Heintz, Nicholas G.

• Court: Court of Appeals of Texas
• Decided: August 4, 2015
• Docket: WR-83,695-01
• Status: Published

Opinion

~ ?, tc,Cf5-0 I RECEIVED IN COURT OF CRIMINAL APPEAL&

AUG 0 4 2015 CAUSE !IJO. Al&llAccs&,Ote* NICHOLAS G. HEINTZ IN THE T.EXAS COURT Vs. OF CRDITNAL APPEALS STATE OF 1'EXAS

E~~RGENCY APPLICATION This document contains some FOR EXTRAORDINARY 1.-JRIT pages ~hat are of poor quality at the t1me of imaging. OF F.ABEAS CORPUS

COI~S Nm-J, Nicholas G. Heintz, the Applicant in the above-captioned

cause, who, 1,d.thout assistance of. counsel, respectfully moves the Court of

Criminal Appeals, pursuant to Tex. Code of Crim. Proc., Chap. 11, Art. 11 .o5., to invoke original jurisdiction over this Emergency Application for'&-

traordinary ~~it of Habeas Corpus.

Applicant initially filed his Habeas Application Hith the 7th Judicial

District Court, Cause No. 15-0959-A, on 6 Nay 2015~ Hmv-ever, to date (82

days hence), there has been no hearing (there ,,ras a hearlrlg set for 1 2 June

2015 and vacated that same date because the District Court T·ras of the opin-

ion it lacked jurisdiction to hear the claims raised in the Application).

~· provided copies of initial Application and motions for hearing, ~-rith

attached ~hibits.

A revievr of the initial Application 1<-d.th the 7th District Court of Smith Connty 1dll reveal several cognizable claims. Here in the instant

Application before this Honorable Court, Applicant seeks relief from the

two (2) most compelling claims:

1) Immediate release from the almost 300-day illegal restraint in

his liberty by Smith Connty Authorities for an ongoing,: .trial court sane-

tioned, prosecution of an l.Ulindicted criminal accusation that is statute

of limitations barred.

2) I:mmediate reversal of the Unconstitutional (presumption of in-

nocence violation) and nnlmvful (contraT~J to state statute) registration

of Applicant as a sex offender by Smith Connty Authorities, commencing

on 14 October 2014, in current effect, and set to remain in force through-

out the remainder of Applicant's life.

Applicant is in poor health, no longer able to maintain employment

1-lhich generates sufficient income to support his family 1-Jith and pay

community supervision fees along 1dth bail bond installments.

WHEREFORE, Applicant prays tl1is Court 1-Jill forthvr.Lth grant the

relief he seeks, the justice he is deserving of and entitled to.

·-fA DATED this~day of July, 2015.

2 Nicholas G. Heintz, Applicru1t ~Vi thout Assistance of Counsel 22544 Hickory Iene IV.d.neola, Texas 75773 (903) 638-4383 AFFIDAVIT

I, Nicholas G. Heintz, being first duly s-vrorn, depose and state as 11 follot·JS: I have read the foregoing Emergency Application for Ex-traordi- nary 1--.irit of Habeas Corpus and Si·rear that the allegations of fact contained therein are true and correct, according to ll'lf belief 11 •

DATED this)$/.;/.. dey of July, 2015. ) , / d. ~ 7 / · {)

--/j~~-l~fT

SUBSCRIBED AND S"HORN TO before me tlriS'~ day of July, 201 5, by Nicholas G. Heintz.

CERTIFICATE OF SEl~viCE

On thi~ day of July, 2015, the undersigned caused to be mailed vla the u. s. Postal Service a true and correct copy of the foregoing Emergency Application for Ebctraordinary Uri t of Habeas Corpus Mr-. Ken Paxton, Texas Attorney General, Office of Attorney General, Post Office Box 12548, Austin, Texas 78711-2458~

3 r r- FILED ,__.,JfS ROGERS DISTFiiCT CLERf'(

l015 JUl2 1 AM If: 36 C.c')JSZ :\JO. 1 5-0959-A SMITH COUNn; TEXAS lliCI-IOL.43 G. ECSL·?rZ :m ~ 7 !;h JTT!lTC; H .. L -~- DEPUTY -;~ Vs. DISTRICT COG~T 0?

Applica;.-,_ t in. the above-captioned cause, ;;i!1o filed his pre-t.rial A;::Yplica tion

For .8:-ctraord:Lll.a.r-.f ~L"i t of He>.beas Coruus 1-r:ith this Eonora.ble Com-t on

f:.'"'o!J tl1.e 1JJ1l a1Ef\ll restr~int -in_ l1is li1)erty dL.le to tl1e cog:aizable iss·ues 1 raised of limite:,.tions-b2.rred ~'rosecution for the cha:q:;ed 2.ccusation of

failure to register as a sex offender <:1:r1d of illegal c;_t.:c-rent Texas sex

o?fencler registl,8:Gion requi:!.~ernent. 1 .tie see . :s c..clC!.l t~ona_ -· ' 1 -- • • . -l cogl1lZaD e relief

f:;_ryom a Yiolation of his Constitutionally 17rotected ?ight to a pres-~Lnp·i-:,ion

of ~ n_JlOC811Ce •

Ex 1Je..rte 3rJith, 135 :3.>i. 3d. 8.37, :~92 (Tex. Cr:Lm. App. 2006):

Octr decision in ''::c p2.r'c.e ':le-i se succ-i :1ct.ly su:-n;!a.rizes our ce.se-lm-r on the types of cla·i "HS tl12.t are co&,r•-i zable L11 a }retrie>~

~r.cj~ t of b.2.beas coJ... .?,~S. See E:x: Dart,e >Jeise, 55 s.;J. 3d 517, 619--20 (Tex. Cr. App. 2001 ) • the general ~)r-c nci?le that a claim is cogrd.zable LTJ. a pretria~ 1-Jri t of habeas corpus if, resolved in the defendant 1 s favor, it would d.eprive the trial court of the pmrer to proceed and result in the appllant's immediate release. See Weise, 55 s.w. -}d at 619. 11

HEA.RllfG SET AND VAC.A'l'ED

A hear:L.'"lg on the .Application was set for 1 2 June 201 5. See •

.on t...~e appointed date and time, Mr'. Hemtz Has present ;n the

courtroom, prepa_l'8d to proceed. The Court, ho-wever, vacated the

hear:L'"l.g. Because it felt .f'ur"'-L

jurisdiction of District Court appropriate to hear &'"ld deterr:TLne pretrial

claims Nr·. Hemtz raises in his Habeas Application.

JURISDICTIONAL Aur:HORITY

Review 1 5 June 201 5 11 1'-illiON FOR HE...A..ItCN"G 11 , 1-.ri. th supportillg authority

referenced therein, filed by Ivlr:. Heintz with the Court on the sa'ne date.

