Handy, Emerson

• Court: Court of Appeals of Texas
• Decided: September 16, 2015
• Docket: WR-83,898-01
• Status: Published

Opinion

'83, -gor czs -o I RECEIVED IN CAUSE NO. 1278565-A COURT OF CRIMINAL APPEALS

EMERSON HANDY § IN THE JUD &Ei'At 6 2015 #1792077 § § v. § DISTRICT cou&P~~costa, Clerk § § HARRIS COUNTY, DISTRICT CLERK: § HARRIS COUNTY, TEXAS

"PLAINTIFF'S ORIGINAL APPLICATION

FOR WRIT OF MANbAMUS:"

TO THE HONORABLE JUDGE.OF SAID COURT:

Comes now Emerson Handy, Relator, pro-se in the above-styled and numbered cause of action and files this original applicat- ion for· ·writ of mandamus pursuant to the court article 11.07 section 3 (c) of the Texas Code of Criminal Procedure, and would show_the court the following:

I. '~-~:\\:;,"'"'·- ·'-&, ';_

Emerson Handy, TDCJ #1972077 is an offender incarcerated in

the Texas Department of Criminal Justice and is appearing pro-

se, who can be located at the Wayne Scott Unit A-1-21, 6999 .....'l,,r:.!>.,..,..._ __ ....... ~.. -

Retrieve Rd. Angleton, Texas 77515. Relator has exha~sted his

remedies and has no other adequate remedy at law. The act sought

to ~be compelles is min~sterial, not discretionary in nature.

V.A.C.C.P., art. 110.7 section 3 (c) requires respondent to

immediately t~ansmit to the Court -of Criminal Appeals a copy

of the application for writ of habeas corpus, any answers filed

and a certificat~ reciting the date upon which that finding

was made, if the convicting court decides that there are no

issues to be resolved. No copy of the application for writ

of habeas corpus, any answers filed, and a certificate reciting the date upon which that finding was made have been trans-

mitted to the Court of Criminal Appeals. Had such documents

been transmitted to the Court of Criminal Appeals by respondent

as required by state, ~elator would have received notice from

the Court of Criminal Appeals.

ii. DAtJ,'rL _ & at£ II in. her /his capacity as District

Clerk of Harris County, Texas has a ministerial duty to receive

arid file _all paper's in a criminal proceeding and perform all

other duties imposed on the clerk by law pursuant to V.A.c.c.P., -•. 2.21, and is re~ponsible under V.A.C.C.P., ll.07 section

3 (c) to immediately transmit to the Court of Criminal Appeals

a copy of the application for Writ of Habeas Corpus, any answers

and certificate reciting the date upon which that find-

ing was made if the convicting court decides th~t there are

no issues to be .,\· c J.J~_;_s _. resolved.-.. . . o JJ;.c.L i:i District Clerk, Harris

County may be served at her/his place of business ,at ftMR;~ ~+.:.II.J...f'---~Texas, 7 7 2/0- C/ros /. IIT.

V~Qlation of Article 11.07 of

The respondent violated article 11.07 section 3 (c) of

the V.A.c.c.P., by failing to provide a copy of the application

for writ of habeas corpus, any answers filed, and a certificate

reciting the date upon which that finding was made to the Court

of Criminal Appeals within the time prescribed by law and with-

in a reasonable time from the date on which the documents were

requested to be transmitted.

Requests for the transmittal of the application for Writ

{1 ) of Habeas Corpus, any answers filed, and a certificate -·- reciting the date upon which that finding was made, were made '>. CUR;s o~ M1° E L by relator to ~ , District Clerk, Harris County,

by certified mailed Letters ' date 12-16-2014: pursuant to art-

icle 11.07 section 3 (c) of the Code of Criminal Procedure.

True and accurate copies of the above letters are attached hereto

as exhibits "A" through " " and are incorporated by reference

herein. for all purposes.

To date, relator has received no response from respondent

regarding relator's request for transmittal of a copy of the

application for Writ of Habeas Corpus, any answers filed and

a c~rtificate reciting the date upon which that habeas corpus,

any answers filed,and.acsrtificate teciting the date upon which

that finding was made to the Court of Criminal Appeals.

