954 .s ..t:J .. 2d .~l9•43

(Tex •. C1r.·. App. 1997) ..

Relator was cited fott abuse of thta wt-it pi'~Qcess puzrsuant to an order of the Court of Criminal Appeals,~.'.;... -~: t4ay 2~tJa,1983 .. Said Orde~ is attaohed as. Exhtb)it ''C'~, ineorrp.orate4 herein for ali pu~pose~. Rela.tor states that; as set out in RelatoJ! 9 S original Appli~ation for habeas corpus, RelatoJ: has not. been provided Wit~ the opportupity' to e~U.eng~ the eat~lier convictions ln number's 1:0085 and 10238\l, on the . ;~ -,..

issues now present.ed due to the faot tltat the only issue· on Relator's prior . Appeal proffered by Counsel Jeffrey A. Kear11ey was the issue of the Judge's authority to cllllinlulate Relator• a sentenc.es. In thls Appeal Counsel Jeffrey A. Kearney received a prot.ta'ble deoision by the Court of (.il!i;minal Appeals· in it ~~s opinion by the Court OJ!'4e~ring tbe cumulation lieeltals in tbe l . .

sentences in ~ause tmmbet" 1()238W\at:e ineffective and ate tbetefore orde~ed deleted therefrom, under the ·Goua:t•·s deeision in Ex, Parte 'Rf!lnolds,462 s~w. 2d 605 (Tex .. Cr •. ApJh 1910). However, the ~u't dtan•t. stop th~re,.lt went on to. state; .,Finally, we have l.!ev.iewed the Appellant* a pro \se allegations and we· find them to be without IDertt•: Se& Go'tdon vs. S§B!9 575 S.Wo2d 529, at 534 (Tex. Cr •. App~ 1978). Relato~t- ral$~d in ,Relator's h4;·J Se ailegation' the comricti~n snq sentE!nces. ti'ere based on i••untte_pt Plea Bat:gain Agreements .... ,'··

Relator would fu:r;ther show the Gout:t that Relator ftled two (2) writ•s of habeas corpus wh1'1e Appeal was still pending. before thtl Cou17~ of

'!·./···/ Page 8. Criminal Appeals, which Judge Lindsey O:t'de~ed Relatorts two (2) tn-its of habeas corpus to be forwarded to the Cou11t of Criminal Appeals to be treated as pro se brief's on Appeal, ·pew order of the Judge Lindsey. Upon review of these Pro Se Brlef•s on Appeal• because the Court of Criminal Appeals entered into a judgment in Relator's behalf by ottdertng the cumulation of cause numbe~ 10238\1 as being ineffe4:.ttva and therefore ordered d~leted therefrom. and ordering the reformation of the sentences of cause number's 10085 and 1023SW to be t"an concurrently. See Gordon vs. State,575 S.W.2d 529, at 534 (Tex. App. 1978). Relator's pr:o se brief's were never reached on there merits beeause the Court of Appeals was ordering the reformation of the stacking order of the'Clourt Judge t.i.ndsey. See Gordon vs. State. 575 S.W •. 2d 529, at S34 (Tex. Cr. App. 1978), and thts i.s why tb_e Court found Relator•·s "Unkept plea bargain agreement' c.lalms in the pro se brief•s to be ~dtnout merit, because the Court off Criminal Appeals was li'eforming the stacking of the sentencesn. So, Relatol' didn•t suffer no prejudice, as Relator was.having Relato~r•s

original plea bargain agreement enforced by the Court of Criminal Appeals ordering the reformation of the sentences of cause number 1008S and 10238\~ to be ran concurren~'lY· Gordon vs. State,575 S.Y.2d 529, at 534 (Tex. Cr. App. 1978). However, the State filed a Motion for Rehearing within tbe Texas C9urt of Criminal Appeals under its rules, ordered a rehearing, on the $tate's filed Motion. for Rel'\ea:r:lng. The Rehearing was granted, and that part of the original opinion deelarini the eumulation order invalid and reforming the sentence is set aside and the judgment including the cumulation orders are now affirmed. See Gordon vs. State, 57S S.Y.2d 529

'····1·. at 534 .. 535 (Tex. c,. App. 1.979). Page g·.

Relator.has di~ the (ull sentenees as staeked and has fully completed the sentences as stacked due to the Co1.1rt of Criminal Appeals opinion and decision. See Gordon· vs. State,S75 s.W.2d 529, at 534·535 (Tex. Cr. App. · 1:979). So, Relator has suffered the prejud1eial ha;m of the Court of Crtminal Appeals opinion and deei.sion Qn rehearing. See also Exhibit "B"; the affidavit 'of Valdez. Relator would further point out to the Court that on direct Appeal Counsel J(;!ffrey A. l

received a favorable decision on Appeal by the unstacking order.. See Gordon ~s .• State, 575 S.W.2d 529, at 531 ... 534 (Tex~ Cr. App. 1978). Furthermore, the Assistant district attorney also gain advantage by his false arguments to the Coutt of Criminal Appeals by that Court eiting Relator for writ abuse in Relator • s fitcst writ.. of llabaas CQt'{>US that was . -~- • .f~ . . . considered at that time and ,"·._:;·:;·c;:~ttas been denied the ability to ever file 'another writ. of habeas corpus since the Assistant di.sttriet attorney made his fraudulent arguments that got the Court of Cri_minal Appeals ~o cite Page 11. Relator for wt"it abuse. See prior writ abuseattached b~reto as Exhib1t nett incorporated herein for all purposes. Sabsequently; the State filed a Motion for rehearing within the Texas Coul;'t of Criminal Appeals under the Rules. ordered a rehearing on tl\e State •s filed Motion for rehearing. The rehearing was grat;tted, and t.hat · pa·rt of the original opinion deel.ar,ing .the· c.uml.llati.on set aside is now E'¢Versed and the judgment including the eumulati.on order are now affirmed .. See Gordon vs. State;575 $.W.2d 529, at 534•535 (Tex .. Cr-. App. 19'19). Relator would a~rgue to the Court that the rehearing the Cou11t of Crimina-l Appeals entered into error by relyi!lg on seenoer vs. State, 503 s.-w.2d 557 (Tex. Cr. App. 1974), and .Ex Parte Crawford, 36 Tex. Cr. App. 180, 36 s . w. 92 (1896); Ex Pat:te Ma~ah. 423 s.w . 2d 916 (Tex. cr. App.1968), And,~" Pa~te Davis, 542 S~U.2d 117 (Tex. Cr. App. 1976), Relator contends that t'be trial Court erlted in cumulating the senten~es

'b$cause concurrent sentenees awe mandated by Tex •. Penal Code Ann .• 3.03 (Ve"t• non's 1974)t Section 3.03 provides: \Jben the aeeused ls found guilty.off more than one offense, arising out of the same criminal . episode prosecuted tn a single criminal action, eentenees f.or each offense for whleb he bas been founf Cvimtnal Ap~eals on rehearing erlZed in tbj• it relied on outdated eases and l·aw ... • Relato1: would show the Cou~t where a trlal Judge's cumulates and does lttct'ease punishment after reV'ccatioa, an ad4~t1onal i6lsue is presented: \t1hether an increase in punishment after: z:evo~atton violates due proc:.ess umte'" North Carolina Vs• Peatrce 0 395 U.S.711, 89 S.Ct~ 2072, 23 t..Ed. 2d 656 (1969). Cf~ Bovie 11'S• State,56S S .. W.. 2d· S4l (Tex. Cr. App. 19i8);Leehuaa vs. State,'532 S.W.2d 581 (Tex .. Cr• App. 1975). :'··-· .

Page t2. The Court of Clriminal Appeal$ additionally stated in La Pot'te vs. State, 840 S.W.2d 412 (Tex. Cr. App. ·1992) that: "An improper cumulation order is, in essence, a void sentence, and Bu()b er1ror cannot ·be waived. A defect which renders a sentene.e void may be raised at any ttlfte... T~v5 vs. · . State,818 s.w.aa 801 < a](. ··~·App. 19§!J. . . _,....

The La Porte) Court furth.er recognized that "it had vac.atad· impl!oper cumulation orde'Cs presented for the first tim~ in Postconvie·tion mtita of habeas -c.orpufll. La -Porte;Sup~a. footnote s. See Ex Parte Asbs;!t 641S.tof.2d :243 (Tex. Cr. App. 1982), end Ex Parte Vasguea, 712 s.w~ad7S4 (Tex. Cr. App. 1986) .. See also Ex Parte Siltl:St868 s.t1.2d 803 (Tex. Cr. App.1993), :·,.

Ex Parte MeJunklns.954 S.W.2d 39, 39•43 (Tex.·cr. App.t997). Relator contends ~: . . that as a matter of the law the trial Court, as well . . ) •. ~

the Court of Criminal Appeals ha_s. et"t-ed in cumulating the· sentenees. because eoncurrent sentences are mandated by Tex .• Penal Code. Ann-o 3.03 (Vernon.•a·· 1974), as a matter of law. See La Porte •s. Stete,840 s.w.ac:t· 412 (Tex. Cr. App. 1992); Ex.fal:tg·.Sims,868 s~W-.2d-803 (Tea. Ct·. App. 1993), and Ex .Pa1rte. MeJuntd.ns, 954 S. W. 2d 39, 39-43 (Tex. Ct. App • 1997) , in Which Relatot relies and is entitled to as a matteJ: of law. Relator's convictions should. be voided -and Relator ·~. .returned to the trial Court to face these ehatges again.,. ae Relatol!'• s plea bargain agreements were violated by the Cour-t'and·Relatol!' ha$ already did the sentenees* as oumulated against Relatos: in cause number•s 10085 and 10238W. Relator: has &uffered the p~ejudieial harm of the ~~~eking of the sentenc.es. Relator should be •ble to withdraw the plEiaS of. gullty, as Relat.o't wa$·told he would be allowed to do, if Judge Lindsey didn't el{cept the pleas of guilty. Relator is entitled . to relief under . Es . Parte . .

Sims, 868 S.tJ.2d 803t at 804-805 (Tex. Cr., App,.,,.t993); §x Parte 'McJUnk~9S: 1 . -~.-,

--Page 13 .. 954 So~.2d 39,39~43 (Tex. C~. App. 1997). Relator: attempted to file anothet application for writ of habeas corpus when Relator came aecross the case of. ·La Porte Ys.. Stats ~ 840 - s.t~. 2d 412 (Tex .. e~. App. 1992); and argtling to t..ha Cou1:ct th$~ theb: bas been a intet'V'ening change i.n the law which should allow Relato~ the eonside~:ation o£ anothes: ·ap:pl!.cati.on for wrt.t of habeas corpus. Nowevelt', the Court again refused_ to.· raear, and in.tertai.n the olai.m for relief that. Relator should b$ entitled to by the Couttt of C~.>imlnal Appeals. The C()U¢t should 2:'eliea that theJ:e is 110 new bal!>eas ccr.\')ue clalm whE}I\ a Applicant_ met'ely a$serts thatG·:: a previous t:ul.1ng wbieb .preeluded a met"ite dat;emination t~as in Eu:ror. There has been no final dete1'mlnat~on on.. thf:1 merits of R~latot:"' s first app1ieation for writ or fo~ that matter .th~~$.:'.

basl'l" t>J:>een any eonsiderattcn undertaken by the Couttt of Criminal Appeal& under 11.07. that bas ever been undezotalten by this Court t.n none of Relatot> 1 s '• pttlor applications in any convtc;tlone in cause numbetr • 6 10085 and l0238t~, '8t\d·· cause· number 22.778 and eauee number 13,472, ·on there merits and theare bas never been a wtt.ten s:esponse on there merits t it always na.a been on procedural grounds, sueb as no proper oath 'beins. etven to the application Which is a requ1s!te to the app11catiotl. See Code of Crimi~al Proeeduwal requisite At:'tiele 11.14 (5) or Relator had «1 dlreet Appeal pending •s another procedtaral. ground in keeping Rela.tcr 1 s applications fwm being hea21d on there me~its ln any of the abeve def.lct'ibed.causes, as it alwa;s bas been Relator"s pleacUngs we11e deficient as a matter of pl~ading 11 and denial tdthou.t a Wl!'itten deelsion. The only reasonable interpr:etati.O!l of the denials of Relator's AppliC.attons by the_)::~qx'as Court o~ ·.~7!l~1na1. Appeals ........ ...... ,.,, __ ,;~,_..._ .

is. that the Cour:t invoked prccedtuural default ana did not tt_ecide the c•ao on the merits of the Unkept plea bargain ag-reements~ as point:ed out by RelatoJT.

l "\:'."1 . • · ~ 'ir) ·~ Page 14.

ARTICLE la SECTION ll.HABEAS CORPUS 4

The writ. of habeas co~pus is a writ of ri.3ht, and shall neve~ be ·suspended. The Legislature shall onset laws to 11$ttder the remedy speedy and effeetual.o See COde C~:iminal P~oeedure Article t.oa an'd Article 11.07• Section 4. lelator woald asse~t to the Court of Criminal Appeals that in Ex Parte Torree,943 S ...U.ad 469, at 475-476 (Tex. CR. App. 1997)1 "Because tbe.direct Appeal ~ecord contained insuf.fiei.ent •"'idenee to evaluate the .ineffective 4sslstant of Counsel issue, we hold that the rejection of b1s claim on dteect appeal doe$ not ba~. re!~tis,atiog of bls .~laim on. habeas eor'PtH~. to the extent that. Applicant seeks to .gatbetr and 1ntJ:oduee addi.tioeal evidanee not contained in the dlvect .Appeal recordu. Relator: has a simila-r claim of ·rev-iew on Appeal. Relator !'aised on Appeal that the ..pleas· of guilty WGtre based on Unkept Plea ba~rgain · ,_ ... 1 ag~eements ~. No evidentiavv bearing was eve.:.: entertained by. tt\e,~' Court to allow Relato1r to deveiope the facts of tbe reC:.oxrd on Appeal. ~eiator vould point the Court to review Relatort•s tb1hibit ""~A" a letter written ·to Relator by Counsel Art Brender who represented Relatott at thtr pi'ea bargain u~dertakon by Judge Lindsey. Clearly, a review of exhibit nA'' establishes:;; by oxamlnatlon. of this. . .~ ·~ '

let tel:· that llealator bad plea barga.in sgr:eements at the time Relator enterted a plea of g'uilty which Relatot- was told by Judge Lindsey that be would -::•''

eseept the plea bar-gain agreements p~ior to excep~aoce of the plea by Judge Lindsey. ·. :.