See. Dodson v. State, 988 s.w. 2d·833, 835 (Tex. App.--San Antonio

1 999, no pet.) : 11The cou_-r>ts of appeals have no origillal habeas corpus

jurisdiction ill cri.11ri.nal matters; their jurisdiction is appellate only 11 •

See also Elc parte Hawkins, B85 S.',f. 2d 586, 588 (Tex. App.--El Paso 1994,

no pet.):

••• this Cou...--t does not have original habeas corpus jurisdiction LTl criminal la-vJ matters. See Elc parte I.Btds, 663 S.~l. 2d 153,

2 154 (Tex. App.--.Amarillo 1983, orig. proceeding). That jurisdiction rests :instead vlith the Court of Criminal Appeals, the District Courts (emphasis added), the County Cou...-r>ts, or a.""l.y judge of said Courts• ·Tex. eode er:tm. Proc. · Arm• art. 11.05 (Vernon 1977); see Tex. Const. art. v, Sees. 5, 8, 16; Tex. Gov 1 t Code Ann. Sees. 25.0003, 26.047 (Vernon 1988).

COG!fiZ..l\.BIE CLAHS

The registration requirement for the "reportable conv-iction 11 from

uta.l-1 that the State is rel;ying upon :in its 1 prosecution of 11r'. Hein.tz for

havi_ng failed to register expired on 23 :November 2009. See. E:x..l'libit 11 1"111

of Application; ae:.;:I1iration of prison sentence for his 1983 conviction court

case #831916801 on 11/23/1999 with a ten year registration requirement to

11 I 23/2009 11 (emphasis added) • Utah Code A.nn. 77-27-21 .5, 11 All persons ha-ving a duty to register

shall, register for the du.ration of sentence and for ten years after

termination of sentence ••• 11 (emphasis added). 1'The duty to register for

an extrajurisdictional registrant exoires on the date the person 1 s du.ty

to register ~orould expire rmder the la1•TS of the other state ••• n Tex. Code

of C~-m. Proc., Art. 62.052 (b). (emphasis added).

State 1 s 11prosecution is barred b-.f the statute of limitations 11 •

Ex. parte Smith, at 890. Furthermore, 11 ••• i f a liberty ii1terest is created b-.f a statute, due process concerning that liberty :interest

requires notice and a meaningful opportunity to be heard. La~nance v. Erickson, 522 u.s. 262, 266, 118 S. ct. 753, 139 L. Ed. 2d

695 (1998); Ex parte Geiken, 28 S.'tl. 3d SS3, 560 (Tex. Cr:i_m. App. 2000).

Ex oa.....-rte Werne, 118 s.~-l. )d 833, 836 n. 1 (Tex. App.-:-TeJCa.rkana 2003, no pet.).

n One accused of a crime is entitled to have h..is guilt or :L"'lllocence

determined solely (emphasis added) on the basis of the evidence introduced

at triaJ.. 11 Taylor v. Kentucky, 436 U.S. 478, 98 s. Ct. 1930, 56 L. Ed

2d 468, 1 97 8. For SrrrLth County Sheriff 1 s Office to register ¥r. Heintz

as a sex offender in Texas i'd thout indictment, 1-Jithout trial and ,,r.i thout

a conviction is a flagra..11.t \1-j_olation of th..is fundaznental Constitutional

Right.

:t-fALIC IOU3 PROSECD""TION

Not;ri thsta..11.diTl_g the state 1 s svrorn duty to rrsee t..hat justice is done 11 ,

Tex. Code Grim. Proc. Art. 2.01, it (t.."le State) has !-;norringly allowed ~11:'.

Heintz to lc:mguis...~, lLl'llai-rfully restra:lned in his liberty, for 291 days,

vli thout indictment; kno-vring that any prosecution of lt'!r. He:L"1tz is barred

by the statute of lim:i.tations.

CO~~RrTSD OFFENSE

Ironically, the "reportable conviction" from the State of utah is

for an 11 offense 11 that did not actually occur. It is solely a proctu.ct of

vengeful contrivance. See. su.pporting docThuentation, attached hereto as

EK.hibit 11 B11 •

4 ',

matter be set.

Nicholas G. Heintz, Applicant \iithout Assistance of Counsel 22544 Hickory Lane ~lineola, T~~as 75773 (903) 638-4383 AFFIDAVIT

I, :Nicholas G. Heintz, being first duly sworn, depose and state as follm·rs: ur have read the forego:L..11.g Renm·red Jibtion For Hea.r-l.Jl..g and swear that the allegations of fact contained therein are true and correct, according to r1ry belief o 11

DATED this :J I ~+-- day of ·]:j /,/ '2015. I

SiJBSCRIBED Alm s:-rmu-r TO before me this 2,1 day of July, 2015, by

C&'i.TIFICAIS OF S3li:"ITICE "I -s.f day On t.his <>' ~ ~ .· · · d e l ivere d a t rue of July, 2u1;,, 1jhe u.YJ.dersJ.gne d ·nand.- and correct copy of the foregoing Henewed 1-'btion For Hea.ri.....•.1g to i'lr'. D. rhtt B:Ln..gham, Smith- Connty District Attorney, 1 00 North Broadway Ave., 4t..h Floor, Smith Cou11ty Courthouse, '1.'-Jler, Texas 75702.

5. CAUSE NO. 15-0959-A

STATE OF TEXAS § IN THE 7TH JUDICIAL § vs. § DISTRICT COURT 0~ § NICHOLAS G. HEITZ § sM'ffifcotiNTY,-TEXAS

ORDER SETTING HEARING IT IS ORDERED that the above-styled and numbered cases are SET for hearing on:

I Application for Extraordinary Writ of Habeas Corpus in Heitz -

for Friday, June 12, 2015 at 11:15 o'clock a.m. in the 7th Judicial District Courtroom located on

the second floor of the Smith County Courthouse in Tyler, Texas.

IT IS SO ORDERED.

SIGNED this 12th day of May, 2

cc: State

Nicholas Heitz 22544 Hickory Lane Mineola, TX 75773 ~ \019 :3: ~ •f'-5 :iJoo -.C: () .::!9

:1 ~~ I.. rm J- - ---

.:' ~ w 0. • I REED PAYNE PHD · Licensed Clinical Psychologist 288 Comprehensive dinic Brigham Young University Provo,U~ 37~79

June 11, 1993

·r-- r Board of Pardons [..:: .... . 448 East 6400 South Suite 300 Murray, UT 84107

Dear Board of Pardons:

As you may know, l·was called on by the State some time ago to do a psychological evaluation of Nicholas Vaughn Banner in conjunction with a charge of escape from the Richfield Jail where he was incarcerated as part of a prison sentence. · I had spent an inorcJjnate amount of time with Mr. Banner and his case. later it was necessary for me to travel. from California back to Utah from an academic sabbatical in order· to testify in Mr. Banner's case. Subsequently he was found not guilty of the jail escape, in part, due to Post- traumatic Stress Disorder as a consequence of severe beatings in prison on two different occasions resulting in surgery and severe injury~ Other incidents of harassment have aggravated and prolonged Mr. Banner's recovery. I understand that Mr. Banner made on appearance before the Board on December 30, 1992 where the Board determined to grant a release on December 14, 1993 with the stipulation that he, Mr. Banner, enter and complete the sex offenders program at the Bonneville half-way house. This, however, presented a problem which I would like to address in a helpful way if possible.

