Gray, Donald Lee

Opinion

WR-82,772-02

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 3/17/2015 8:18:11 AM Accepted 3/19/2015 1:32:50 PM ABEL ACOSTA

CLERK

Nos. 82,772-01, 82,772-01 and 82,772-03 RECEIVED

COURT OF CRIMINAL APPEALS EX PARTE § IN THE COURT OF CRIMINAL 3/19/2015

ABEL ACOSTA, CLERK

§

DONALD LEE GRAY § APPEALS OF TEXAS

MOTION FOR REMAND

To the Honorable Judges of the Court of Criminal Appeals:

Donald Gray, petitioner, respectfully asks the Court to remand to

the district court for consideration of his affidavit confirming restraint.

As explained in his brief, Gray seeks habeas relief from three

convictions for improper photography, Penal Code section 21.15,

declared unconstitutional by the Court last year. Gray’s continuing

restraint affidavit was filed after the district court signed adverse

findings and conclusions but before the record was send to the Court.

Remand is appropriate to permit the district court to evaluate the

affidavit. The State’s answer to the petition recognizes that the Court

has held the statute unconstitutional and appears to concede the writ

would be granted, but for the affidavit of restraint.

Alternatively, in the interests of judicial economy, the Court can

grant the writ on the basis of Gray’s affidavit. If denied, Gray would be

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permitted to file a successor writ under section 4(a)(2) of article 11.07,

the actual innocence provision. Section 4(a)(2) allows a successor writ if

the individual is actually innocent of a Penal Code violation, without

any other restrictions. Here, the improper photography statute has been

declared unconstitutional and therefore any conviction would be void ab

initio. It would seem, therefore, that he can satisfy section 4(a)(2). An

example appears in Ex parte Knipp, 236 S.W.3d 214 (Tex. Crim. App.

2007), in which Court unanimously granted a successor writ under

section 4(a)(2) on a double jeopardy claim that rendered the conviction

invalid from inception. Gray’s position appears identical.

Respectfully submitted this 16 day of March 2015, /s/ James W. Volberding

______________________________

JAMES W. VOLBERDING SBN: 00786313

First Place 100 E. Ferguson Street Suite 500 Tyler, Texas 75702 (903) 597-6622 (866) 398-6883 (fax) e-mail: jamesvolberding@gmail.com

Counsel for Donald Lee Gray

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Certificate of Compliance

Pursuant to Rule 73.1(f), I hereby certify that this pleading contains 252 words, measured in MS Word for MAC version 14.3.6.

/s/ James W. Volberding

____________________________________

JAMES W. VOLBERDING

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this pleading has been delivered this 16 day of March 2015 to:

Smith County District Attorney 101 N. Broadway, Fourth Floor Tyler, TX 75702

by the following means:

_____ By U.S. Postal Service Certified Mail, R.R.R. _____ By First Class U.S. Mail _____ By Special Courier _______________________ _X___ By Hand Delivery _____ By Fax before 5 p.m. _____ By Fax after 5 p.m. _X___ By Electronic Filing.

/s/ James W. Volberding

____________________________________

JAMES W. VOLBERDING