This letter by Art 81!'endar to Be'lator shows t.bat upon Judge Lindsey adding a cumulation otder to cause number 10238\1 and ~taeki.n$ the santenc.e on top of ¢.auee num'bar lOOSSt Relatot: immediately c.om.plaine4 tc Art ~rende1ii'

of the unkept plea bargain agreements as the letter was written to Relator by Art Brender in respone.e to Relato~ 1 $ lettelt to Art Brender 4ated Page 15. I·'

" February 2! :/1978, that he responded to on March 2.,1978, in bis C'Eulponse he makes it c.lear "the vlec bargains in Judge Lindsey•s Court were, at that time,· even though not requia:ed by law-; placed in the reeottd, ·and tbe 1 matters to which you inquire should be a matter of ree.ord· ~See E18lttbit "A•• incorpo-rated be:te1n fo~ all purposes. Relator would c:.ontend Judge Lindtiley EUtcepted the plea bargato agreements at that time and assessed two probations of fou~ (4) years that were runntns eonaurrent.ly. As, lt is well established that -"here a trial judge does not order that two seatenees in two different cases shall be cumulative. the terms of 'lmpli'isonment automatically t'un concerrently. Ex Parte Reynolds,·462 S . . W.. 2d 605 (Tex .. Cr. App. 1970); See also Gordon vs Stat.e,57.S S .. W.2d 529 1 at 532 (Tex. Cr.·~;·App,._ 1978). ·"·

1bus, Relato-r argues that sine$ the judgments plae.eing Relator ott ......· probation did not indleate that the sentences were to be eum'lilated, tbe attempted cumulation after ~:evocation is lneffeetivo, as JuclgeLindsey excepted the pleas ,f. gu.llty for two concurrent sentences~ ,whteh ware suspended· and Relator was plaeed on pt:obati.on for: fout' (4) yatu:,s. Btlaf)Oe would pot11t . tbts Court to examine Exhibit tlnn attached hereto lneorporated herein fo~ all purposes. This Eabibit ••nu which instrument· is entitled ~'conditions of Prebation, irt cause number's 10085 and 10238t4, shows on May 12th, 1977, lelator was plaeed on probation for a period of Four -(4) years; for the offenses Theft of property over 200 & under $10,000 ~ < • ' ~ ' •

·cause number (1023SW) and Unauthorized Use of a Motor Vehicle Cause number (10085) by the Honorable Judge ChaJrles w. L1ftdeey. Relator tzas t'Jtd.y requ:1red to report to the probation Officer of Ta~rant County, Texas on the 6th day of June, 1977, and on the itb day ea9oh month the~teaf'tEur, dut'tng probation. ·llelatot' vas only assessed one court eotilt and one probation .fee by Judge ~J Page 16 • . Lindsey and this instrument was tin:itten by Judge Lindsey and signed by and signed by Judge Lindsey. himself. Clearly., Judge Lindsey excepted tho Plea bargain agreements .. However, Relator's punishment, upon revocation of probationt was in facti increased to eight (8) years. As f!Ueb, the trial Judge's actions in entering a eumulation order violated the p_lea bargain agreements and. 11 additionally presented 1asues int Wnether an increase in punishment· ·after revocation o~ punishment violates due process unclatt North Carolina vs. Peare.e., 395 U.S. 711, 89 S.Ct .. 2072, 23 L .. EcS. 2d 656 (1969). CF. Dovie;~ V€ih State. 56S s.w. 2d 543 (TeJt. Cr. App. ~978);Leehuga vs. State, 532 s.w. 2d S81 (Tex •. Cr.~ App. 1975). ·Jtidae Lindsay's ~evoeation hearing, he eta~ked cau$e number 1023SW on top of eause·number 10085, the~reby reje3ting the plea bargain agree(llonts, but1 he didn't allow Relator to withd.-aw Delator's pleas of guilt~"· Rel.Gtov wtll show ~his Court that JudgeLindsey didn't even have the ., right to proc.luui on cause nt.1tnber 1Q23SW at the time in t1d.s cause number~~~~.: I'/(~- 10238Wuntil 1t waa eonsolidated by Rel$tcr waiving Rele.tot<*s rights to be fil!'&t indicted by the gttand•jt.uty, pursuant to tbe plea 'bargain ag1:'eements of eoneurrent sentences of probations of four (4) years.Relator wouldn•t have waived i.ndietment by the grarrd-Ju~y unlees the two eases were · consolidated, eause numberf'ts 10085 end 10238V t.o be trried t~getbaw 11 at the same time, so Relator could receive c.oncu"tr:ent sentences. Tbe ·pleas were ,lnvoluntal!y beo.ause they wawe based on an tu3surance fl'om Judge Lindsey that be eould only as~eas punishment of two (2) Foutt (4) year sentences that be would run e.oneuw:rently· togethett l>~:obated. Qn Appeal even thouah Relator ff.l&d a Ptto Se bttief Ot;\ Apposl it was never eonsidered on its tner:l.t.s because the Court of Appeals found tn aco.ordance wttb Relatoat' e atto~tney • s bt>tef he obtain a favovab).a dec-ision in wld.$1\ t.hf.t oumul$t.1ott ad' etaclU.na o£ Relatow• s 4tenteuee in cause r.nunbew tOi3SW was found to u t.naff'ecttve and otde!:l'ed to b& ·delet$1 thetu!efatorth Thereby reforming tbe se1ntent.e$ to run eoneu1t1l$ftt1y. ~~S}ogvs. State, S7S·· S.W.2d $29• at 534 (Tete . . Cr~ App. 1978). lelatet:'s bwlett was found to be ,-t.tb&ut merlt 'becaus~ tn the abOve . . .

Gou11t • $ opintoa th$ Couttt deleted an~ 1tGf01tma4. tl\e. s.eetettees. So • a't tlta' time Rel.,.tlo~t was recetvlng the $enteooes eoaou~trently, ao Delator wasn•t gol.. t.o euffett no prejudlol•l 1\a~u-. 'So lelato11's brief went withrit the untcept plea Mt.'ftGla Glalfil 'by l~tlator evo:r betna c.oneldeJtad. . Howeve~, lt must be s:"etnembal' t.tu\t the St4lte wa~ a~attted a Mot.ioo fot:' 'ie'hurtng and title Ceut:t of Ct:tmlaal Appeals ia tt.•s or·lginal opt'nioa· · · 4e.laJ:o1ag the 0\tlDUla·,ton Ol'der la~all

R~latol' wae left wttb just flllq the fi11st babeaa corpus Appltea,ton s.n:suing unkept plea b$rgatn &fltre&meote. It must be ~em•be.red ·the State tU. $\ttle' atto~nov mislead the Court t.n his 2respone~ to the writ. bv askt.us tbl$ Goutt.tfl'» elte R$l&tor fo:r ftS.t ebuse and attgutos .to the Coul't 4'ff C-rl!llitial Appeele tnst lelatol':~ s. ela·lms had a·t1:'ea~y been heaN oa Atfe.&.l eed t!t\e.tt Cc)~tw found tbe· e1al~9. to be without: merit. and, eaklag the tou1:t tto ette: talatolf for: vrtt ·abuse; whl.tb t.bo Couvt dld, and. left Relatotr without ttelato~•s elalme of . $ unkept plea bargain ag»"eemente ever hin3 add~a0s' o• the~te met"it.tlh Relator would po•nt o~t lo §! Pa~l! 1Ptt~at;,943 s . V.24 4&9 (Te"" tr-. Page 11. App.1997), and Ex Parte Tb0ll18s,953 s.u. 2d 286 (Tex. c_.. App. 1997).tbe Court bas tnade cleat that no final dtspoeition unrelated to .tbe merits and that nevet: addttfiUHted tbe meJrlts of the gE"ounds raised bt Relator's pt:ev1ou$ Ptl'o Se brief on Appeal ott Relato~'• first application fo1: w.t-it of habeas eor:pu$ wb1eh ended ln Relator boi.ng eited for writ abuse and the Court's neve1: bea111na none of llelatov'a vrtta,. whie'h thezoe was llO

flnal disposition of Relator's initial writ app~icatton and tn relation •1tb, Tex.. Code. C~!lm. ProC':.. 11.01 Seetton 4 doe& not bmr this Cout:t f1rotn add-~esGlna the mell'f.ts of tbie instant application f,or mandamua, habeas corpus to take whatever acttcn it: deems approp1!'1ate to addwess tbe e1ai.u raised by thla Reletol' in aecowdanee to the Tex. Code. Crlm. Psroc.. Att. 11.07 3(C). These above cited eaee~ enti,led Relator to ONI Btft AT THE APPLit Tt!EY elear:ly contemplated.tbat bite would be a full one. Relator basn•t had no bite at any prev.iouoly filed 'P="o Se Brief's on Appe~l: o~ any 11.07 postconvi~t1on _, application fo~ wrltr of habeas . ecnrpue, because the ..,Ccnsrt •s ' -

denied re11ef on p~coedut:al defaulted avounds.lelatoc has ha~, ·n~ ·)>.tte at the apple. See also IK Pattte tlawbi.RSOn, 958 S.W.2d 198 (Tex. ·G~. App.1991) • . ln Relatotr•s lnit1al appli.eation fott wt"lt of babe·as cot:pUs ,all claims were not add~essed on thei~ merits, Relator meets tbe eaoeptlons to dismissal .. ..

leleto..r would also point out. to tbis Court of Cv1mittal Appeals,that the instant application should not be ba~SFed as a ~·subsequent applie.atlon under the Teaas Code Ct!'lmlnal Proo.edo•e, Arttele 11.07, Section 4, because Relatow dtd not become aware oi tbe faets alvt.na rlae to the instant appli~atlon until several ·yesl't!J latet" aftt!t: t'heinltlal applldatlon&h this Court init1at1y ad.d-cesees whett\Gr tbe instaftt application i.s . b&Ul"r:ed ea a ~~subsequent applicationt•, t.Jnder Seetiou 4, 011 whether S.t falls witbtn an exception to auc.b be~ Se()tlon 4 ptro~ldes, ln ttal

~ontains sufficient speci.fic. feots establ1Blltng tha~r (l) tlte eut't:ent cl.ait.J and iee\1es have not and eould not have;bee:o presented pc-eviously in an

. ' . ' 'r;' ct:igtnal apt>lication ot iQ.a pt"evlous1v con$~dered application .~iled under: this a'rticle ~eeause· the factual o~t legal b~si.-s. fot: the elalm ~as unava1lat>1e .' on tbe dst~ the applf.eant filed the ptevl'oJ~G aptJlieation. . . . . "\>'; ,· ' (C) ·for pur.pose5 of subseetiott (a)(1)._\a fac:.tual. basts of a. c.alim la unavei~eble on or befo1:e e date de.se.1:ibed "bY subsection (a)(1)1f' tbe factual baa.ia we$ not ascen:tabiable th11ou;h the eltterct.se of reasenable d11lgence·on or befo1:e th•t elate. Tex. Code. Cri.ml-na1 PE'CC.edure. A1:ttcle 11 .. 07, 4. Relator asserts that tbe. Gom:t • s of Al)peals ~olted upon ,Caugtlorta, vs •. State~-..,549 S.W. 2.d 196 (Te,h Cr •. A:pp. 1977), ~ld.ch held that the S'aters failure to file notice of ~on&olidat·ion ia ~oaplienc.e· with section 3.02(b),

3 . 02. theJ:efore, the pwbtbt.tleo tA;gainst cumulation provided lrt Section 3.03 did not apply •. See also Gates. vsr'" ~ta.~-,687 S .. ii1.2d :32S (Tcu;:. Cxr· .. Apth19llS)J ~it,l\ Vi'. St§l~~-~ 575 S .W. 2d 41 (Te~ .. Ct:. App .. 1979) • · Boweve~, Belato?: would eall the Cour:t•9 attentioa to the Ca$e of .~ "orte vs. Stat$·· 840 s.w. 2d 413 t at 41-3•4.14 (Tex. Cr .. App~ 1992) ~ vheve.t-n .·,'ha Coul't of Cl."tmtual Appeals found that tll..t.s coneluoton was ''t'·: ·:'_, ' . . .· ' '

el.aaP• 1992). A seutanoe not authorized tty lew l.s· "o14• ,l~tlb vt. i'tt~!~817 s.11. · . '. -:"~~. Paae·ao . 2• J3S (Te:. e~. App10 l9tl)J Sae also Wt.laon vs .. ~!!.t.!h677 S.'Q .. 2d 518 (Test. Ct:-• Al)lh 1994). A defect ·.which :renda¥'s a serat•nee veld .may be ~atsed at anu time .. Elt Par•e Moiver;S86 s.t~.2d 85tjmS4 (Tax .. Gr .. A~. , 3 .• .: _l ·vr t979).'tf .. II , ·

Sa. ·pa-c.t.e Sbieldt) • 5.50 ·S. W.. 2d ,6 70 ~· 675 (TeK·• Ct ~ App. 1 9"11) • ' ' llelator bas always eomplainod to thl.s Cour;t that lolator tuad s flea bal'ga&u agreement f

on ~eheat'lng by the S~nt.a t.t \1as !testacke4 and Relate~ fins did the t1bole· s-antenees ae .s-tacked ~nd Relator has suff.Cirt•4 the full prejudto:t;;al harm by . tld.s cumulation ordta~.; O.i,_ ,.eheat:in0• See ~ord:oJ! v~;. S,t~Sf! ~ s1.s s. w. . 2d 529,. ,·,-·,

at. 534~535 (T~Ul;o C1r-. App. 1979). ttalaeo1r -ehefefot• ooncludes that the c.o:trec.t thtna for: tb1&. Cou~t to tule ts. the.\ n.etetot: is entl•t.'led . to liellef:;•. \

'Qrsu:a.nt tt;l.,ths: eases of ' !d! PoEte vs. S~at!• &40 . s.w~2d 4'12 (tew; .. Cr::i!,~P~• . '

1992); and Ex. Pal1t.e ·st.•s;.86S S.W.2d 803 (West. Cr'~~ App. 1993) ,. an& ·1Elt' ~~rt.t MoJuntdns. 954 S~W .• 2d 39" 39•·43 (.Te,•~ Cr. App. 1997)~ 'Rela~o;t.e•n·tend$ tbat be sbc>ul4 b and. gJt.aAt ilelato~ r~ve1:sal of· th'$5$ eottvletlons ·anti set th~al ffl:r :tetlit-1..~1" Reltttoli' would also ec:nt•114 that Uti& QoUJ:t o·f Crbd.nal Appe4i!le $hould alse set a·stl.tde ltel&tor'5l Siit~Jteaee itl ·OIU$G lt'!i1'bef 2277~ •• e vo:t.d' convic-t ton may not. be u$ed t:o t~nunee an !nd1Y1idua1 's .s.nteaee under the t.oxas Statute •. ~ul:seSt vs. •t~t~ of Ttsa•& 389 u.s . .to9, 11a .. 1s. ss S~~-Ct ... 258,. 160 ...61.19 t..Ed. 2d· 319 (1967) •. Se$ •.tlS;e !!t:tiq~.~ vs . . E,st·e.,llJ~$12 F.2d 173, 175 (Sth Ctzr :1980), as Relato" also,eiaim.s tlllat ielatot"'s Gouttsel Larwy i'i¥ Thompson at th~ 19SO trial was itt'tltffec.tive beeauS$ be· ·failed to· iinvest.igate tbe veltdttY of ·tbal~AtGr:•·e 1917 eottvietioru~, and· tbat be "wtcngly advise(! ·· ... : ,, .. ~ ,,I. ' . :Page 21 ..