From the outset of his 9* year incarceration he has steadfastly professed his innocence of the offense charged and convicted. Under these circumstances, the half-way house director has recently acknowledged that Mr. Banner will not be accepted into the sex offender program and wanted to refer the matter back to the Board for a hearing. It has also been suggested by his caseworker that a Special Attention Request be submitted to the Board asking that the halfway house sex offender program requirement be dropped from the conditions of parole. Mr. Banner concurs with this later approach~ This letter constiMes an endorsement of the suggestion that such a requirement be deleted from conditions ·of release and parole.

The basis for this endorsement might inducle ~y points but I will highlight the onE!§ most relevant. There is grave doubt in my mind that Mr. Banner is a pedophile. I have gone over his records carefully and in concert with his own testimony, with testing, and with all information available it is extremely doubtful that this man is a pedophile. Another point ~ -· ""that is WOI1hy of consideration is his professed innocence.. Whil::: know that this is not an adequate or even meaningful reason in most cases to apply with any consideration, I urge the Board- to c:onSider the possible miscarriage of justice. There is an exceptionally good possibility that his case indudes a female friend who felt she ~ spumec,llly Mr. Banner and provided a fabrication of the charges. Subseque11t evidence from out$ide the prison as well as extensive detail of his accounts cast more than a reasonable- doubt on the -ch~e under which he is currently incarcerated. More than_tflat this.examinerisamvina!dthat- Mr.. -Banner -not only states -hiS- -innOceilCe-l:i-.:li is firmly convinced of his innoa!nCe. Therefore, the only way for him to maintain any integrity is to go with the truth. Otherwise he would have to violate his own sense of right and wrong tO conform to the request of the Board. let me hasten to acknowledge that in almost all cases we are dealing with denial when such protests are registered, but in this .case I strongly urge the Board to consider the possibility of an exception. In any event, it would be both unwise and unprofitable for Mr. Banner to be forced into a treatment prOgram where both he and others would deem the process inappropriate..

It would also seem that his period of incarceration for almost 10 years is an exceptionally long period of time and unusual. This coupled with the severe beatings and harassment and isolation in Mr. Banner's caseseems to be very unfair and excessive as far as punishment is concerned.

Finally, I would like to state that Mr. Banner does not strike me as being of danger to himself or others. There is evidence of psychological stability and strength of character such that a reasonably favorable prediction might be made regarding his parole. The one negative factor is, of course, his long period of incarceration. In my investigatiori of Mr. Banner's history, psychological functioning, problems and progress over time I have found his reporting, his copious note takin& details provided and information to be extremely · accurate. He ~ to have a high regard for the truth in spite of obvious disagreement by others who have been d~ermined to work against his interests. Mr. Banner has exCEllent potential. My concern is that he underestimates himself. Considering the length of time he has been away from society it might be helpful to move him rather quickly into a halfway house situation so that any adjustment problems might be ameliorated within a structured situation and Mr. Banner can be given the benefit of the correctional system in integtating himself back into the community.

If I can be of any further help in this case please feel free to contact me. My address and phone number are on the letterhead.

m~"' ~"''! I. Reed Payne, Ph.D. fb h Clinical Psychologist

cc: Sylvia Colton, Attorney at law Nicholas V. Banner, #17049 ..- AFFiDAVIT OF NEAL K. OSTLER

STATE OF UTAH } )ss. COUNTY OF SALT I.AXE )

COKES NOW Neal. K. ostl.er upon his oath deposes and

1. Tbat duri.nq the months of 1988, :t _ was

employed by the utah state Department of Corrections_ as a substance

abuse -counsel.or, assigned ~ the Uinta Facility at the Utah state Prison in Draper w-...re I met and beca.1lle acqu.aint.ed with inmate Nicho~as- v. Banner and his case.

2. At first :t believed Mr. Nicholas Banner to be just another wJdninq, innocent profess:inq, mal.adjusted inmate. However, as the weeks progressed and .:t l.earned more about the events and_ - circumstances sw:xoandi nq tbe al.l.eqed offense ~qainst Hr. Banner,

:t began to perceive him otherwise.

3. Upon discovery of the names of the parties involved

i.n the al.l.eqed incident, the shock of r~tiol! aetna lly took my

breath away and I needed to sit down -in order to retain my

composure. I was total.l.y convinced of Hr. Banner's innocence .. 4. That prior to my empl.ojment with the prison I was

·a sa.J.t Lake county Sheriff • s oeputy fo~ over 15 years. Whil.e I was ~ a Sal.t Lake- County Sheriff Deputy I witnessed a ful.l. compl.ement of unethical. and u,nl.awfu.L behavior on the part of a number of •old -. school." . pol.:ice officers .. - :t witnessed -fabricated evidence r

col.l.usion of testimony, and both initiated and unnecessary physical.-

eonfrontation (abuse) • s. J:t was with this knowledge tbat the case against Mr. Banner became an apparent case of ccmspirac::y and duplicity on the -part of the al.leqed victi.ll.'s grandfather; Ron cranfill, a raDkinq

- Sheriff's ~ficer, with wbaJa x· had IIIlDlEmOUS experience. -6. :I mysel.f bad a persona1 conflict with this ~ over ' . ,..~

- ----- ----- -· ----- - - - --- - ----- --- -- - -- -- -- - -· --- a mutual :friendship that had developed~ his adul.t daUCJhter, susan Cranfill, (Mr. Banner's qirl.friend, and the complainant in h.is criminal. prosecution) and mysel.f. SUbsequent to Hs. Crailfil.1

father • s warniDq - that :I stay· away from Jfs. c:ranfill, :I UDderwant 2 years of continual. battering and harassment from Lieutemmt Cranfill, who wa.S then my Division CO'Bimander. xr. Cranfill made a personal. vendetta out of t.rying' to get me fired from the Sher~•s Office, wbicb. di.d not cease until. xr. c:ranfil.l. ul.tilllate1y retired in frustration.-

OWinq to my l.cmqstandj.nq empl.oyment- record as a 7. - . ~ ~

respectable law enforcement officer, I manaqed to emerqe froJa Lt. cranfUl' s spiteflU attempts to sallotage my career, without havinq received even a sinqle day's suspension.. Whereas, the average citizen such_ as lf:r. Banner_, who happened to incur the wrath of Lt.- Cranfill, over havinq jilted his dauq4ter SUsan, coul.d expect to ~be set up on cont:ri~ criminal charqes as a resul.t. 8. Moreover, xr. BAnner coUl.d- expect to receive ~

treatment within the penal. system from--fel.low officers of the •qooci ole boy" fraternity, of which Mr. Cranfill vas a l.eadinq member. 9. I conclude that Mr. Banner is innocent based on a

personal ltnPW:l~~ of mr. Cranf.il.l.'s vindictive, ruthless, :_ unrel.entinq 'JIIa.DDer. I base this on a review of the re<:erd in the matter which contains nothing more than a UDSUhstanti.ated

a11eqation. 10. This inmate's claims of wrongfu1 conviction, and his

belief that the assau1ts he has been a victim of durinq his incarceration and that the ongoinq threats against him may be attributed to Kr. cranfill and his inf1uence, shou1d be afforded pro)?able credence. DATED this pl2PDday of December, 1991 •.