As is clear from relator's letters, relator has repeatedly

put respondent on notice that relator seeks the transmittal

of copy of the application for writ of habeas corpus, any answ-

res filed, a certificate reciting the date upon which that find-

ing was made to the Court of Criminal Appeals and that such

records are required by the Court of Criminal Appeals to act

on relator's writ of habeas corpus. Relator has gone well be-

Dyond any requirement or obligations imposed upon him by the

Texas Code of Criminal Procedure. /

In contrast to relator's article ll.Q7 secction 3 (c) is

acting in bad faith, and has also failed to afford relator the

professional and common courtesy of any written respone's to

his correspondence and requests.

Article 11.07 section 3 (c) clearly states that "[i]f the

( 2) --.,

.•

'convicting court decides that there are no such issues,

the clerk shall immediately ·transmit [emphasis added] to the

Court of Cri~in~l Appeals a copy of the application, any answ-

ers filed, and a certificate reciting the date upon which that

finding was made. Failure o£ the court to act within the all-

owed 20 days shall constitute such a finding. Texas Code of

Criminal Procedure article 11;07 section 3 (c) respondent is

in violation of this proced~re, ministerial· duties, and thus

the laws of this state. _T_N_Rf.' AB-"kaR. L!\Mo_tJ_I~1iJd,le:-Jl;J&/&. -a-Y3-=.l!:L1_~~j.___ MANJ.A.M-lJ>_ (a_€ _I±M~p_i~LI._D]__Ct ..C~g;_;~.ll.eP-.__fkloJ?E lhi E>t{21_~Eho;J ol if! d~Jy.sV~o.ll1t;;Q!'l. CAUSE NO. 1278565-A .

Prayer For Relief

WHEREFORE, . PREMISES CONSIDERED, Relator Emerson Handy~~

pro-se, respectful1y requests a finding that the respondent

did not transmit documents to the Court of Criminal Appeals

within a reasonable time . after the date they were requested

and tha~ relator brought this 1itigation in good faith and.has

substantially prevailed. Relatbr pray~ FOR AN ORDER DIRECTING

RESPONDENT TO TRANSMIT COPY OF THE APPLICATION FOR WRIT'OF HABEAS

CORPUS, any answers filed, arid a certificate reciting the date

upon which that finding was made to the Court of Criminal App-

eals as directed in article 11/07 ~ection 3 (c) of the Texas

Code of Criminal Procedure and-as requested in relator's letters

(Exhibits "A" through " "

( 3) CAUSE NO. 1278565-A

Emerson Handy § IN THE !79th JUDICIAL TDCJ7ID #1792077 § § v. § DISTRICT COURT OF § § Harris County District Clerk: § ·Harris County, Texas

Order

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

application for writ of Mandamus and it appears to the court

that the same should be

Granted

It is therefore ORDERED that the District Clerk shall imm-

ediately transmit to the Court of Criminal Appeals a copy of

the application for writ of habeas corpus, any answers filed,

and a certificate reciting the date upon which that transmittal

was made·.

Signed on this the day of I 2015. ------------------~

Presiding Judge

,, CAUSE NO. 1278565-A

The State of Texas §

§

County of Harris §

Affidavit

I swear under oath that the facts and allegations in the above application for writ of Mandamus are true and correct.

Emerson Handy Relator

Signed under oath Before me on this the ~Day of _

~\A~ , 2015.

••• • •• • • • •• •• ••• •• • • • • •• • Notary public in and for ·e-·-- • -·:::::-....:.:_-_,_ CAROL M. JENNINGS• : .;:_(A··y: Not~ry . the State of Texas

. . Public. Stat!! of T.exas : -~:-... 'W _/_,- • • · ·.-:--:.. c·~·> - - My Commission Expir!!s 07 -09·20 1a • • Qa..ro I N\.:J:ef"\n in§"> printed or typed name ·····~··················· ~~~· MY COMMISSION EXPIRE

Certificate of Service

---~I--'-h"-e~r~e~b..._Y_,......._c~e.;;;...r~t...;;;i...;;;f:.....~Y.__~t-'h-'-a-'t'--a'-'-...;;t-"r-'u-'e'--c.;;;.....:..o..._p....y__,o:_;f;;;..._,;:t _he above _A p p ll_S: at· for Writ of Mandamus was served o~ 'WR;i Q~t{;tir by "placing a copy in the u.s. mail addressed to: MR . Abt: I Aea,s~n '. CJER \.:__ PD. 8o'Jt L 23 . ~ f' A:t.stiJ\{ on this the 'I£';<'A.5 'lb'7fl ~ day of __s~·-----' 2015.

!:r,1gM-!91,1 ~~. /s/ relator ·r