Relator to plea true to the enbatu:.ement counte· of causo numbe~ 10085 and 1023SW without expla·lning . . to Relatcnr whe.~. the plea of t~ue !ntended and . ~

. it's consequent:.~ and fa1led to investigate the void eonvlct1ons and he allowed . Relator to bs a:nbat'leed by the prosec.uto¥ whom used the 1977 . .::

convictions fott enhaneemeri't wbeu h~ should have kn.GWn that they. we'e ' void. eonviettons .. See Cook vs. Lxnauab.S21 F.2d 1072 (Stb ',,• ca-r. . 1987)J . See al0o t.a Porte , . vs. ·State. $40 S.W .. 2d 412 (Tex·• Cr .. · App. 1992) .. And l$Stly, aelator•s sentence ln cause numbe~ 13.472. should alao be reveJ:sed ·for- resentence, . .as Rela.tor . was ~on~&lY entuu:aced by e.~u.se ' . · number·'s 1008$ and 10238W as they are void conviction$ purauant 'o -La; :~or,te I . .

vs. State.840 s •.w. 2d ·412 _.(Ttnt .. ·cr •. App. 19~2). aod Ex.PaJ:t! s·ims·,9868 .s:.. w. 2d' 8'0.3' (Tex. Ct •. App. 1993)• and ·B:tt Pa-srte. MeJuotinat.9S4 s.w. 2d 39~;39~43. ('rex·. Cr. A:pp.t9t7)J See also Maut',tin.ez· vs" !stc!l.le"6.12 f.2d·' t'13t:1-75 (Sth Ci:r. 1980); Se~ a.l,s~ :Speneer V~t~ :texag,3S$ 1J.S.,554, 87 S.Ct .. 64.8,17 L.JOO. 2d 606 (1t61). In Ex Paf:~e. Stuart, 653 S .v. · 2d 13 '·· tbe .defendant cha.llenged _ eonvlction. and tb& prtot eoavic.t.i.ons utted to enbane~ it, ·th.r;ougb · ; ' . '

numberous ·applic-ations . fo~r . mtit of habeas C.Ot'PUS td ... At. ·oa~ polnt ,, ,we cited Stuart': ff)"" abuse of the md.t proc!ul~ss' ,Id.. Seven years ·af-tar. 'nls eonvt:et1on ~ Stuart.t again aought· habeas -seltef c.balleng~ng the., use _of. ;· the prior eonvlotion ~~3. to enhance bls senten~es. Id·.. at ·1lh W~ fouqd .

that Stua!!;t~ e1ei1ms had merit in llgbt of changes in the law ·fol.l

our affirmance of his Goavlctloth td. We then bel.d that undew:COOJ!!V vs. State, 631 s.w.2d SOfJ' (Tea~ cr .. App. 1982), and ~~ Par:te Ausus,tft 639 s· .. w•. 2d 48l_:i_(Tex .. Ce~ App. 1982), St:uart- was·-entitled ·to relief ~•-~roaettve1y.:t4· ..,

~us it ls ~rea41ly ~p})etteat in. ltabt _of Sehuesslellr and ,St,ut~tt, that previouo litigation of the issue dqes not neeess~v11y bar S.tts treeonst.deretion Page 22. on ~abeae eo~pus. See Rtt Parrte D1;rake • ·883 S. g. 2d a11 (Tea. Cr .. App.1t94) • see also BIJ ~lu:~t~, -~!!!t 13 s.w.3d 791 (Tax .. c~. ·,App. 2000). Relator b.a9 wailed ltke a stuck pi-1 for years Whit~ this Coutt has denied ttelato~ an oppot>tuntty to be hea~d by tbls Cou-rt on leletor•s eonvlc.ti.ons ln C$use numbat' 10085 •mt 4:\auae numbov 10238tl; as heine a unkept plea bal:&aln, · The Goprt • s have pewformed aucll &e'IJ'lotts sv.urae~v on tlte'' groat ~it ;as J

i.t .applies· to postconv1ction habeas eovpus t-tot.sadlnas. This Cout>t should not fos:get what thta Supweme Cou~t of ttltt United Stetespt'evtously pointed out in oonsttuing the babeae eolr!)us statutes. ~i.le the 1thetorlc~("''· calebt:atin~ babea~ eorn>us. luut Clhanged little ove~ ... the centuries. (footnote deleted). it is n~el'tb$ less tt'Ue that the functions of .t.he wt'i t have .undetgona drat tic change ••• .·. .,.(B)abeas ~rrpus l$ not a ctatic., tt&ft'ow, fo~.llsti(). S"emodyn11 .'10,11?!. vo. ~nr*ina~.af!.371 u.s. 236, 83 s.ct. 37J,9 t.. Ed. 2d 295 (19~,~.). •. but one vhieh ..must t:eta.in the abiltty flo cut tturougtVl>att!:lel1s of. form alld pwoetttb.utal •zes.,• (Citattone Omitted). The very natutt~e o~··the_ writ d&ta$ods thflt Sot be editln!ate~:ed ~9sentia1 to tnet.ut.e that m1$Ctuz~:t.aaes of just.icfa td. tb~n 1 t 's •·eac}l · •.:e ·. euurfeoed and oo.:J>eetetl ~ (Glta tlon fle1e·te4) • ~t~s we hav~ conetstently gajeoted lntcrnrp:retGttons ~~ the habeas C.Otrjus statute' that •ould suffqoote tbe writ in etif!.t.na £oin'Mltstta ov. ..~bble · !t& · E\flec•&'\l'enesliJ with the manecles of Glreane emt l!la\l\olat~ttc p~rooedu~at ~•qui~ement •• •. ~en,$lfX ve. Nunltli..p~l Cguwt. • 411 u.S 34S, 9.9 s.. Gt. 1571 • . l'

!6 Lli lid 2d 294 (1973). Ouv habeas eo1:pus law(o) has at~•yt be.~n avallsble to. obtatt'l ~e1easea of any one who ls .unlawfully ltesttwained off bt.e libe11ty. See also Ia P.ta~te ,' :.-••• . a.•:er

t.emk$.13 s.w. 3d 791 (Tex. Ct:. App.2600). etearly the failure to hea1r the meW'its of Belator•e Unkept Plea ba~&ain. aareements would. ttto1rk a t'•HanifeE~t t.njusti~e'j • ae tbete ·is- :Page 23.

eontro'lling authority in the irtterim that have made a eontrary decision of law applicable to the disputed issues. faleoti va .. General Tel$phone Cot815 . . . . I. .. ... • . . . . .

F .. 2d 317, 320 (5th Cir. 1987); See alse> La Porte vs. Stat:e,840 S.W.2d 412 (Tex. Cr .. App.1992). and Ex Parte Sims, 868\ S.W.2d 803 (Te~. Cr. Ap.p. 1993)•. ·.'

and Ex :Parte MoJunkins,954 s.W .. 2d 39, 39·43 (Tex .. Cr. App. 1997); See also _Ei Parte Lemke, 13 SM\l.3d 791 ('Iex. Cr. App. 2000). Plain error was committed which, if not notieed, would result in a manifest miscarriage of j~uttico ··. . ·· Coushlinvs. Capito Cement Co,571 F .. 2d 2~0, ~97 (5th Cit:. 1978); See also :.:_:

Klapprutt vs. United States,335 U.S •. GOt, 69 s.ct. 384, 93 L.Ed. 266 (1949). As there are no time restrictions on a lawsuit of ·-this kind, Relator may appl.y for the writ any _time Relator feels .the burden ·of s multi-ple eonvictions·are mol\'e thanRelator can bear:. 'Relator . .th~t. this Court. gratat the Mandamus. and application requests ..---·-··'· for writ.of habeas corpus; order Respondent to ahow eause why Relator should not be set at liberty; give a pl-enary bearing to determin~_the

fact·sJ and order produet.ion by the State of such documentation as may be necessary 'for the proper dete.rminetion of this cause. Relator furthe~

prays that after determining the facts he-rein • the Court ordet' Relator freed from further restraints upon his liberty, ot:der cause number 10085 and cause number 10238W reversed for a new trial in each ease and order .'

Relator•s sentences in cause number's 22778 and 13,472 reversed for s new sente~eing hearing in cause number 22778 and cause numbe~ 13;472 and order Relator completely cliseharged f11om illegal custody of all Court's and e.ause numbers and end Relator's illegal confinement from any further custody or confinement .. Page 24.

I, Robert Gordon TDCJ~ID#319173, betng presently incal'cettated at the ~1ynne Unit of the Teaas Department of· Criminal Justiee-'!"Institutional Division, in tJalket: County, Texas, declare under penalt·Y ·of perjury that is true 8Jtd correct. Exea.ut~d on tbie~y,of""'":······---- --~--------~------_.2015.

Rcfoort Gord.on TDCJ-ID#.3~'91~73

Wynne Uplt 810 FM 2821 Huntsville,, 'J:'e.:cas, 77349

:.' t:.X H.L W >- ..\- t \ . \

\ . ;f

ART BRENDER C!K.h•b-= '1:'. t Jla . "' . 'f~At:t . • ·. ~·

· Allornt"] aJ Lzw · 1417 Elgbtb Avenul' ,··' Purl Worth, Te:us 76W4

Pbonl' (817) 921·3731 ' March 2,· 1978

· Mr. Robert Gordon 300 West Belkn_ap Fort Wor,th, TX 76102

Dear Mr ~ Gordon: ·.~r{. i'~sponse to your letter of February 23, I would ask --~~-- ··'tha:f::you have your Attorney, Jeff Kearney, contact-me h concerning the matter: The plea bargains in Judge · ·.· . < \; i _Lindsey'~ Court were, at that time, even though not required by law, placed in the record, a."ld the matters \ .I ·,I . II ·· to which you inquire should be a matter of record. v J

' ·\ I \ AB:ml ;: '

. ':•-.

:

··-·.:: ..

·'

• «;... --- ~-- - ·:·'"'.

: .,··,:

'J - _.=..,..J _ _ _ _ _ _____ ------------ ---~- I ' . (

I ., ~J'* 1 1 Exhibit "B" 1 t?f 3 Pages.

~FIDAVIT OF CHARLEY VALDEZ

COUNTY OF WALKER

BEF,ORE ME, the:undersigned, a Notary Public in and for the State of Texas, on this day

personally appeared Charl~y Valdez, who, after being duly sworn, deposes as follows:

''My ila..tne is Charley Valdez. ';'I am ever twenty.. one years of age, of sound mind; capable

of making thif> affidavit; ·and personally acquainted with the fa:cts ~ere in stated...

I am employed ~s Program Specialist III for the Classification and Records Division

(''CRD") of the Texas Department of Criminal Justice-Corrections Institutions Division, and my

office is located in Huntsville, Texas.· I have reviewed time records kept by the CRD regarding

offender Rohe1·t Gordon, TDCJ # 319173. CRD maintains these records in the regular course of

business of every offender confined; and it was the regular course of business for an employee or

. repJ;"esent~:~,tive to. TDCJ-CID with knowledge of the act, event, condition, opinion or dia.g..'lose;;,

recorded to make the record or to transmit infonnation thereof to be reasonably ·soon thereafter.

Based on my review of these records, the following table contains the current senten,;e

Exhibit ns•• 1 off 3 Pages •

\..._ .

\ \ '·" \ \ \ \ /\ \( \. ··:::!'--.---·---·-"' - - - • _ l L .. • - - . r- / / .";·t ' '"-.;.,;,:_.,.~:_...i 1 ,. ~. Gordon, Robert 'I'DCJ# ·3!S17J :- m~ntbtt ' ..a·~ a o-f 3 l'aaes • 1) \ Pagr.: 2 ~-- ~;tY~~~;;s --------f · Coun:).---rc~use Number Maximiun ----1 i : ~- ·- ______ J__ l Expiration Date ' I

-- -- ! Credti Card I r-· -----i l 1 I Abuse

A gg!il ~r~ted • Tarrant 22778

I 20~;-~s... 4-6-1981 6-26-1980 9 \ l\;;,;ault W!DW W

I 99-years consecutive to 5-20-1986 Consecutive 9 \ /

L _______ ._..J._____ I I cause#Z2778 I Offo:nder Gordon was received into TDCJ custody on 5-11-1981 from Tarrant County on a 20-year ser

,, t Aggravated Assault with A Deadly Weapon. Offender was sentenced to an additional 99-year senten~e by the 12m Judicial District Court under cause number 13,472. Offender Gordon is charged for an offense h· ~. \ ...... occ.urring on 10-16-1984, with sentencing on 5-20-1986, and with jail credit allowed from 10-16-1984. This changed the net sentence from 20-years, to 119-years. The offender under cause number 13,4:72 is eligible I )- for mandatory supervision, but is flat calculated for parole eligibility. Offender has a current parole review date of 1112.009. \

On 10~16-2001 pre-sentence jail credits of 5~1-days was applied on cause number 13,472. The cumulativ~ · s~11tc::;~;; b..;:gin date was changed from 6-26-1980 to 11-23-!978 due to the 581-days of cumulativ~_jail :::redits pursuant to F.x parte Bynum, 772 S.W. 2d 113 (Tex. Crim. App. 1989). ·

Prior to 1987, sentences were aggregated according to statute. Article 6181-1, V.T.C.S., Sec,l(4) Defining / \\ \ J

"tem1" provided: "When two or more sentences are to be served consecutively and not concurrently, the aggi·egate of the sentences shall · be considered the term for purposes of this Article." The statutory · demarcation for purposes of consecutive computation was discussed by the Court of Criminal Appeals in Ex. parte Hannington, 832 S.W. 2d 355 (Tex.Crini. App. 1992). ·