SUBSCRIBED AND SWOBN to before me this P4 day of December,

·.~,~m.-e~ otary Public __ · Residing- At S~S9 Z/0/1 G;.. ~;~..,,I t/i CAUSE NO. 15-09)9-A

EICHOL.I\.S G. HEINTZ IN 'L>-IE 7'E..f JUDICIAL * DISTP..ICT COURT OF * STATE OF 'YZL.4S * Si•ITTH COUlTFi, TEXAS

OHDER TO DISJ.ITSS

On this _____c~~ of_.__________ , 2015, ca~e to be he2xd Applica~t 1 s

Application for Ex:traorcli.nar.f 'drit of Habeas Corpus to Disr:ri..ss the Crim:Ln.2.l

Accusation charged against him; to restore his Liberty, l.TP..restrained, and

it appears to the Court said relief should be G?..AWl'ED.

IT IS 'EI-J:E.REFOP.E OPDBRED that the charge of Fail to Comply i·r.i. th Sex

Offender Registration T~?e/AD~ually be dismissed, w~th prejun~ce.

IT IS 'E.'-W..EFOP.E ORDERED that the Appliccu1.t, :Nicholas G. Heintz, is

not required to register as a sex offender i..~ Texas.

HONOR:LBIE r:ER.R:i 1. P:t.J3SELL Judge Presid:i.rl..g CAUSE NO. 15-0959-A

NICHOlAS G. HEINTZ IN TBE 7TH JUDICIAL * *-~ Vs. DISTRICT COURT OF * STATE OF TEKAS * SI>f[TH COUNTY, TE:US * ORDER SETTING HEA....'illlG

IT IS ORDERED that the above-styled and n~mbered case is SET for hearing

on: Application for Ektraordinar;r ~m t of Habeas Corpus in F.e:L"'ltz

for _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ in the 7th Judicial

District Courtroom locat,ed on the second floor of the Srnith Cm:mty Court-

house in ~ler, T~

SIGJ:.TIID this _ _ day of_ _ _ _ _ , 201 5.

HONORABlE KER.crr 1. RUSSELL Judge Presiding

Nicholas G. Heintz 22544 F~ckory Lane Mineola, TX 75773 /Jou/dytJU / ' /u-~L K-~ ~-A( ~L C!our-/ ~~b V?d5ed ~""(Je-~'7 /-?p ;j""

?I<) w- ;«',#v .swor~ dtJcrJFYI"-" f:s, 77(;/l~/tJV, o>,-~ {!_l!_r f; ~

rfJ~47q fAfECE~VED ~N \COURT OF CRIMINAL APPEALS AUG 04 2015

Ab®iAcosta. Clerk CAUSE NO. 15-0959-A Z0/5 JUN 15 IU ltfl 9: 27 NICHOLAS G. EBINTZ, -X- . 'rf:m:. IN SAAm..J ''Gt~"",.­ 7tli-' ............. '¥,~ Applicant, * BY * DISTRI~ Vs. * SMITH COlJNTY, TEX.AS * STATE OF Tz:L>lS, * Respondent. * * ~.DTION FOR HEARING

COf.:iES J:JOW,. Nicholas G. Heintz (hereinafter 11Nr. He;ntz 11 ) , the

Applicant i..~ the above-captioned cause, who respectfully moves the Col.U"t

to schedule a heariP~ on the application. PUrsuant to Texas Code of

Crim:LYlal ~"'cedu...-v.e, Title 1 , Chapter 11 , Art. 11 • 11 , 11 The time so

appointed s:b-all be the earliest day ;;.hlch the judge can devote to hearing

the ca:use of the applicant. n

Art. 11.05. BY WHOM "WPJ:T FAY BE GRANTED.

The Court of Criminal Appeals, the lli strict Courts ( empha~s added), the County Courts, or any Judge of said Courts, have power to issue the vl!'it of habeas corpus; and it is their duty,· upon proper motion, to grant the vl!'i t under the rules prescribed by law.

A significant number of pretrial writ of habeas corpus applications,

addressing various grounds, are filed w"ith and heard by trial courts. For exa.mple. See. attached Opinions in Edlvard Jerome Green,

Appellant v. The State of' Texas, Court of Appeals of Texas, Fort \forth,

No. 2-98-553-CR, decided: July 22, 1999; and Ex: parve Cory Howard,Court

of Appeals of Texas, San Antonio, No. 04-0S-00157-CR, decided:

November 23, 2005.

In Hm·rard the Appellate Court articulated that 11 A v-n::it of' habeas

corpus is an extraordinary 1-r.rit. E:.c parve 1-i:lise, 55 s.~-1. 3d 616, 619

(Tex. Grim. App. 2001 ). 1 Neither a trial court nor an appellate court

should entertain an application f'or writ of' habeas corpus -vmen there :is

an adequate remedy "a

restrained to be entitled to habeas corpus relief. 11

?..e.ferriD..g back to Title 1, Chapter 11 of the Texas Code of' Criminal

Procedure, under Art. 11 .65 (c) 11 for the purposes of tb..is chapter, an

applicant released on bond under t:b; s article remains restrained in his

liberty. 11

f!.T. Heintz is 11 illegally restrained n in that: 1) the unindicted

Smith County charge (Ex. A of Application) lodged against him (.failure to

comply with sex o.ffender registration) is hinged upon a Utah conviction

l·ri.t..l-:1 a registration requirement >vi'...ich is statutorily expL.-ed (Utah Code

of Criminal Procedure, Sec. 77-27-21.5 (9) (a)); 2) D P S in Austin

determined :L.'1 November of 201 2 (upon }ir'. Hei.Tltz 1 s entry into the state)

that l•.T. Heintz -v-m.s not required to register in Texas because a:n::r and all

2 previous registration reqirements fl.-ad expired; and, 3) his

Constitutionally protected Due Process entitlement to a preffiLmption

of innocence was egregiously violated by the Smith County Sheri_ff' s

Office -when, t1relve (12) days following his arrest for allegedly

having failed to register, on 2 October 2014; 't;·ri.thout an Indictrr.ent,

vri. thout a trial and without a conviction, said "law enforcement"

agency 11 directed 11 Nr. Heintz to register.

A habeas corpus action is separate from the proceeding out of Uolhich 11

it arises and its purpose is vastly different. Habeas corpus is by

definition an extraord:Lrtary writ in 'Which the restraint of one's liberty

is challenged as illegal. See Tex. Code Cr:i.ln. Proc. AP..n. art. 11 .01

(Vernon 1977); Saucedo v. State, 795 S.~v. 2d 8,9 (Tex. At"':lp.-Houston 14 lli.st.

1990, no pet.) 11 Green, hereto attached.

aAdditiona.lly, the purpose of a pretrial habeas corpus application

is not to facilitate trial, but to stop trial and seclU'e immediate

release from confinement. 11 Elc parte Shumake, 953 s.r;~. 2d 842, 846 n. 8

(Tex. App.-Austin 19~7, no pet.).

In Nr.·. Heintz 1 s case the purpose of his pretrial habeas corpus

application is to stop the State from any further pursuit of its illegal

prosecution of Mr-. Heintz and seclU'e immediate release from restraint.

~.JHEREFOF.E, Y!t". P...eintz respectf.'ully requests that a hearing in this

matter be set. DATED tb-i s _ _ day of June 201 S.

Applicant

Nicholas G. Heintz, Appl-icant \ti.. thout Assistance of Connsel 22544 Ficko~ Lane Mineola, Texas 75773 (903) 638-4383

I, Nicholas G. Heintz, bei..."lg first duly svrorn, depose a.11d state as folio-vis: 11 I have read the foregoing :i'.btion For Hearing and Siiear that the allegations 11 of fact contained therein are true and correct, accordi.."lg to rrry belief.

DATED this.___ d.ay of Ju..-·1.e, · 2015

SUBSCRiffiD AND S"WORN TO bef."ore me this ___ day of June, 201 5, by Nicholas G. Heintz.

NOTAl.ifi' PUBLIC

C~TIFICA'l'E OF 3:2:Ir'liCE

On this _ _ day of June, 2015, the nndersigned 11.a."'1d-delivered a true and copy of the foregoing l-'btion For Hearing to l'lr. D. :P.att B:L.'lgha.m, S:mith County District Attorney, 100 North Broamra:y Ave., 4th Floor, Smith County Courthouse, ~Jler, Texas 75702

4 · HOWARD v.l FindLaw Page 1 of2

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FincLaw Case1aw Texas IX Co.. ,.~_pp HOWARD v.

HOvVARD v. ?rint New Font size:

Court of Appeals ofTexas,San Antonio. Ex parte Cory HOWARD.

No. 04-05-00157-CR.. Decided: November 23, 2005 Sitting: CATHERINE STONE, .Justice, SARAH B. DUNCAl"<, Justice, REBECCA SIMMONS, Justice. George Scharmen, San Antonio, for appellant. Kevin P. Yeary, Asst. Crim. Dist. Atty., San Antonio, for appellee. MEMORANDUM OPINION

In this appeal, Cory Howard seeks reversal of the trial court's denial of his application for a pretrial writ of FindLaw Career Center habeas corpus. Because the ground asserted in the petition for writ of habeas corpus is not cognizable in a pretrial writ application, we affirm the trial court's denial of habeas corpus relief. Attorney Corporate Counsel A writ of habeas corpus is an extraordinary writ. Ex parte Weise, 55 S.W.3d 617, 619 (Tex.Crim.App.2001). Academic Judicial Clerk "Neither a trial court nor an appellate court should entertain an application for writ of habeas corpus when Summer Associate there is an adequate remedy by appeal." Id. Further, an applicant must be illegally restrained to be entitled to lntem Law Librarian habeas corpus relief. I d. "If we conclude the grounds asserted in the petition for writ of habeas corpus are not cognizable, then we must affirm the trial court's denial of habeas corpus relief." Ex parte Schoolcraft, 107 [Search Job~ Post a Job 1 View More Jots S.W.3d 674, 676 (Tex.App.-San Antonio 2003, no pet.). View More

Howard is charged with committing the offense of driving while intoxicated on September 8, 2003. The indictment alleges that Howard has been convicted of DWI on two previous occasions, January 19, 1989 and October 14, 1991. The effect of this allegation is to change the primary DWI offense from a misdemeanor to a third-degree felony., Howard filed a pretrial writ of habeas corpus, asserting that his previous DWI convictions cannot be used for enllancement purposes because the statutory language permitting such enllancement did not exist at the time of his previous convictions.. According to Howard, using his prior convictions to increase the punishment for his 2003 DWI offense would thus violate the ex post facto proscriptions of the United States and Texas Constitutions.

Howard's complaint is plaialy an "as applied" challenge to the constitutionality of the enllancement statute in effect at the time of the primary DWI offense-Penal Code section 49.09(e). See Ex parte Woodall, 154 S.W.3d 698, 700-01 (Tex.App.-El Paso 2004, pet. ref d) (recognizing argument alleging that a city ordinance is unconstitutional because it is an ex post facto law is "an 'as applied' challenge to the constitutionality of the . ordinance."). A pretrial writ of habeas corpus, however, may not be used to address an "as applied" challenge to a statute. Id. at 701. "As applied" challenges must be litigated in the trial court and adjudicated on direct appeal. Id. Because the issue raised in Howard's petition for writ of habeas corpus is not cognizable in a pretrial writ application, Howard's sole appellate issue is overruled. FindLaw's on Facebook! L1ke Fmdlaw now fer :IB1ly updates -Jr; top1cs The order of the trial court denying habeas corpus relief is affirmed. for Legal ?rofess1ona!s faceoaok ccm!fir:d!awlegalorof::sslon.s:ls

FOOTNOTES Got Gadgets? Get ~he latest em legal t=cn ~n :=molaw'~

1. The offense of driving while intoxicated is generally a misdemeanor. Tex. Pen. Code Ann. § 49.04 Teci1nCiogi.st blog. (Vernon 2003). The offense becomes a third-degree felony if the defendant has previously been convicted b!cgs.findlaw ::cmttechnologlst

two times of any offense relating to the operating of a motor vehicle while intoxicated. Id. § 49.09(b)(2) Need a New Take on the Nine? (Vernon Supp.2004·200S). Read FindLaw·s Suor~me CoL:rt 3log :10W 1 ologs.findlaw com,suoreme_::ourt

., At the time of Howard's indictment for the primary DWI offense, a conviction could not be used for purposes of enllancement if(1) the conviction was a final conviction under Subsection (d);(2) the offense for

http://caselaw.findlaw.com/tx-court-of-appea1s/1230589.html 6/13/2015 HOWARD v. I FindLaw Page 2 of2

which the person is being tried was committed more than 10 years after the latest of:(A) the date on which the judgment was entered for the previous conviction;(B) the date on which the person was discharged from any period of community supervision on which the person was placed for the previous conviction;(C) the date on which the person successfully completed any period of parole on which the person was released after serving a portion of the term to which the person was sentenced for the previous conviction; or(D) the date on which the person completed serving any term for which the person was confined or imprisoned for the previous conviction; and(3) the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2).Tex. Pen.Code Ann. § 49.09(e) (Vernon 2003). By contrast, at the time of Howard's conviction for DWI on October 14, 1991, a conviction could not be used for purposes of enhancement if:(1) the conviction was a final conviction under the provisions of Subsections (g) and (h) of this article and was for an offense committed more than to years before the offense for which the person is being tried was committed; and(z) the person has not been convicted of an offense under Subdivision (2), Subsection (a), Section 19.05, Penal Code, or Article 67011-1, or Article 67otl-2, Revised Statutes, committed within 10 years immediately preceding the date on which the offense for which the person is being tried was committed.Act of June 16, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. laws 1568, 1576, repealed by Act of June 19, 1993, 73d Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. laws 3586, 3704.