This is a record of offender's time earning status's to show promotion and demotion dates: NflTE: Effective April 1, 1995, the practice of backdating was . discontinued per Board of - \ Corredion Policc·Y.~~:---'---------------_;__,------------- \r1123 1978 :ro 06l3 T982RATE: S4 I 06 14 1982 TO 10 04 1982 RATE: L2 --l l9S2 TO 05 22 1983 RATE: L3 \ ; ;) CS i 05 23 1983 TO 07 09 19.83 RATE: L2 l :Y7 10 1983 : 05 ! I 1984 TO 10 25 1983 RATE: S4 TO 05 31 1987 RATE: L3 110 26 1983 TO 05 10 1984 RATE: L2 I 06 01 1987 TO 09 29 1987 RATE: L3 B i 09 30 !987TO 12 21 \987 RATE: L2 B 112 221987 TO 03 221988 RATE: S4 B ' 03 23 !988 TO 12 15 198S RATE: L2 B 112 16 1988 TO 07 24 1989 RATE: L3 B If

. 07 25 1989 TO lO 24 1989 RATE: L2 B j10 25. 1989 TO 05 10 1990 RATE: S4 B . . 1 05 U 1990 TO 08 06 1990 RATE: L2 B I 08 07 19901\0 0121 1991 RATE: L3 B _, ': 01 22 1991 TO 04 22 1991 RATE: L2 B I 04 23 1991 TO 08 16 1991 RATE: Ll B

J \1 vt 17 1991 TO 09 30 2001 RATE: L3 B 110 01 2001 TO 10 09 2001 RATE: L2 B 10 l 0 2001 TO 06 03 2004 RATE: L3 B I 06 04 2004 TO 02 l 0 2005 RATE: L2 B . I \~2 -~ l 20t)5 TO 09 28 2006 RATE: L3 B I 09 29 2006 TO 03 28 2007 ~:fE: Ll B ; (r3_.<._9_~_.oo_7~-0--~~----RA_T_E_._s4_B_!_·_-:-__,_T-0-:_.-:-::_=r:r-~R.ip-A....,forE...,.~-=;:;-:---------­ Exhibit '"B.. Z of 3 Pages • I

1 ' \ ·.··~ (\ .:/5/ / \ . ~:;

................ / \/ --- --- ---------- - ~---------- .. ·····

Go.rden1, Rd::-cd ·rnCJ# 319173 Eir.bib1 t ••a" ---------------- 3 of 3 Pages· ~ . ,_ ·---~

~ ._ .

' CHJ:i.~nder Gordon completed his GED on 6-1 ~ 19S7 and was awarded 60-days of good time credit on I 9- '8--1987. Offender has a total of30-years, !-month, and 23~day:> of flat time served, l2-years, 2-months,

l ;rnd :i--days of good time, and 1-month, and 30-days of Lc-~"!H$ time credit;:;.

c:;!';,;u;iers in administrative segregation shall be awarded only the amount of good conduct time (~r·edit based on their time-earning status, for as long as they remain assigned to administrative sr:gre~~adon status. These offenders shall not be :twarded the "diligent participation" good conduct dme c!redit.

Pursuant to TEX. Gov'T. CODE § 501.0081, this office received a time dispute resolution forms frcm

.... ............,.

CHARLEYV · Z Program Specialist ill Classification and Records Texas Department of Criminal Justice Corrections Institutions Division

SUBSCRIBED ANJj SWORN TO before me, the said Notary Public on this the 15th day of January, 2009, to certify which witness my hand and seal of office.

Notary Public In ;md For ' The State ofTexas I i

I I I

/ /

' _.,

--~----)~. ;.~~ ... .L ,_ ~j___ _ ·..s E~bibit 1 'C" 1 of 2 Pages'; -

EX PARTE ROBERT GORDON Habeas Corpus Application WRIT NO. 10,271 From TARR~NT Co~~ty

submitted to this Court by th~ trial court pursuant to the provi-

sions of Art. 11.07, V.A.C.C.P. Ex parte Young, 418 S.W.2d 824.

(Tex.Cr.App. 1967).

In 1977, the applicant was convicted of the offenses of .,

unauthorized use of a motor vehicle and theft in .Tarrant County

cause numbers 10085 and 10238W. Punishment . r'· was assessed at impri- .

sonment for four years in each case. These convictions were affirmed on direct appeal. Gordon v. State, 575 S.W.2d 529

(Tex.cr.App. 1978). In 1981, the applicant was convicted of the

offense of.credit card abuse in Tarrant County cause number 22778.

Punishment, enhanced by proof of the prior conviction for unauthorized of ·a motor vehicle, was assessed at imprisonment for

20 years. This conviction was affirmed on direct appeal. Gordon v. State, 638 S.W.2d 654 (Tex.App.--Ft. Worth, 1983).

In his present application, the applicant contends that there

was a bona fide doubt as to his competence to stand trial in 1977, •,' as well as to hiS sanity at the time of those offenses. This application, however, presents a more serious question. This Court's records reflect that, in addition to his direct appeals,

the applicant has filed five previous applications challert'ging

It is obvious from the record that'the applicant is con-

tinuing to raise issues which have been presented and ~ejeg~ed or \

should have been presented on dir.act appeal and in his prior· writs.

>rh_~~~-"'!:P:Ai::. ~~·,:,fl(~J:~~as ·_c_q;r!2_U,S i_~ tqo .. s~_rtous ~.~d: im_Pof:~~n;t a \~atter . _to .. • ••• ~~ .... ~1 ~-; ~;·

be lightly and easily abused. See Ex parte. Carr, 51L S.~.2d 523 (Tex.Cr.App .. 1977}~ Sanders v. United· States, 373 u.s. f (1963).

See also· Smith v. Estelle, 562 F.2d 1006 (5th Cir. 1977); McDon~ld ;'{

v. Estelle, 590 F.2d 153 (5th Cir. 1979); Potts v. Zant, 638 Fi~d

727 (5~ Cir. 1981); Hansen v. Estelle, 641 F.2d 250 (5th Cir. 1981}

Exhibit "C" 1 of 2 Pa&es ..

--------~£~~·~---~----~ ."'-:.

~ •\ PARTE·GORDON [P-.::ge -2-] Exhibit ••c~• 2 of 2 Pages

We hold that the applicant's contention is not only_ without merit, but has been waived and abaondoned by his abuse of the writ of habeas corpus. Therefore, the Honorable Thomas Lowe, Clerk of the Court of Criminal Appeals, is not to accept or file the instant application for a writ of }?.$eas corpus. He is also instructed not to accept in the future any applications f6r,~rit of habeas corpus att~cking. :! "-..., "'~ 1 .>.;· these convictions. unless the applicant has first shown th~t any contentions presented have not been raised previously and a showing is made that they could not have been presented in any ea~lier 1/ . 'application. for habeas corpus relief.~ Ex parte Dora, 548 S.W.2d 392 (Tex.cr.App~ 1977); Ex parte Bilton, 602 S.W.2d 534 (Tex.Cr. ' , App. 19 80) • IT IS SO ORDERED. this .the 25th day of Hay, 1983. PER CURIAl-1 En bane

1 .In Ex .parte Dora, supra; .this Court expla.in'ed the duty of the trial court ~fter the entry of an abus~ order as follows: ·"Where a petitioner has been previously cited for 'an 'abuse of the Great Writ,' the trial court : · · should.~ot thereafter consider the merits of any application for writ of habeas corpus filed by that petitioner. The trial court should, however, review the application and make findings that this petitioner has abused the writ in the past, ·'thus making ·the· review procedure of this Court more effici~h~. The transcript should be forwarded to · ·this Court, just as in all other cases, pursuant' t:O· · ',our automatic rcvie\oJ".j'ur£:sdit:-tion.,. SI?P Arr.• 11-.07, :: ·. .,,.L·,, ..·;""''"'7'>'~··l-'.·, '·se~c ~-- Z'(~tr)<';~~~~s

4 _7._ _ ._ -- . ". . r -------------~·-· ·- ~~.:..--...:..z-~--------~---.,.....·'·...__,_,r-, .. 1·. ., . , 2lll.l w. t;;;.;Li\.:V.. .~1·'-~l .i•LUU.t'~ U\.UJ.J:~~ ... L .;. .•~ ... _.<:. !.Jl.JlL.i.JlL•v. E~bibit ''D~~1 "'i'et~phpne: .B0-1-!.f101) Off. _)Ih> 1.~r;;: 8:00 A. I~L to -!:!30 P . .JL .:.Ioncby ~hrough Frid<•Y . . ><· Page ~ .. . . . . . : . . _· ~\._

CONDITIONS OF PROB.c-\·Tin:t~T: ~ THE STATE OF TEXAS ' 1~ Cf!BITN.:\L DISTRICT COURT NO..;.;· _3. __· ____ vs. NO. / / v~; '-/} v.P---;-1 Tl\.lU!.-\.1\T COUNTY. TEXAs·

)/)(it..: (/ In .;~:;:ord;'l.nc~ with the nuth·Jrity confc:tTe:r! by the Adult P1·obation and Parol~ Law of the Stat'c 6f 'l'exa3~ .. . / ·"> ; .....~ . • . '7'1.-J /;, '77 . . ' .. :J /l~'1.\'e be~n plitcc11 on 1'1.·ohr'..t.io~n th b._. · .-::..~- (lew of___ · ·_/_~ /.~ .. , 19L....._, for n. perlcd of. _. . . ·- ~_:~--~.S::"~.'.". . / ':' £iFr "" ·: ;"5/i.' ,. ·~-., (-;·~·~ , y {.'r-"C .<:.:/ ",;.!..oc: f L•·VtJ c:·~ ~/I.}, c(;c- _c / d:?- :3 .!'·~"/.. ·r- .. ye;J.~o!':-tl'Y:i 'offehse of l~"''/.J.P 7/·.'r ::"r ';.:.t;:.-'} L.J.J [ c:.;= ,-9 . .i:/1c n,.~ V:;d, t.•t, J'!.-) · c·.t-c (; t;~ Hor:~rnble c~>·;_ ,d::!..L_/.z/ :;;:;r:.;_?::...:<:..::·!~=..:'":=;.·-{'---,,----, Judge, Crimin~·il Dish-kt Court... No...=~=--·____, :,/~ .:-r:-.:1 t Cotr;J.ty, Texas. . lt i~ t.~e ORD.:I~. of the Court th_r1,;;e aiainst the laws of this State or any· other State or the Unit~d StC~.tes; A ·;:>id inj urions or vicious habits; A \'oid persons and places of disreputable or harmful ch2.r.acter; ..,-., . . .

·.!':e_port to the Ad~llt ProbCl.tion Ofiicer of T~!Tnnt·county, Texas, on the ,.,~ · II~ · h - - - - - - - - - - - - - - - - , ..• HLL.L., nncl on the --=:___ _day of each month thereafter, during Pro:;ation; ·I

Permit the Probation Officer to visit you at your home or elsewhere; 'I

Work fnit!lft:lly at .suitable employment :\:5 far as possible; · P.r:main v.ithin the limits of T:~rrant County, Texas, unless given pennission by the Tarrant County_.Adult ~bation Officer to leave therefrom; . · pport yom dependent:3; · .\"oLify tr.e Ad~lt Prob~tion Officer of TruTant Cormty, Texas, if your address or employment is chang~d, ';',ii:hin fin'! c~ys from the elate of change; 'I !

!'<:.to nr.d tr:rough the Adult P1·obation Officer of. TaiTant County, Texas, the following: --- ,._ . .~ ' . ,. p . i. CO~"RT COST in the amount of S ?'t~ {:tJ , at the,J;n.te of$ CJCi /!1.. :per /7/f../.'J-z:r,t- t};-e fi:-st P< \'TI"Cnt to be made on the ;,.. fl..... day o'f \..\.~~L"-'1...:..-?u·L...:;.~'..:'·~----· 19...ZZ, and a like payment r.)·11 tile _ - /-;.._day of each month th~rea,rter until ful{~a}'nle!;t is made; ('\ M~OB..i.TIO::; FEE in tha ~:m~ount of S I(,·· Oo on the {· f/..__ day of_ _+.-'-.}-:w·f."-:::::2='!~-"--·:....-~-_, 19~, ,._ ::tncl on t!-:-:: f:, fl" .d

Submit to a period of detentio!'l in the County Jail of Ta-rrant County, Te;-:as, to serve 2. term of imprlson- .ment of clnys, to begin on the. clay.o 19-

FlLi:.D . CRJ:.UNA:.. ~!STRICT COURT No. ;g. ·· ..... .TAR~~.:ii COU:qlf. TEXAS

"L"·V·lo ~c;7 · ·' '- -:. < : ,.,,.~, ·~- "· •· · ~-.... ~ '~'' '""j~;~~~?c~&ifi!I'N;, ~c";'~,,.. .. :c '"· ,. 4.-. - ~---~· -~ 015! ~ r LEfll_~;i.·;· ·. ···~.;...:-=·~-=·,...-_....- . ,._,.,:'. -r;;¥-_-·-.'..',...,. """~· Bt ..........(:-----· . .. You are advised that under the la,vs of this State, the Courl.hns determined and imposed the above term~;- -. .d conditions or your Probation, and may nt any time during the period of Probation alter or modifY them:--\ 1 1e Court also has the authority, at any time during the period of Prob~tion, to Re\'oke your Probation for ap.Y ::>!o.tion of the. conditions of your Probation set out abovl?'~ The Court h~ placed you on Probation, believing that i-f-you sin:c~rel_Y ~"t~ ~~.;...~n,c;l•.-}i:!?e Yn · eJ1J[. >ns of your Probation, yotu- attitude and conduct will improve to the; ·en· nf'"~7theP\iBHC' ~~:o"~self.""- . . . #/ ;'~·/~ ///;. -'II -ll/ ._. . ~.-1 r!fl;· ,. ' ....'. I. ; ,. . /This day, a cop:·• of the conditions of Probation was hanrled to me by the Clerk ~His Court. ~ &-?,·~. de:.~~-.:?:~- ":7 .· Probationer

Exhibit "D'' 1 Page • • ·' ·~'!' CAUSE N0'S ROBERT GORDON, --------~IN THE TEXAS COURT OF APPLICANT-RELATOR CRIMINAL APPEALS vs. AUSTIN. TEXAS TEXAS COURT OF CRIMINAL.APPEALS CAUSE NO'S. 10085 AND AUSTIN, TEXAS? 10238W, AND 13,472 AND WILLIAM STEPH~NS, DIRECTOR. 22 7-7 8. RESPONDENT's' APPLICATION FOR vJRIT OF MANDAMUS. TO THE HONORABLE JUDGES OF SAID COURT; NOW COMES.R0bert Gordon, Relator, pro se in the above-style and numbered cause's of action and files this original Application for writ of Mandamus pursuant to Texas Constitution ·Article 5, Subsection 1 ~C. See also Texas Constitution Art.icle 5, Section 3. This authority is also found in Article 4.04 (1) of the Code of Criminal Procedure, and Texas Rule Appellate Procedure Article 52.1, ,See Matthaei vs. Clark,(Sup.1969) (~·

110 Tex. 114, 216 S.W. 856; EX PARTE_BROOKS,((r App 1986) 722 S.W. 2d 140 . . ·'

See also Dallas Area Rapid Transit vs. Amalgamated Trarisit Uriion Local No. 1338 (Sup 2008) 273 S.W. 3d 659, Certiorari denied 129 S.Ct. 2767 1 174 L.Ed.2d 284. See also Martin vs. Hamlin,---25 S.W. 3d 718 (Tex. Cr. App. 2000);See also State Ex rel. Healey vs. McMeans,--884 S.W. 2d 772 (Tex. Cr. App. 1994); EX PARTE Rodriguez vs. Court of Criminal Appeals, 980 S.W.2d 475 (Tex. CR.App. 1998). I. RELATOR; Robert Gordon TDCJ-ID#319173 is an offender incarcerated in the Texas Department of Criminal Justice.--Institutional Division and is appea:;:· .. ing pro se, .who can be located at the Hynne Unit, 810 FM 2821, Huntsville, Texas 77349. II. P.ESPOHDENT: ~espondent Texas Court of Criminal Appeals, P.O.Box 12308,tapitol Station, Austin, Texas 78711. Respondent William Stephens Director P.O.Box 99~ Huntsville, Texas 77342. ·'

/

···";.:~-- . : Page L..