Opinion by CATHERINE STONE, Justice.

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http://caselaw.findlaw.com/tx-court-of-appeals/1230589.html 6/13/2015 GREEN v. STATE I Findlaw

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Findlaw Caselaw Texas TX Ct.l'pp. GREEN v. STATE

GREEN v. STATE Print Font size: A A Reset

Court of Appeals ofTexas,Fort Worth. Edward Jerome GREEN, Appellant, v. The STATE of Texas, State.

No. 2-98-553-cR.. Decided: July 22, 1999 Panel 0: DAY, LIVlNGSfON, and DAUPHINOT, JJ. Chris Raesz, Denton, for Appellant. Bruce Isaacks, Crim. Dist Atty., Pamela J. Moore, Gracie Rodriquez, Chance Oliver, Asst Disl Allys., Denton County, Matthew Paul, State Pros. Atty., Austin, fur Appellee. OPINION FindLaw Career Center Appellant raises two points alleging that the trial court erred in denying the relief sought in his pretrial application fur writ of habeas corpus. We dismiss furwantofjnrisdiction. Attorney

I Corporate Counsel background Academic Judicial Clerk Summer Associate Appellant was charged with evading detention. He filed a pretrial application fur writ of habeas corpus lntem alleging that the provision under which he was charged, penal code section 38.04. is unconstitotionallyvague. Law Ubrarian tex. Penal Code Ann.§ 38.04 (Vernon 1994&Vemon Supp.1999). On September9, 1998, the trial court held a hearing and denied appellant relief. On November 2, 1998, appellant then entered into a plea-bargain iSean:h Jobsj Post a Job View More Jobs agreement in which he pleaded nolo contendere in exchange fur 45 days' confinement. View More

Discussion

There are two ways a defendant can challenge, in the trial court, the facial constitutionality of a statute. Appellant may file a pretrial motion asking the trial court to declare the statute unconstitutional. See, e.g., Williams v. State, 937 S. W.zd 479, 491 ffex.Crim.App.19'}6) (addressing on appeal the claim that the trial court erred in failing to grant the defendant's pretrial motion to declare death penalty scheme unconstitutional). When a defendant files a pretrial motion, any ruling on the motion is interlocutory, and is not subject to immediate appeal. See Ex parteApolinarv. State, 820 S.W.2d 792. 794 (Tex.Crim.App.1991); McKown v. State, 915 S.W.2d 16o, 161 ffex.App.-Fort Worth 1996, no pet); see also Scottv. State, 158 Tex.Crim. 69, 2S3 S.W.2d275, 276 (1952) (interlocutory orders not appealable).

The other procedure fur challenging the constitutional validity of a penal code provision before trial is "ia a pretrial application forwritofhabeas corpus. See, e.g., Ex parte Boetscher, 812 S.W.zd6o0, 6o1 ffex.Crim.App.1991); Ex parte Meyer, 172 Tex.Crim. 403, 357 S.W.zd 754. 756 (1962). In fact, the very nature of the claim that appellant makes here-that a statute is unconstitutionally void fur vagueness-has been addressed on appeals from pretrial applications furwritofhabeas corpus. See Ex parte Anderson, 902S.W.zd 695, 698 (Tex.App.-Austin 1995, pel refd); Ex parte Luster, 846 S.W.2d 928, 930 ffex.App.-FortWorth 1993, Involved in a Car Accident? You may be entitled to compensation! Click pel ref d); Ex parte Guerrero, 811 S.W.2d 726, 727 ffex.App.-Corpus Christi 1991, no pel). When a trial court for more info: denies relief from a pretrial habeas corpus application, the applicant may take immediate appeal. See Ex parte Consumerlnjury .com McCullough, 966 S. W.zd529, 531 (Tex.Crim.App.1998); Waldiev. State, 923 S.W.2d 152,157 ffex.App.- Injury Claim? Beaumont 19'}6, no pet}. You may be entitEd to compensation! Ctick for detais: In this case, appellant chose to challenge the validity of section 38.04 by filing a pretrial application fur writ of Consumerlnjury. cam habeas corpus, instead of a pretrial motion to declare section 38. 04 unconstitutional. The trial court, after a Have a Personal Injury Claim? hearing, denied the requested relief. TherefOre, the trial court's denial was immediately appealable. See Med Mal•.Car Accident, WOrkers Comp McCullough, 966S.W.2dat531; Waldie, 923 S.W.zdat157. claims handled_ Clck for more info: Consumerlnlury .com Under the rules of appellate procedure, appeal must be pezfected within 30 days of the date the appealable order is entered. Seetex.R.App. P. 26.2(a)(1).1 There was no motion fur new trial, thus appellant's notice of appeal from the order denying him habeas relief was due on or before October 9, 1998. Appellant filed his notice of appeal on Nm-ember 4. 1998. TherefOre, appellant's notice of appeal is untimely and does not invoke ·----- -·--tliis coUrt'S appeiliirejuti.Saiction tegiifiling-the1riah:omt's-ordet-on thepretrial-applieation fer writ ofb.abeas----- _ --·---·---------·--------- _____ c:__ _ corpus. See Olivov. State, 918 S.W.2d519, 522 (Tex.Crim.App.19¢). 0~~ .. ----lL..- ---.-£. -c -----•-t4~.A7......_1 v 611.312ll15 GREEN v. STATE I Firol.aw ,· Appellant's notice of appeal, however, is timely regarding the final judgment entered on November 2, 1998. But, because appellant entered into a plea bargain, he must meet the special notice requirements of rule 25.2(b) (3). tex. R.App. P. 25.2(b)(3). Appellant does not appeal a jurisdictional issue, nor has the trial court granted hint pennission to appeal. See id 25.2(b)(3)(A), (C). Thus, in order to appeal his conviction, appellant's notice must truthfully state that the substa.D.ce of his appeal was raised by written motion and ruled on before trial. Appellant's notice does not, and in filet can not, meet this requirement.

We recognize that appellant's notice of appeal states that the substance of the appeal was raised by written motion and ruled on before trial. For this to be true, however, the pretrial habeas corpus application must be a "written motion" as contemplated in rule 25.2(b)(3). Our review of applicable law re\"eals that it is not.

A pretrial motion is to be filed at a pretrial hearing conducred pmsuant to article 28.01 of the code of criminal procedure. tex.Code Crim. Proc. Ann. art. 28.01 (Vernon 1989). At such a hearing, the defendant may file any motions or pleadings that are by law permitted to be filed, including a motion In declare a statute unconstibrtional. See id art. 27.02; see, e.g., Williams, 937 S. W.zd at 491. The purpose of the pretrial hearing is to enable the judge In dispose of certain mattecs prior to trial and thus avoid delays during the trial. See-Johnson v. State, 803 S. W.2d272, 284 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.zd 1078 (1991)- Rulings on pretrial motions are interlocutory and not subject to immediate appeal. See Scott, 253 S.W.2dat275·

A habeas corpus action is separate from the proceeding out of which it arises and its purpose is vastly different. Habeas corpus is by definition an extraordinary writ in which the restraint of one's b"berty is challenged as illegal. See Tex. Code Crim- Proc. Ann. art. 11.01 (Vernon 1977); Saucedov. State, 795 S. W.zd 8. 9 (Tex.App--Houston [14th D!st.] 1990, no pet.). As oneofoursistercourts has noted:

Habeas corpus proceedings are separate and distinct proceedings independent of the cause institnted by the presentation of an indictment or other forms of the State's pleadings. Such habeas corpus proceedings should be docketed separately from the substanti\"e cause and gi\'en a different cause number. An appeal from an order denying relief is not an interlocutory appeal from the substantive cause arising out of an indiclnlent, felony information, or complaint and information.

Ex parte Shumake, 953 S. W.2d 842, 846 n- 8 (Tex-App.-Austin 1997, no pet.)_ Additionally, the purpose of a pretrial habeas corpus application is not to fucilitate trial, but to stnp trial and secure immediate release from confinement.

Because of the inlportant differences noted, we conclude that a pretrial application for writ of habeas corpus is not the same as a matter "raised by written motion and ruled on before trial" for the purpose of rule 25.2(b) (3)- Here appellant opted tn file a pretrial application for habeas relief_ He did not immediately appeal the order denying hint relief_ Appellant then pleaded nolo contendere without filing any pretrial motions. Thus, while appellant's notice of appeal textually reflects compliance with rule 25.2(b)(3)(B), the statement is inaccurate because there are no pretrial motions in this case. Appellant therefore fuils tn meet the special notice requirement of rule 25.2(b)(3)(B) and, as a result, fuils In in"uke this court's juriSdiction over the judgment and sentence in this case See Long v. State, 980 S.W.zd 878, 878 {Tex.App.-Fort Worth 1998, no pet.).

Conclusion

Because any purported appeal from the order denying habeas relief is untimely and because appellant otherwise fuils to invoke our appellate jurisdiction, we dismiss this appeal for want ofjurisdiction.

FOOTNOTES

1. If there is a motion for new trial, appeal must be pertected within 90 days.

SAM J. DAY, Justice-

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c7g'(,,\~i:'f,F ~~!< r_ ~I :1

7TH JUDICIAL COURT

APPLICATION for EXTRAORDINARY WRIT of HABEAS CORPUS in HEINTZ

IN THE S.l:'..V ~.NTH DISTRICT CRIMINAL COURI', SMITH Comm 'l'.EUS

To the Honorable Kerry L. RUSSEI.r., judge of said court

Applicant, defendant, Nicholas G. Heintz, in Cause No. UNINDITCED, respect:f.'ul:cy- moves the court .for leave to file a writ o.f habeas corpus and to grant that writ.

Applicant .further respectf.uJ,.ly lllQV~s the _court for expedited he~ and expedited consideration o.f this writ.

In support, Applicant would show:

STATEMENT OF CASE

1 • Applicant Heintz was l.mlawfully arrested on 2 October 2014 and con.fined in the Smith County jail by Larry R. Snri:th, Sherif.f of Smith County, Texas. See. EK. A, ARREST WARRANT dated 2 October 2014.

2. Heintz is charged m:tb. the felony offense, Cause No. UNINDICTED, of Failure to Register as a Sex Offender, "because of a reportable conviction out of . I the State of ·utah. 11 Ex:. A. -.....~ ______ ... --- 3. Heintz was held with bail set at $Soo,ooo.oo. See. EK. B, Jail Record Detail dated 2 October 2014.

h. On 14 October 2014 Heintz "i-Ias compelled to register as a sex offender by Detective James Riggle and Deputy Jerilynn Scott of the Srn:i:th County Sheriff'' s Office. See. Ex. c, Pre-Release Notification Form dated 14 October 2014.

5. Heintz was brought before this court on 17 October 2014 where bail ivas ordered reduced to $100,000.00 -vri.th conditions. See. Ex. D, court Order and Special Conditions of Bond dated 17 October 2014.

6. On 18 October 2014 bond was posted and Heintz was released. See. Ex. E, contractual agreement/rules and conditions of bond dated 18 October 2014.

7 • Heintz appeared before this court on 1 0 November 2014 where it was ordered Special Conditions of Bond be modified to allow Heintz contact with his ndnor s_on a,p.d_ allow _oltt-:_Q:f-:~tCl.t~,_ ~:mploymeilt_-_~_l,_C!ted "t!"Cl_"?.:el!_ ~!- ~. F., court Order dated 10 November 2014.

8. Heintz appeared before this court on 30 January 201 S for "Roll Call", and where it was ordered: 1) conditions of bond be modified to allow Heintz "contact with his child only"; and, 2) that Heintz report monthly to Pre:...Trial Release Officer and submit to randum drug testing. See. Ex:. G, court Order dated 30 January 201 5.

9. On 12 February 2015 Heintz wrote defense attorney Huggler, and requested he file appropriate pleading with the court to have case against Heintz dismissed. See. Ex. H, handwritten letter to Huggler dated 12 February 2015.

2 .,

1o. Heintz informed Huggler of medical condition which inhibits Heintz from maintaining full-time employment. EK. H.

11 • On 2 Mu-ch 2015 Roger N. Fowler, MD finds Heintz permanentzy disabled. See. Ex. I, ~dical Release/Physician's statement dated 2 Mu-ch 2015.

12. On 16 M:!.rch 2015 Heintz delivered copy of Dr. Fmvler's 2 &.rch 2015 Medical Release/Physician's Statement to Huggler's office.

1. The power of the court to set bail may not be used as an "instrument of oppression." TEX. CODE GRIM. PROC. art. 17 .15. Considering the innocuous, noi!o"ID.olent,.victimless nature of offense charged; that HeL."'ltz vras gain.fully employed; and, that prior to his arrest Heintz resided ;;-lithin Srrith County for a yea:r and a half (1 1/2) w.i.thout incident, bail, even at the reduced rate, is unconstitutionally excessive.

2. As set forth in the S:i.x'""vh Amendment to the U•. s. Constitution, Heintz is entit led to effective assistance of counsel during all stages of the proceedings against him.