III. Relator has exhausted all remedies and has no other adequate remedy

The act sought to be compelled is ministering not discretionary in

nature. Braxton vs. Dun~.··803 S.l:7.2d 318 7 320 (Tex. Cr. App. 1991). An act

is ministerial ' 1when the lav1 clearly spells out the duty· to be performed ...

with such certainty that nothing is left to the exercise of discretion or

(Tex. Cr. App. 1981).

The Court of Criminal Appeals and each iudge thereof shall have~ and

is hereby given; the power and authority to grant and issue the issuance

of writ of habeas: and in criminal matters~ the writs 6f Mandamus,

Procedendo: Prohibition, and Certiorari. The Court and each Judge thereof

have ; and is hereby given, the power and authority to grant and issue aad

cause the issuance of such other writs as may be necessary to protect its

jurisdiction or enforce its judgments. Texas Constitution Article 5;

Subsection C. IV, HISTORY OF THE STATE'S CASE AND IN CUSTODY REQUIREMENT

Relator was convicted in cause number 10085 and 10238W in which

Relator plprl. euil ty to the two cause's in exchange for two ( 2) . f om:- ( 4)

year sentenceR to be rAn concurrently, that would be probated.

Jurl.gp Lindsey personally pArticipated in the plea bargaining processes.

Relator was told by Judge Lindsey that is he decided at any timej thRt he

was going to ~ejAct the plea bargain agreements, that Relator would he a]lowed, Rnd shall he permitted to withdraw RelAtor's pleas of gtiilty,

However, At the point in which Judge Lindsey hear~ the revocation af

probation hearing he stacked cause number 10218W on top of cause number 10085" thereby rejecting the plea bargain agreements. Page 3.

These plea bargain agreements were consolidated and tried at the same

time as Relator plead guilty to both offenses at the same time in cause

number's 10085 and 10238W. To provide evidence of this fact Relator wo~ld

point this Court to the fact in order for Judge Lindsey to be able to

consolidate these cause number 1 s 10085 and cause number 10238W, Relator

had to waive Relator's rights to indictment in which Relator did in order

to recive the two cause's 10085 and 10238W to be tried together at the

same time, so Relator could receive concurrent set~nces otherwise Relator

would not of waived Relator's rights to be indicted first before the Court

could proceed on both cause's 10085 and 10238W, as the Court lacked

jurisdiction for trial of both cause's at that, time. Relator would fuEther

argue to this Court that Relator is actually innocent of committing these

offenses of Theft in cause number 10238W and Unauthorize Use of a Motor

Vehicle in cause number 10085.

Relator would show this Court that because of the serious collateral

conseauences arising from a conviction for felony theft the doctrine of

mootness does not prohibit this collateral attack. See Ex Parte Guzman,

551 S.W.2d 387 (Tex. Cr. App.1977); Ex Parte Burt, 499 S.W.2d 109 (Tex Cr.

App. 1973); Ex Parte Jentsch,510 S.W.2d 320 (Tex. Cr. App. 1974); Ex Parte

Langston, 510 S.W. 2d 603 (Tex. Cr. App. 1974);See also Ex Parte Harp, 561

S.W. 2d 180 (Tex. Cr .. App. 1978).

Relator would contend that it is well settled that a habeas corpus 1 Application Applicant meets the statutory "in cus tody 'requirements when, at

the time he files the petition he is in custody pursuant to the conviction he

attacks or he is in custody pursuant to another conviction that is positively

and demonstrably related to the convictions he attacks. See Carter vs.

Procunier, 755 F.2d 1126 (5th Cir. 1985); See also Carter vs. Estelle, 677

Relator would assert that Relator is confined pursuant to a May 20th

1986~ conviction for aggravated assault in cause number 13,472, wherein

the 12th Judicial District Court of Walker County, Texas, upon plea of

not guilty and jury trial, Relator was found guilty and punishment was

assessed by the jury at 99 years imprisonment and ordered to run

consecutively with the sentence Relator was assessed upon conviction for

credit card abuse of 20 years imprisonment as punishment in cause number

22778. Therefore, Relator's present confinement is set at 119 years

imprisonment. Punishment enhanced by proof of the prior convictions in

cause number 10085 and cause number 10238W in both convictions in cause

nufub~rs 22778 and in cause number 13,472, that Relator is now confined on.

However, in cause number 22778, Relator plead true to the enhancement Count's cause number 10085 and cause number 10238W. Therefore, Relator

would show that Counsel at the 1981 trial was ineffective because he failed

to investigate the validity of Relator's 1977 convictions that the prosecutor

used the 1977 convictions for enhancement counts when he should have known

that it was void .. See. V.T.C.A.Penal Code 3.03.

A defendant may not by agreement render legal a punishment which is

not otherwise authorized by law. Heath vs. State, 817 S.W.2d 335 (Tex. Cr. 1 App. 1991). In circumstances such as Relator's ' sentences shall run

concurrently~ V.T.C.A.Penal Code 3.03. This language creates an absolute

restriction-of a trial Court's general authority to impose consecutive ,· sentences. See Wilson vs. State,677 S.W.2d 518 (Tex. Cr. App. 1984). A

defect which renders a sentence void may be raised at any time. Ex Parte

Mcjver,586 S_.W.2d 851, 854 (Tex. Cr. App. 1979); Ex Parte Shields, 550

S.W.2d 670 1 675 (Tex. Cr. App.1977).

Clearly, La Porte vs. State,840 S.W. 2d 412 (Tex. Cr. App. 1992), Leaves

no doubt, on the State of the law in this area of the law. Page 5. See also Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993), and Ex Parte McJunkins, 954 S.H.2d 39,39~43 (Tex. Cr. App.1997); See also Cook vs. Lynaugh, 821 F.2d 1072 (5th Cir. 1987); See also Hill vs. Lockhart, L~74

U.S. 52, 106 S.Ct. 366, 369, 88 L. Ed. 2d 203(1985). As Relator clearly had a plea bargain for concurrent sentences in cause No's. 10085 and 11 10238W. See attachment hereto of Exhibit A11 o incorporated herein for all purposes. Clearly Relator is entitled to reversal of the convictions and sentences. Relator suggests the proper remedy in cause number's 10085 and 10238W should be found to be void under La Porte vs. State, 840 S.W.2d 412 (Tex. Cr. App. 1992); and Ex.Parte Sims 868 S.W.2d 803 (Tex. Cr. App. 1993); And Ex Parte McJunkins,954 S.W.2d 39-43 (Tex. Cr. App. 1997), and remand back to the trial Court for new tiial, relying on these above described Court decisions and in cause number's 22778 and -13,472 these sentence's should be reversed for resentence without the void convictions 10085 and 10238W being used for enhancement Counts purposes. As a matter of the law. See Burgett vs. State of Texas,389 U.S. 109, 112-13, 88 S.Ct. 258, 260-61, 19 L. Ed. 2d 319 (1967); Zales vs. Henderson, 433 F.2d 20 (5th Cir. 1970): Martinez vs. Estelle,612 F.2d 173 (5th Cir. 1980); Carter vs. Estelle, 677 F.2d 427 (5th Cir. 1982); See also Carter vs. Procunier?55 F.2d 1226 (5th. Cir. 1985); Cook vs. Lynaugh~821 F.2d 1072 (5th. Cir. 1987). v. THRESHOLD QUENTIONS Several preliminary issues will be raised which must be considered before the issues are reviewed on there meri~s; this has the effect of 11 making this case more complex than the issues of complaints Unkept Plea Bargain agreements and void stacking of the sentences in cause nu~ber

10085 and 10238W 11 , which changed Relator's punishment from a total of four (4) years maximum to a eight (8) year maximum, prison sentence. See Page 6. Attachment hereto of Exhibit ;;B·;; 1 of 3 pages incorporated herein for all ' purposes. Relator did the whole eight (8) years maximum sentence. 11 A EXAMINATION OF THE ATTACHMENT Exhibit B" is a affidavit of

Charley Valdez, at page 2 at the bottom of the page is a record of

Offender Robert Gordon TDCJ-ID#319173 time earning status's to show

promotion and demotion dates:: ;,\iJhich shows Relator was be tv1een 11-23 ·~

1978 to 06-13-1982 a S4 Trusty Line Class~ 54 Status earns 30 days for every 30 days done and earns additionally another 30 days good time. A

total of 60 days for time earning status, Time line class which equals

all time earn for that period. This chart in this box also shows

from 10~05-1982 to 05-22-1983 that Relator was Line class 3, which does

not earn any time of good time status, this time period only earns day

for day time earning status, which means no good time earn. The chart

further shows that Relator was Line 2 status from 05-23-1983 to 07-09-1983,

this time earning status earns day for day with only 10 days added for

good time status. A line I Status earns every 30 days he receives 20 days

goo.d, time earning status. The "B" Status earns a extra 10 days for ever'·y

Clearly, there is a chart showing that Relator was continually

confined between 11-23-1978 to 03-28-07. Which shows Relator discharged

the original 1977 convictions and the 1980 conviction up to the date

and begain serving the 1984 conviction up to the date Relator is still

The chart above described clearly shovJs Relator completed the tvlO

four (4) year sentences as stack by Judge Lindsey. Therefore, Relator suffer

the punishment of the prejudicial stacking of the two four (4) year sentences

and Relator has completed doing the eight (8) years sentence in full.

Therefore, Relator seeks to withdraw Relator's pleas of guilty in cause number's 10085 and 10238W and be able to plea again, Anew to not

guilty in accordance to the prejudicial punishment of the Eight ~ears

that Relator had to do, in violatiorr'of Relator's original plea bargain

agreements of the (2) four (4) year coricurrent sentencing. La Porte vs.

State, 840 S.W.2d 412 (Tex. Cr. App. 1992); and Ex Parte Sims,868 S.W.

2d 803 (Tex. Cr. App. 1993); And Ex Parte McJunkin~,954 S.W.2d 39-43

(Tex. Cr. App. 1997).

Relator was cited for abuse ~f the writ process pursuant to an order

of the Court of Criminal Appeals, pn May 25th,1983. Said Order is attached

Relator states that, as set out in Relator's original Application for

habeas corpus, Relator has not been provided with the opportunity to.

challenge the earlier convictions in number's 10085 and 10238W, on the

issues now presented due to the fact that the only issue on Relator's prior

Appeal proffered by Counsel Jeffrey A. Kearney was the issue of the Judge's

authority to cummulate Relator's sentences. In th:ls Appeal Counsel Jeffrey

A. Kearney received a proitable decision by the C6urt of Criminal Appeals

in it's opini6n by the Court ordering the cumulation reci~als in the

sentences in cause number 10238W are ineffective and' are therefore ordered

deleted therefrom, under the Court's decision in Ex Parte Reynolds,462 S.W.

2d 605 (Tex. Cr. App. 1970). However, the Court didn't stop there,it went on

to state: 11 Finally ~ we have revievJed the Appellant's pro se allegations

and we find them to be without merit~ See Gordon vs. Stat~ 575 S.W.2d

Relator raised in Relator's Prom Se allegations the ~onviction and

sentences 'i.vere based on ''Unkept Plea Bargain Agreements 1' .

Relator would further show the .Court that Relator filed two (2) writ's of habeas corpus while Appeal was still pending before the Court of Page 8.

Criminal Appeals, which Judge Lindsey ordered Relator's two (2) writs of

habeas corpus to be forwarded to the Court of Criminal Appeals to be

treated as pro se brief's on Appeal, per order of the Judge Lindsey.

Upon review of these Pro Se Brief's on Appeal, because the Court

of Criminal Appeals entered into a judgment in Relator's behalf by

ordering the cumulation of cause number 10238W as being ineffective and

therefore ordered deleted therefrom, and ordering the reformation of the

sentences of cause number's 10085 and 10238W to be ran concurrently. See

Gordon vs. State,575 S.W.2d 529, at 534 (Tex. App~ 1978).

Relator's pro se brief's were never reached on there merits because

the Court of Appeals was ordering the reformation of the stacking order

of the Court Judge Lindsey. See Gordon vs. State, 575 s~w. 2d 529, at

534 (Tex. Cr. App. 1978), and this is why the Cou~t found Relator's 11 Unkept

plea bargain agreement claims in the pro se brief's to be without merit,

because the Court of Criminal Appeals was reforming the stacking of the

sentences".

So, Relator didn't suffer no prejudice, as Relator was having R~lator's

original plea bargain agreement enforc€d by the Court of Criminal Appeals

ordering the reformation of the sentences of cause number 10085 and

10238\-J to be ran concurrently. Gordon vs. State,575 s. vJ. 2d 529, at 534 (Tex. Cr. App. 1978).

HovJever, the State filed a Motion for Rehearing vJi thin the Texas Page 9.

Relator has did the full sentences as stacked ~nd has fully completed

the sentences as stacked due to the Court of Criminal Appeals opinion and

decision. See Gordon vs. State,575 S.W.2d 529, at 534-535 (Tex. Cr. App.

1979). So, Relator has suffered the prejudicial harm of the Court of

Criminal Appeals opinion and decision on rehearing. See also Exhibit

the affidavit of Valdez.

Relator would further point out to the Court that on direct Appeal

Counsel Jeffrey A. Kearney completely abandoned Relator on Appeal when he

received the proitable decision by the Court of Criminal Appeals in its

opinion. However, on State's granted Motion for Rehearing and the Court of

Criminal Appeals decision in restacking the sentences. Gordon vs. State,

575 S.W. 2d 529, at 534-535 (Tex. Cr. App. 1979).

Counsel Jeffrey A. Kearney merely sent Relator the Court's decision,

with a letter of the opinion and never advised Relator of the rights to

file a Motion for discretionary review, thereby, denying Relator of the

Relator due to the Court's never reaching the ~'Unkept Plea bargain

issueli raised by Relator. Relator filed the first application for writ of

habeas corpus in the 3rd Judicial District Court of Tarrant County, Texas.

The assistant district attorney in Fort \-Jorth, Texas, filed a

writ response to Relator~s first writ of habeas corpus filed and heard as

a writ of habeas corpus and attached a copy of Relator's two writs of habeas

corpus that were forwarded to .the Court of Criminal Appeals to be consider

as Pro Se brief's on Appeal, which went without being actually heard on oits

merits because the Court's order reforming the sentence pursuant to attorney

Jeffrey A. Kearney's brief on Appeal receiving a favorable Court of

Criminal Appeals decision. See Gordon vs. State,575 S.W;2d 529, at 531-

534 (Tex. Cr. App. 1978). The Assistant District Attorney in Fort Harth, Texas, attached a copy Page 10. of Relator's Pro Se brief's on Appeal and pointed to the Opinion of the

Court of Criminal Appeals \vherein the Court stated that Relator's Pro Se

brief on Appeal was without merit and argued that the Court should cite

Relator for abuse of the writ of habeas corpus because Relator has already

addressed Relator's claims on Appeal and the Court of Criminal Appeals

has found them to be without merit and Relator is again attempting to have

the same claims heard again after they have already been heard and denied

and found to be without merit by the Court of Criminal Appeals. The

assistant district attorney ''played the district Court Judge and the Court

of Criminal Appeals''r by these arguments and committed fraud on the Court in

~· '.vhich the assistant district attorney acted vlith a intentional ill motive 11 which should not have pass even the most lenient ethical smell test'} He

clearly bypassed questions of ethic's in a effort to gain advantage in this

litigation. He clearly acted in bad faith and ignored the facts of the true

reasons in why Relator's Pro Se brief's on Appeal were found to be without

merit by the Court of Criminal Appeals de~ision and opinion in which the

Court of Criminal Appeals was ordering, the cumulation recitals in the

sentence in cause number 10238W to be ineffective and therefore ordered it

deleted therefrom. As, the next statem~nt by the Court of Criminal Appeals:

Finally 1 we have reviewed the Appellant's ProSe allegations and we find

them to be.without merit, but this finding was made because Relator

received a favorable decision on Appeal by the unstacking order. See Gordon

Furthermore, the Assistant district attorney also gain advantage by

his false arguments to the Court of Criminal Appeals by that Court citing

Relator for writ abuse in Relator's first writ of habeas corpus that was

considered at that time and Realobas been denied the ability to ever

file another writ of habeas corpus since the Assistant district attorney made his fraudulent arguments that got the Court of Criminal Appeals to cite Page 11. 11 Relator for writ abuse. See prior 'i.vrit abuse attached hereto as Exhibit C"

Subsequently, the State filed a Motion for rehearing within the Texas

Court of Criminal Appeals under the Rules, ordered a rehearing on the

State's filed Motion for rehearing. The rehearing was granted, and that

part of the original opinion declaring the cumulation set aside is now

reversed and the judgment including the cumulation order are now affirmed.

See Gordon vs. State,575 S.W.2d 529, at 534-535 (Tex. Cr. App. 1979).

Relator would argue to the Court that the rehearing the Court of

Criminal Appeals entered into error by. relying on Spencer vs. State, 503

S.W.2d 557 (Tex. Cr. App. 1974), and Ex Parte Crawford, 36 Tex. Cr. App.

180, 36 ~.w. 92 (1896); Ex P~rte March, 423 S.W. 2d 916 (Tex. Cr. App.1Yb8),

And~Ex Parte Davis, 542 S.W.2d 117 (Tex. Cr. App. 1976).

Relator contends that the trial Court erred in cumulating the sentences

because concurrent sentences are mandated by Tex. Penal Code Ann. 3.UJ (Ver-

Hhen the accused is tound guilty or more than one offense, arising out of the same criminal episode prosecuted in a single criminal action, sentences tor each offense for which he has been found guilty shall be prononced. Such sentences shall run concurrently.

The Court of Criminal Appeals on rehearing erred in th~a it relied on

Relator would show the Court where a trial Judge's cumulates and

does increase punishment after revocation, an additional issue is presented:

Whether an increase ih punishment after revocation violates due process

under North Carolina vs. Pearce, 395 U.S.711, 89 S.Ct. 2072, 23 L.Ed. 2d

656 (1969). Cf. Bovie vs. State,5b5 S.W.2d 543 (Tex. Cr. App. 1978);Lechuga vs. State,)32 S.W.2d 581 (Tex. Cr. App. 1975). Page 12.

The .Court of Criminal Appeals additionally stated in La Porte vs.

State, 840 ~.w.2d 412 ~~ex. Cr. App. 1Y92) that:

"An improper cumulation order is, in essence, a void sentence, ana such error cannot be waived. A derect which renders a sentence void may be ra~sed at any time. Levy vs. State,81~ S.W.2d 801 (Tex.Cr.App. 1991).

The La ~orte, Court further recognized that it had vacated improper

cumulation orders presented for tne. first time in Postc6nviction writs of

habeas corpus. La Porte,Supra, tootnote 5. See Ex Parte Ashe~ 641S.W.2d

243 (Tex. Cr. App. 1982), and Ex Parte Vasouez, 712 S.W.2d754 (Tex. Cr.

App. 1986). See also Ex Parte Sims,~68 S.W.2d 803 (Tex. Cr. App.1993),

Ex Parte McJunkins,954 s.W.2d 39, 39-43 ~Tex. Cr. Hpp.1997).

Kelator contends that as a matter of the law the trial Court, as w~il

the C6urt of Criminal Appeals has erred in cumulating the sentences

l;>ecause concurrent sentences are mandated by Tex. Penal Code. Ann. 3.03

(Vernon's 1974), as a matter of law. See La Porte vs. State,840 S.W.2d 412

(Tex. Cr. App. 1992); Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993),

and Ex Parte McJunkins? 954 S. tJ. 2d 39, 39-43 (Tex. Cr. App. 1997), in which

Relator's convictions should be voided and Relator returned to the

trial Court to face these charges again, as Relator's plea bargain

agreements were violated by the Court and Relator has _already did the

sentences, as cumulated against Relator in cause number's 10085 and

10238W. Relator has suffered the prejudicial harm of the stacking of the

sentences. Relator should be able to withdraw the pleas of guilty, as

Relator was told he would be allowed to do, if Judge Lindsey didn't

except the pleas of guilty. Relator is entitled to relief under Ex Parte Sims, 868 S.W.2d 803, at 804-805 (Tex. Cr. App. 1993); Ex Parte McJunkins, Page 13.

Relator attempted to file another application for w~it of habeas

corpus when Relator came accross the case of La Porte vs. State, 840

S.W. 2d 412 (Tex. Cr. App. 1992), and arguing to the Court that their .has

been a intervening change in the lmv which should allow Relator the

consideration of another application for writ of habeas corpus. However, the

Court again refused to hear; and intertain the claim for relief that Relator

The Court should relize that there is no new habeas corpus claim when

a Applicant merely asserts that ··a previous ruling which precluded a merits

determination was in error. There has been no final determination on the

merits of Relator's first application for writ or for that matter there

hasn't been any consideration uridertaken by the Court of Criminal Appeals

under 11.07 that has ever been undertaken by this Court in none of Relator's

prior applications in any convictions in cause number's 10085 and 10238W,

and cause number 22778 and cause number 13,472, on there merits and there

has never been a written response on there merits~ it always has been 6n

procedural grounds, such as no proper oath being given to the application

which is a requisite to the application. See Code of Criminal Procedural

requisite Article 11.14 (5) or Relator had a direct Appeal pending as

another procedural ground in keeping Relator's applications from being

heard on there merits in any of the above described tauses, as it always

has been Relator's pleadings were deficient as a matter of pleading, and

denial without a v.rri t ten decision. The only reasonable in terpre ta tion of the

denials of Relator's Applications by the Texas Court of Criminal Appeals

is th~t the Court invoked proceduaral default and did not decide the case

on the merits of the Unkept plea bargain agreements, as pointed out by

The writ of habeas corpus is a writ of right, and shall never be

suspended. The Legislature shall enact laws to render the remedy speedy

and effectual. See Code Criminal Procedure Article 1.08 and Article 11.07'

Relator would assert to the Court of Criminal Appeals that in Ex Parte

Torres,943 S.W.2d 469, at 475-476 (Tex. CR. App. 1997); "Because the direct

Appeal record contained insufficient evidence to evaluate the ineffective

assistant of Counsel issue, we hold that the rejection of his claim on

direct appeal does not bar relitigation of his claim on habeas corpus to the

extent that Applicant seeks to gather and introduce additional evidence not

Relator has a similar claim of review on Appeal. Relator raised on

Appeal that the ''pleas of guilty were based on Unkept Plea bargain

.agreements''. No evidentiary hearing was ever entertained by the Court to

allow Relator to develope the facts of the record on Appeal. Relator would

point the Court to review Relator's Exhibit "A" a letter written to Relator

by Counsel Art Brender who represented Relator at the plea bargain

Clearly, a review of exhibit "A" establishes by examination of this

letter that Realator had plea bargain agreements at the time Relator entered

a plea of guilty which Relator was told by Judge Lindsey that he would

except the plea bargain agreements prior to exceptance of the plea by

·Judge Lindsey.

This letter by Art Brender to Relator shows that upon Judge Lindsey

adding a cumulation order to cause number 10238W and stacking the sentence

on top of cause number 10085, Relator immediately complained to Art Brender

of the unkept plea bargain agreements as the letter was written to Relator by Art Brender in response to Relator's letter to Art Brender dated Page 15.

February 23: .. 1978, that he responded to on March 2,197 8, in his response he

makes it clear "the plea bargains in Judge Lindsey's Court were, at that

time, even though not required by law, placed in the record, and the

matters to which you inquire should be a matter of record".See Exhibit "A"

Relator would contend Judge Lindsey excepted the plea bargain agreements

at that time and assessed two probations of four (4) years that were running

As, it is well established that where a trial judge does not order that

two sentences in two different cases shall be cumulative, the terms of

imprisonment automatically run concerrently. Ex Parte Reynolds,462 S.W.2d

605 (Tex. Cr. App. 1970); ·See also Gordon vs State,575 S.W.2d 529,at 532

Thus, Relator argues that since the judgments placeing Relator on

probation did not indicate that the sentences were to be cumulated, the

attempted cumulation after revocation is ineffective, as Judge Lindsey

excepted the pleas of guilty for two concurrent sentences, which were

suspended and Relator was placed on probation for four (4) years.

Rela4lbr would point this Court to examine Exhibit "D" attached hereto incorporated herein for all purposes. This Exhibit "D" which instrument is

entitled "conditions of Probation, in cause number's 10085 and 10238W,

shows on May 12th, 1977, R~lator was placed on probation f6r a period of

Four (4) years, for. the offenses Theft of property over 200 &, under $10,000

cause number (10238W) and Unauthorized Use of a Motor Vehicle Cause number

(10085) by the Honorable Judge Charles W. Lindsey. Relator was only required

to report to the probation Officer of Tarrant County, Texas on the 6th day of

June, 1977, and on the 6th day each month thereafter, during probation.

Relator was only assessed one court cost and one probation fee by Judge ' '

Page 16.

Lindsey and this instrument was written by Judge Lindsey and signed by

However, Relator's punishment, upon revocation of probation, was in

fact increased to eight (8) years. As such, the trial Judge's actions in

entering a cumulation order violated the plea bargain agreements and

additionally presented issues in: nwhether an increase in punishment after

revocation of punishment violates due process under North Carolina vs.

Pearce 1 395 U.S. 711, 89 S.Ct. 2072, 23 L. Ed. 2d 656 (1969). CF. Bovie,

vs. State, 565 S.W. 2d 543 (Tex. Cr. App. 1978);Lechuga vs. State, 532 S.W.

Judge Lindsey's revocation hearing, he stacked cause number 10238W on

top of cause number 10085, thereby rejecting the plea bargain agreements,

but he didn't allow Relator to withdraw Relator's pleas of guilty.

Relator will show this Court that Judge Lindsey didn't.even have the

right to proceed on cause number 10238W at the time in this cause number~.

10238W until it was consolidated by Relator waiving Relator's rights to be

first indicted by the grand-jury, pursuant to the plea bargain agreements

of concurrent sentences of probatiops of:four (4) years.Relator wouldn't

have waived indictment by the grand-jury unless the two cases were

consolidated, cause number''s 10085 and 10238W to be tried together, at the

The pleas were involuntary because they were based on an assurance

from Jud~e Lindsey that he eould only asses~ punishment of two (2) Four

(4) year sentences that he would run concurrently together probated.

On Appeal even though Relator filed a Pro Se brief on Appeal it was

never considered on its merits because the Court of Appeals found in

/ Page 17. /

in accordance with Relator's attorney's brief he obtain a favorable

decision in which the cumulation and stacking of Relator's sentence in

cause number 10238W was found to be ineffective and ordered to be deleted

therefrom. Thereby reforming the sentences to run concurrently. Gordon vs.

State, 575 S.W.2d 529, ~~ 534 (Tex. Cr. App. 1978).

Relator's brief was found to be without merit because in the above

Court's opinion the Court deleted and reformed the sentences.So, at that

time Relator was receiving the sentences concurrently, so Relator wasn't

going to suffer no prejudicial harm. So Relator's brief went without the

unkept plea bargain claim by Relator ever being· considered.

However, it must be remember that the State was granted a Motion for

Rehe~ring and the Court of Criminal Appeals in it's original opinion

declaring the cumulation order invalid and reforming the sentence is set

aside and the judgments including the cumulation orders are now affirmed.

Gordon vs. State, 575 S.W.2d 529, at 534-535 (TeX. C~. App.1979).

Counsel Jeffrey A. Kearney abandoned Relator on App~al and did not

advise Relator of the right to discretionary review by the Court of

Relator was left with just filing the first habeas corpus Application

It must be remembered the State distri~t attorney mislead the Court in

his response to the writ, by asking this Court to cite Relator for writ

abuse and arguing to the Court of Criminal Appeals thai Relator's claims

had already been heard on Appeal and that Coprt found the claims to be

without merit and asking the Court to cite relator for writ abuse, which

the Court did, and left Relator without Relator's claims of a unkept plea

Relator would point out in Ex Parte Torres,943 S.W.2d 469 (Tex. Cr. Page 18.

App.1997), and Ex Parte Thomas,953 S.W. 2d 286 (Tex. Cr. App. 1997),the

Court has made clear that no final disposition unrelated to the merits

and that never addressed the merits of the grounds raised in Relator's

previous Pro Se brief on Appeal or Relator's first application for writ

of habeas corpus which ended in Relator being cited for writ abuse and

the Court's never hearing none of Relator's writs, which there was no

final disposition of Relator's initial writ application and in relation

with Tex. Code. Crim. Proc. 11.07 Section 4 does not bar this Court from

addressing the merits of this instant application for mandamus, habeas

corpus to take whatever action it deems appropriate to address the claims

raised by this Relator in accordance to the Tex. Code. Crim. Proc. Art.

These above cited cases entitled Relator to ONE BITE AT THE APPLE,

THEY clearly contemplated that bite would be a full one. Relator hasn't

had no bite at any previously filed Pro Se Brief's on Appeal or any 11.07

postconviction application for·writ of habeas corpus, because the Court's

denied relief on procedural defaulted grounds.Relator has had no bite at

the apple. See also Ex Parte RawhiRson, 958 S.W.2d 198 (Tex. Cr. App.1997).

In Relator's initial application for writ of habeas corpus all claims

were not addressed on their merits. Relator meets the exceptions to

Relator would also point out to this Court of Criminal Appeals,that

the instant application should not be barred as a "subsequent application

under the Texas Code Criminal Procedure, Article 11.07, Section 4,

because Relator did not become aware of the facts giving rise to the

instant application until several years later after theinitial applications.

This Court initially addresses whether the instant application is

barred as a ''Subsequent ~pplication'', under Section 4, or whether it falls within an exception to such bar Section 4 provides, in relevant part. Page 19.

(a) If a subsequent application for writ of.~n initial application 1

challenging the same conviction, a Court may not consider the merits of

or grant relief b~sed on the subsequent application unless the application

contains s~fficient specific facts establishing that: (1) the current claim

and issues have not and could not have been presented previously in an

original application or in a previously considered application filed under

this article because the factual or legal basis for the claim was.unavailable

on the date th~ applicant filed the previous application.

(C) for purposes of subsection (a)(1), a factual basis of a calim is

unavailable on or before a date described by subsection (a)(1)if the

factual basis was not ascertainable through the exercise of reasonable

diligence on or before that date. Tex. Code. Criminal Procedure Article

Relator asserts that the Court's of Appeals relied upon Caughorn vs.

State, 549 S.W. 2d 196 (Tex. Cr. App. 1977), which held that the State's

failure to file notice of consolidation in compliance with section 3.02(b),

meant the action did not constitute a single criminal action under section

3.02. Therefore the prohibition against cumulation provided in Section 3.03

did not apply. See . also Garza vs. State,687 S.W.2d . 325 (Tex. Cr. Ap~.1985);

However, Relator would call the Court's attention to the case of

La Porte vs. State, 840 S.W. 2d 412, at 413-414 (Tex. Cr. App. 1992),

wherein the Court of Criminal Appeals found that this conclusion was

clearly erroneous, and overrule Coughorn. See La Porte vs. State, 840

Relator contends theres been a intervening change in the law.See

La Porte vs. State, 840 S.W.2d 412,413-415 (Te2c. Cr. App. 1992).

A sentence not authorized by law is void. Heath vs. State,817 S.W. Page 20. 2d 335 (Tex. Cr. App. 1991); See also Wilson vs. State,677 S.W.2d 518

(Tex. Cr. App. 1994). A defect which renders a sentence void may be raised

at any time. Ex Parte Mclver,586 S.W.2d 851,854 (Tex. Cr. App. 1979);

Ex Parte Shields, 550 S.W.2d 670, 675 (Te~. Cr. App. 1977).

Relator has always complained to this Court that Relator had a Plea

bargain agreement for two (2) four (4) year sentences that would run

concurrently, and in which would be suspended and probated. Relator raised

the claim of the unkept plea bargain by Pro Se Brief on direct Appeal.

Hhich was never considered on Appeal due to the Cou~t of Criminal Appeals

setting asside the cumulation order and deleting it as ineffective. However,

on rehearing by the State it·was restacked and Relator has did ~he whole

sentences as stacked and Relator has suffered t~e full prejudicial ~arm by

this cumulation order on rehearing. See Gordon vs. State, 575 S.W.2d 529 1

at 534-535 (Tex. Cr. App. 1979). Relator therefore concludes that the

correct thing for this Court to rule is that Relator is entitled to relief

pursuant to the cases of La Porte vs. State, 840 S.W.2d 412 (Tex. Cr.App.

1992), and Ex Parte Sims,868 S.W.2d 803 (Tex. Cr. App. 1993), and Ex Parte

Relator contends that he should be heard on these matters and Relator's

convictions in cause number 10085 and 10238W should be found in error and

grant Relator reversal of these convictions and set them for retrial.

Relator would also contend that this Court of Criminal Appeals should

also set asside Relator's sentence in cause number 22778 as a void

conviction may not be used to enhanc2 an individual's sentence under the

Texas Statute. Burgett vs. State of Texas, 389 U.S.109~ 112-13, 88 S.Ct. 258,

260-61,19 L.Ed. 2d 319 (1967). See also Martinez vs. Estelle,612 F.2d 173,

175 (5th Cir 1980); as Relator also claims that Relator's Counsel Larry M.

Thompson at the 1980 trial was ineffective because he failed to investigate the validity of Relator's 1977 ·convictions, and that he wrongly advised Page 21.

Relator to plea true to the enhancement counts of cause number 10085 and

10238W.without explaining to Relator what the plea of true intended and

it's consequence and failed to investigate the void convictions and he

allowed Relator to be enhanced by the prosecutor whom used the 1977

convictions for enhancement when he should have known that they were

void convictions. See Cook vs. Lynaugh,821 F.2d 1072 (5th Cir. 1987); See

also La Porte vs. State, 840 S.W.2d 412 (Tex. Cr. App. 1992).

And lastly, Relator's sentence in cause number 13,472, should also

be reversed for resentence 7 as Relator was wrongly enhanced by cause

number's 10085 and 10238W as they are void convictions pursuant to La Porte

vs. State,840 S.W. 2d 412 (Tex. Cr. App. 1992), and Ex Parte Sims,868 S.W.

2d 803 (Tex. Cr. App. 1993), and Ex Parte McJunkins,954 S.W. 2d 39,39-43

(Tex. Cr. App.1997); See also Martinez vs. Estelle,612 F.2d 173,175 (5th

Cir. 1980); See also Spen~er vs. Texas,385 U.S.554, 87 S.Ct. 648,17 L.Ed.

2 d 6 0 6 (1 9 6 7 ) .

In Ex Pat~e Stuart, 653 S.W. 2d 13, the defendant challenged

conviction, and the prior convictions uded to enhance itt through

numberous applications for writ of habeas corpus Id. At one point,we

cited Stuart for abuse of the writ process Id. Seven years after his

conviction, Stuart, again sought habeas relief challenging the use of

the prior conviction '. i ·__.. to enhance his sentences. Id. at 14. We found

that Stuart's claims had merit in light of changes in the law following

our affirmance of his conviction. Id. We then held that under Cooper vs.

State, 631 S.W.2d 508 (Tex. Cr. App. 1982), and Ex Parte Augusta, 639 S.W.

2d 481 (Tex. Cr. App. 1982), Stuart was entitled to relief retroactively.Id. 653 S.H. 2d at 14 .. 15.

Thus it is readily apperent in light of Schuessler and Stuart, that

previous litigation· of the issue does not necessarily bar it's reconsideration Page 22. on habeas corpus. See Ex Parte Drake, 883 S.W.2d 213 (Tex. Cr.App.1994).

Relator has wailed like a stuck pig for years \vhile this Court has

denied Relator an opportunity to be heard by this Court on Relator's

convictions in cause number 10085 and cause number 10238W, as being a

The Coprt's have performed such serious surgery on the great writ,as

This Court should not forget what the Supreme Court of the United

States previously pointed out in construing the habeas corpus statutes.

;'vJhile the rhetoric · · celebrating habeas corpus has changed little over

the centuries. (footnote d~leted), it is neverthe less true that the functions

of the writ have undergone drastic change ... 11 (H)abeas Corpus is not a static, narrow, formalistic remedy", Jones vs.

Cunningham,371 U.S. 236, 83 S.Ct. 373,9 L. Ed. 2d 285 (1963), but one

which must retain the ability to cut through barriers of form and

procedural mazes'= (Citations Omitted). The very nature of the writ demands

that it be administered essential to insure that miscarriages of justice

within it's reach are surfaced and corrected. (Citation deleted). Thus we

have consistently rejected interpretations of the habeas corpus statutes

that would suffocate the writ in stifling formalisms or hobble its

effectiveness with the m_anacles of arcane and scholasti.c procedural

requirem~nt". Hensley vs. Municipal Court, 411- U.S. 345, 93 S.Ct. 1571,

Our habeas corpus law(s) has always been available to obtain release

of any one who is unlawfully restrained of his liberty. See also Ex Parte

Lemke,13 S.W. 3d 791 (Tex. Cr. App.2DOO).

Clearly the failure to hear the merits of Relator's Unkept Plea bargain agreements would work a "Manifest injustice 11 , as there is Page 23.

controlling authority in the interim that have made a contrary decision of

law applicable to the disputed issues. Falcon vs. General Telephone Co,815

F.2d 317, 320 (5th Cir. 1987); See also La Porte vs. State,840 S.W.2d 412

(Tex. Cr. App.1992), and Ex Parte Sims, 868 S.W.2d 803 (Tex. Cr. App. 1993),

and Ex Parte McJunkins,954 S.W.2d 39, 39-43 (Tex. Cr. App. 1997); See also

Ex Parte Lemke, 13 S.W.3d 791 (Tex. Cr. App. 2000). Plain error was committed

which, if not noti6ed, would result in a manifest miscarriage' of j~stice

Coughlin vs. Capito Cement Co,571 F.2d 290, 297 (5th Cir. 1978); See also

Klapprutt vs. United States,335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949).

As there are no time restrictions on a lawsuit of this kind, Relator

may apply for the writ any time Relator feels the burden of multiple

convictions are moie than Relator can bear.

Relator requests that this Court grant the Mandamus, and application

for writ of habeas corpus; order Respondent to show cause why Relator

should not be set at liberty; give a plenary hearing to determine the

facts; and order production by the State of such documentation as may be

necessary for the proper determination of this cause. Relator further

prays that after determining the facts herein, the Court order Relator

freed from further restraints upon his liberty, order cause number 10085

and cause number. 10238W reversed for a new trial in each case and brder

Relator's sentences in cause number's 22778 and 13,472 reversed for (~new

sentencing hearing in cause number 22778 and cause number 13,472 and order

Relator completely discharged from illegal custody of all Court's and

cause numbers and end Relator's illegal confinement from any further

RespectfullY. Submitted, ~~ .)./~--Al.-~-__; Robert Go~ ~~~319173 Hynne Unit 810 FM 2821 Huntsville, Texas 77349 ,, --:- ----

Page 24.

I, Robert Gordon TDCJ-ID#319173, being presently incarcerated at

the Wynne Unit of the Texas Department of Criminal Justice--Institutional

Division, in Walker County, Texas, declare under penalty of perjury that

the foregoing is true and correct. Executed on this ~ay of ____________

--~~----~~~--------------2015:

Robert Gordon TDCJ-ID#319173

810 FM 2821

Huntsville, Texas 77349 \ ... ·.. o I. -}\. ' ;I t:.X \'1.L w>- ..\...· t \

Exhibit A. \ \i ' \ \ ART BRENDER · Attornet al Ltw \ · 1417 E.lgblh Avensu 'I Pffi Worth, Te:us 76104 . j \ Phon' (817) 921·3731 ' .: .//] j March 2,· 1978

.Mr. Robert Gordon 'i 300 West Belkn.ap Fort Worth, TX .76102

Dear Mr. Gordon: In response to your letter of February ~3, I would ask that you have your Attorney, Jeff Kearney, contact.me concerning the matter. The plea bargains in Judge .Lindsey'~ Court were, at that ·time, even though not required by law, placed in the record, and the matters to which you inquire should be a matter of record. J

ours,

~ AB:ml

-Exhibit A.

·.r ·.· . .,··. .· '

j . 1. ... - --~---...----·-~~·-- -------~--~--- . ~ ,... ~' \~ I \ \. I \,. ~ Exhibit B .!

lof3 "?3SS2S .I j I I

J

AFFIDAVIT OF CHARLEY VALDEZ i ·I I

I i 1 I

STATE OF TEXAS \ COUNTY OF WALKER \

i I j

BE~ORE ME, the undersigned, a Notary Public in andforthe State ofTexas, on this day

personally appeared Charley Valdez, who, after being duly sworn, deposes as follows: J 'i! . ~~ I

"My ha.tne is Charley Valdez. I am ever tv.renty--one years of age, of sound mind; {'.a:pabie '"'""\""· ' < l of making this affidavit; and personally acquainted with the facts herein stated. I am employed ~s Program Specialist III for the Classification and Records Division

("CRD") of the Texas Department of Criminal Justice-Corrections Institutions Division, and my

office is located inHuntsville, Texas. I have reviewed time records kept by the CRD regarding :.. r--~ ~,. .: offender Robert Gordon; TDCJ # 319173. CRD maintains these records in the regular c.01me of ) )

l \ I bu~iness of every offender confined; and it was the regular course of business for an employee or 1 r,ept;_esent;:ttive to. TDCJ-CID with knowledge of the act, event, condition, opinion or diagnoses,

recorded to make the record or to transmit information thereof to be reasonably soon thereafter. '. ~.~

Based on my review of these records, the following table contains the current senter~·~e . i•.

' ' ...-,. '

·. / r,..,., . J ·" I J ! Exhibit B 1 of 3 Pages

.c j <)ff"!t';S~$ ! .T I i Coun~:y T Causr;; Number Sentence 1-----·------ Sentence Date Sentence Begin Date II Projected Mandatory Maximnrn Expiration 1 I

I 1--···--··------ J I l - Release Daie Date

! Credit C:u-d I ,--. I Abur.e --------·-+ Tarrant 22778 20.:1..~~~-- 4-6-1981 6-26-1980 9-25-2037 11-22-2097

I f Agp::·~1vated As,{au!t' W/DW

L ________ Walter

I 13,472 99-years consecutive to r.ause#12778 5-20-1986 Consecutive 9-25-2037 11-22-2097 ' - J \ / ./

Ofhnder (Jordon was received into TDCJ custody on 5-ll-1981 from Tarrant County on a 20-year Il sentence. Offender Gordon is charged with Credit Card Abuse by the Number Four District Court under czuse numb<;;r 22778. Offender Gordon is c.harged for an offense occurring on 6-23-1980, with sentencing II on 4-6-1981, and to begin on 6-26-1980. l ·~ .

While in TDCJ confined at the TDCJ-Ellis Unit in Walker County, offender committed the offense of Aggravated Assault with A Deadly Weapon. Offender was sentenced to an additional 99-year sentence by the 12m Judicial District Court under cause number 13,472. Offender Gordon is charged for an offense occurring on 10-16-1984, with sentencing on 5,..20-1986, and with jail credit allowed from 10-16-1984. This ; changed the net sentence from 20-years, to 119-years. The offender under cause number 13,472 is eligible i for mandatory supervision, but is flat calculated for parole eligibility. Offender has a current parole review :.-· date of 1112009.

On 10-16-2001 pre-sentence jail credit':l of 5& l-days was applied on cause number 13,472. The cumulative · begin date was changed from 6-26-1980 to 11-23-!978 due to the 581-days of cumulative jail ."Cl'lt(:!l·;;;; "'1 ~redits pur!'uant to Ex partP. Bynum, 772 S.Vl. 2d 113 (Tex. Crim. App. 1989). ! J .i , I i1 Prior to 1987, sentences were aggregated according to statute. Article 6181-1, V.T.C.S., Sec,.1(4) Defining :-~ :l "tenn'~ provided: ''\\'hen two or more sentences are to be served consecutively and not concurrently,. the

;l j) aggregate of the sentences shall. be considered the term for purposes of this Article." The statut~ry demarcation for purposes of consecutive computation was discussed by the Court of Criminal Appeals in Ex. parte Hannington, 832 S.W. 2d 355 (Tex.Crim. App. 1992).

This is a record of offender's time earning status's to show promotion and demotion dates: N()TE: Effective April 1, 1995, the practice of backdating was . discontinued per Board of , Correction Polic::..y~:--~·______________.....:...,____________ ·Tr'i-23 1978 ·:ro 06 13 1982 RATE: S4 I 06 14 1982 TO lO 04 1982 RATE: L2 l ::;~5 i932TOD52.2l933RATE:L3 j05231983T007091983RATE:L2 I ;)7 10 i983 TO 10 25 1983 RATE: S4 110 26 1983 TO 05 10 1984 RATE: L2 I OS ll 1984 TO 05 31 1987 RATE: L3 I 06 01 1987 TO 09 29 1987 RATE: L3 B 09 30 t987 TO 12 21 \987 RATE: L2 B 112 22 1987 TO 03 22 1988 RATE: S4 B '

\ 03 23 1988 TO 12 15 1988 RATE: L2 B 112 16 1988 TO 07 24 1989 RATE: L3 B 07 25 1989 TO 10 24 1989 RATE: L2 B jlO 25 1989 TO 05 10 1990 RATE: S4 B 05 l 1 1990 TO 08 06 1990 RATE: L2 B I 08 07.1990 'FO 01 21 1991 RATE: L3 B ,, ', 01 22 1991 TO 04 22 1991 RATE: L2 B I 04 23 1991 TO 08 16 1991 RATE: Ll B \!';Jg 17 l991 TO 09 30 2001 RATE: L3 B 110 012001 TO 10 09 2001 RATE: L2 B . 10 lO :~001 TO 06 03 2004 RATE: L3 B I 06 04 2004 TO 02 lO 2005 RATE: L2 B . I i~2. ~t 1 20!)5 TO 09 28 2006 RATE: L3 B I 09 29 2006 TO 03 28 2007 ~:rE: LI-B ; (r3 29 2007 TO i : ----- . RATE. S4 B I - .- - - TO - - - - - R..o\.fE. - - !..-------··----------------------------------- J Exhibit B 2 of 3 Pages 1

\ ,,. -· ~' l,·) r' I Exhibit B 3 of 3 Pages

OD:ender Gordon completed his GED on 6-1-1987 and was awarded 60-days of good time credit on 9-!S--1987. {)tfender has a total of30-years, 1-month, and 23-day:> offlat time served, 12-years, 2-months, m>d :1--days of good time, and 1-month, and 30-:1ays of hc-mls time credit~. p ,.I' r, (;::;·;;w;iers in administrative segregation shall be awarded only the amount of good conduct time \\ I n·rdit based on their time-earning status, for ~ts loug as they remain assigned to administrative I se:;rq~adon status. These offenders shall not be :twa1·ded the "diligent participation" good conduct dme credit.

Pmsuant to TEx; GOV'T. CODE § 501.0081, this office received a time dispute resolution forms frcm n fr:.::nder en 7--12-200 l, ~nd responded to the offender on 10-16-2001. This office responded to the offt'nder ~i1;:,t tbem was no error in his cunent time c.alculations. The offender was further advised that if he was .:b:;'Jtid1ed with this re~;ponse that he should {:ontact State Counsel for Offenders tor further assisti1n•::e.

.. ..........

CHARLEYVAU z Program Specialist ill Classification . and .Records Texas Department of Criminal Justice Corrections Institutions Division

-~~

~ SUBSCRIBED AND SWORN TO before me, the said No~uy Public on this the 15th day of Janui:uy, 2009, to certify which witness my hand and seal of office.

~ '"'- \ \ __ \..v / '

\ \ Notary Public In and For \ The State of Texas '\

2 Exhibit B 3 of 3 Pages . :f--._____ . -~~-· _J . \.._- - .l Exhibit C 1 of 2 Pages. ~-

EX PARTE ROBERT GORDON Habeas Corpus Application WRIT NO. 10,271 From TARRANT County ·,:

This is an application for a writ of habeas corpus which was submitted to this Court by th~ trial court pursuant to the provi- sions of Art. 11.07, V.A.C.C.P. Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App. 1967). In 1977, the applicant was convicted of the offenses of unauthorized use of a motor vehicle and theft in Tarrant County cause numbers 10085 and 10238W. Punishment was assessed at impri-. sonment for four years in each case. These convictions were affirmed on direct·appeal. Gordon v. State, 575 S.W.2d 529 (Tex.Cr.App. 1978). In 1981, the applicant was convicted of the offense of.credit card abuse in Tarrant County cause number 22778. Punish~ent, enhanced by proof of the prior conviction for unauthorized of a motor vehicle, was assessed at imprisonment for 20 years. This conviction was affirmed on direct appeal. Gordon v. State, 638 S.W.2d 654 (Tex.App.--Ft. Worth, 1983). In his present application, the applicant contends that there was a bona fide doubt as to his competence to stand trial in 1977, as well as to his sanity at the time of those offenses. This application, however, presents a more serious question. This Court's records reflect that, in addition to his direct appeals, the applicant has filed fi;,·e previous applications challenging one or more of these convictions. It is obvious from the record that'the applicant is con- tinuing to raise issues which have been presented and rejected or should h~ve been presented on direct appeal and in his prior writs. '~'':'-" ~ri_t: __ nf_· hah::!.aS, ..f:o.rpus J~-t~o~_se:r:;:i.ous _and important <:t matter to . -- . - ·----·-. -· ·-.:.. . ...,....._.: ··:~ ~- ..· . -

be lightly and easily abused. See Ex parte Carr, 511 S.W.2d 523 (Tex.Cr.App. 1977): Sonders v. United· States, 373 U.S. l (1963). See.a1so- Smith v. ~stelle, 562 F~2d 1006 (5th Cir. 1977); McDonald v. Estelle, 590 F.2d 153 (5th Cir. 1979); Potts v. Zant, 638 F.2d 727 (5~ Cir. 1981); Hansen v. Estelle, 641 F.2d 250 (5th Cir. 1981) (delayed applications) •

- . .. Exhibit C 2 of~ P9ges \ ,_ ~

PARTE GORDON [P<::ge -2-1

We hold that the applicant's contention is not only without merit, but has been waived and abaondoned by his abuse of the writ \ of habeas corpus. Therefore, the Honorable Thomas Lowe, Clerk of the Court of Criminal Appeals, is not to accept or file the instant application for a writ pf l}$eas.qorpus . . ~e is also instructed not to accept in the future any applications for writ of habeas corpus att~cking

these convictions unless the applicant has first shown that any contentions presented have not been raised previously and a showing is made that they could not have been pre~ented in any ea~lier 1/ application. for habeas corpus relief.- Ex parte Dora, 548 S.W.2d 392 (Tex.Cr.App. 1917); Ex parte Bilton, 602 S.W.2d 534 (Tex.Cr. App •..19 80) . . IT IS SO ORDERED. this the 25th day of Hay, 1983. PER CURIAl-1 En bane

1 In Ex parte Dora, supra, this Court explained the duty of the trial court after the entry of an abuse order as follows: .,Where a petitioner has been previously cited for an 'abuse of the Great Writ,' the trial court should not thereafter consider the merits of any application for writ of habeas corpus filed by that petitioner. The trial court should, however, review the application and make findings that this petitioner has abused the writ in the past, thus making the review procedure of this Court more efficient. The transcript should be forwarded to this Court, just as in all other cases, pursuant to our automatic review jurisdi~tion. SeP Ar~. 11.07, Sec. 2(aj, ~upra. Th~ writ t=-an.:>c.~:ivt~should,~of course, be forwarded to this Court within fifteen days of the trial co~rt's order. See Art. 11.07, Sec. 2(c), supra,"

I (

A True CoPY Atte~t: Tnorr,as t.o-. . . of Texa~ court of B~

Exhibit C 2 of 2 Pages .

---------- . ,,_ .. · "::'~------ . 200 \Y. tj~L.i.\.:.'11... ,..._tL•~l .i.•LUU.t'-. 1.,-.i\.UU.!.·;.J.J..-;. __..,_. ,u !JlJlL.i.Jl~"·~ . · ... "l.'el'~phone: .~;:!-1-U-i-01) Of.{ _)Hv1.:r::;: 8:00 .A. r.r. to -t::so P. ~L .:.Icin.day ~l-;rough FridnyExb"ibi ~ge - . . . · .. coi1D.ITIONS OF L I PROBA:tin:L~T: , . . . 3.. \. . ':. TlLS STATE OF 'G:US 1X CRDITN..tJ..L DISTRICT COURT NQ.;_;___ _~ · / /; /) .r> ;-.; I f.,'2 3l;·/ VS. NO. / v (. v-- 1 TAlliUu..;-T COUNTY, TEXAS "I

·' ;; ........... ' :L.L ·:. :,-:_, r. ,• /

:.7.:-.nt County, Texns. 1t h t.~e ORD2£~ of the Court th6.t you sh~l comply 1\-ith the following terms 2:-:d coaditions of Prob!Lt!on: c..-Jr.mlit no off~'>_n.:;e nininst the laws of this State or nny other State or the Unit-ed St.-.tes; A ·;:::~id i:nj urious or vicious habits; ~~id persons

}'::

-------------____,._, HL..L.L, ancl on the_ ~ ·day of each month thereafter, during })robation; ·I 'I 11ermit the Probation Officer to visit you at your home or elsewhere; \Vork f~it.!:lft:lly nt suitable employ:rnent :L::> far as possible; · f·:~-:m:lin v.ithin the limits of T1~.rrant County, Texas, unless given permission by the Tarrant County Adult ,·~~ba:ion Officer to leave therefrom; pport your clepenclent3; · ,I ! :

--~:~.._.,.-~OS"TIT COST in the arnot~~t of S {:tJ , at the,..ro.te of$ ?t.~ {'O /!l.. per 7'7-t.·t'Jt:z-L, ,....,tl:-e fi:-3t p, >"TT'cnt to be made on the fr-. fl-- day of \..\~~~~.1..;.-?u·t..:.f-:'·:__ _ _ _ _ , 19-ZZ, and a like payment t-_).~ ti1e ~ ·_/-1.._ dar of each month there~-:fter until fulC~ayme!;lt is made; \\ . :. e •. on...o..rro.:, FEE m the amount of S I t•. Oo on the ( f/.... day of_ __,'Y..:.,....J..f.:.:•.t..:....:r:...::-""'~.;.·-----. 19~. ancl on t~~ ~, fk .cby of each month thereafter during Prohation; fJ 2. TIESTITL'TIO~ in the amount of $ t the rate of $ ' - - - - per_ _ _ _ _ _ _ __ t!1e first p~yn1ent tc.. be made on the · clay o , 19----. and a. like payment on the dny of each month. thereaftef tmtil full pay'ment is made; <1. FTIE i:1 t!te amount of $ at the rate of$ · per : the first pc:.yment to bE: made on th clay of . ,·19__, and a like payment on the _ _ _ _ clny of each month thereafter until full payment is made.·

Submit to <'. period of detention in the County Jail of Tarrant County, Texas, to serve 2. term of imprison- ment of clays, to begin on the. day.of 19-

FILED . CRI!.lli'll.!.. GlSTRICT COURT No. ~­ .TAR~~-~ii COIJ:'IIf. TEXAS

"1."-V·lo ,,, •.~ . ,_ "C77 1-.~1 ·

\ J. \'/. BOORMAN :~····-----·~----...,..--·-. --- ·-·---~-

This day, a copy of the conditioM of Probation was hanrled to me by~the Clerk _;!,tliis Court. \_ . .. \~ . .;lCS. . -"- .

-:.,._~ . . . _ f._~ ~r ~~ .

; .

· · \...P .£[\ __ ~ , ~"'/.." - / &t.4-"',·~·6f"J-<_,d_-#-- / . Probattoner . .

1\ . · · :.. Pro~.u~i