3. That Heintz 11 intentionally and knowingly failed to register as a sex offender" (Ex. A), as charged, is groundless. See. Ex. J, handwritten letter of Heintz to Vincent Castilleja, TXDPS, dated 6 July 2012.

4. " As a result of his term of supervision end:i.ng on 1 0-1h/81, this individual would not be required to register in Texas. " See. Ex. K, email response of Eddie Contreras, TXDPS Sex Offender Registration Bureau, Training Specialist lit dated 1 November 2012.

3 I

5. Contention of Smith County Sheriff 1 s Office that Heintz neglected to inform Texas registration authority of utah conviction named in Arrest Warrant (EK. A) is 1ri.thout merit. See. EK. L, email correspondence of Heintz to Bexar County Registrar, Sandra Hernandez dated 14 November 2012.

6. Utah 11 EXPIRATION OF PRISON SENTENCE FOR HIS 1983 COl'WICTION C01JRT CASE # 831916801 ON 11/23/1999 with a ten year registration requirement to 11/23/2009. 11 See. Ex:. I-I, Statement of Susan Brown, Case Y.anager, Uta.1-J. Sex Offender Registration Program dated 1 July 2010.

7. Per Texas Code of Crim:i.P...al Procedure, Art. 62.0)2(b) 11 The duty to register for an extrajurisdictional registrant expires on the date the person 1 s duty to register v.rould expire under the laws of the other state. 11

8. 11 One accused of a cr:i..t'1Je is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial.n Taylor v. Kentucky, 436 U.S. 478, 93 S. Ct. 1930, 56 L. Ed 2d 468, 1978. To require Heintz to register without Indictment, 1-Jithout a trial and - without a conviction is a direct violation of this Constitutional Safeg;uard.

9. A Constitutional Violation egregiously aggravated blf Sr.~th County having no legal authority to have arrested Heintz for the offense charged in that alleged registration obligation statutorily expired. Utah Code Annotated, 77-27-21.5.

1 o. Over seven (7) months have now elapsed in unlawful confinement and restraint of Heintz awaiting lawfully unobtainable L~dictment.

4 RELIEF REQUESTED

WHEREFORE, applicant Heintz respectfully requests that the Court grant this application for extraordinar,r writ of habeas corpus and upon conclusion thereof dismiss the ·Hrong.ful charge against Heintz and release him from further unlawful restraint. In the event a hearing in the matter is deemed necess~J applicant additionally requests that the Court appoLDt him an attorney because applicant is indigent and no longer able to afford private cm.msel.

DATED this_ _ day of :Yay 201 5.

Nicholas G. Heintz, Applicant Without Assist~~ce of Counsel 22544 Hickory Lane Mineola, Texas 75773 (903) 638-4383

AFFIDAVIT

I, Nicholas G. Heintz, being first duly sv-rorn, depose and state as follows: 11 I have read the foregoing application for extraordinary writ of habeas corpus and svrear that the allegations of fact contained therein are true and correct, according to my belief. n

DATED: May 6, 2015.

SUBSCRIBED AND SWOIDT TO before me this_.__ day of Ivb.y, 201 5, by Nicholas G. Heintz.

5 CERTIFICATE OF SERVICE

On 6 Yay 201 S the undersigned hand-delivered a true and exact copy of the foregoing Application for ExtraordinarJ writ of Habeas Corpus in Heintz to Mr-. D. i\'Ia.tt Bingham, Smith County District Attorney, 100 North Broad1vay Ave., 4th Floor, Smith County Courthouse, ~ler, Texas 7S702. THE STATE OF TEXAS )( CASE# 2014-23432

COUNTY OF SMITH )( ARREST WARRANT AFFIDAVIT

BEFORE ME THE UNDERSIGNED AUTHORITY ON THIS DAY PERSONALLY APPEARED THE UNDERSIGNED AFFIANT WHO AFTER BEING DULY SWORN UPON OATH DEPOSES AND SAYS: MY NAME IS JERI LYNN SCOTT, AND I HAVE GOOD REASON TO BELIEVE THAT ON OR ABOUT THE 1ST DAY OF OCTOBER2014, HEINTZ, NlCHOLASGEORGE, W/M, 12-5-1953, A.K.A. BANNER NICHOLAS VAUGHN AKA 12-05-55, DID THEN AND THERE COMMIT THE OFFENSE OF FAILURE TO REGISTER AS A SEX OFFENDER, A THIRD DEGREE FELONY, 62.l02 (b) (I) CCP, IN THAT HE DID THEN AND THERE:

WHILE BEING A PERSON REQUIRED TO REGISTER WITH THE LOCAL LAW ENFORCEMENT AUTHORITY IN SMITH COUNTY WHERE THE DEFENDANT RESIDED OR INTENDED TO RESIDE FOR MORE THAN SEVEN DAYS, TO WIT: SMITH COUNTY, BECAUSE OF A REPORTABLE CONVICTION OUT OF THE STATE OF UTAH FOR THE OFFENSE OF SEXUAL ABUSE OF A CHILD 2N° DEGREE CAUSE NUMBER 831680, COUNTY OF SALT LAKE UTAH, WHICH CONTAINS ELEMENTS THAT ARE SUBSTANTIALLY SIMILAR TO THE ELEMENTS OF INDECENCY WITH A CHILD SEXUAL CONTACT UNDER THE LAWS OF THIS STATE, INTENTIONALLY OR KNOWINGLY FAILED TO REGISTER.

MY BELIEFS ARE BASED ON THE FOLLOWING FACTS AND INFORMATION:

10-2-14, AFFIANT RECEIVED INFORMATION FROM PRECINCT #4 CONSTABLES OFFICE, DEPUTY SHANE SCOTT REQUESTING AFFIANT TO CHECK NICHOLAS GEORGE HEINTZ, W/M; 12-5:.53, "f() SEE IF HE WAS A RE

10-2-14, AFFIANT CHECKED THE DPS SEX OFFENDER REGISTRATION WEBSITE AND DID NOT SEE WHERE NICHOLAS GEORGE HEINTZ HAD CHECKED lN WITH ANY AGENCY fN THE STATE OF TEXAS. AFFIANT ALSO CHECKED FOR THE NAME OF NICHOLAS VAUGHN BANNER AND DID NOT LOCATE ANYONE BY THAT NAME.

AS A REGISTERED SEX OFFENDER NICHOLAS GEORGE HEINTZ, A.K.A.-NICHOLAS VAUGHN BANNER IS REQUIRED TO NOTIFY LOCAL LAW ENFORCEMENT WITHIN 7 DAYS OF MOVING INTO SMITH COUNTY WHICH HE DID NOT. 2

UPON SEARCHING NICHOLAS GEORGE HEINTZ, AFFIANT LOCATED A TEXAS DRJVER LICENSE, # 37812274, WITH AN ADDRESS OF 22544 HrCKORY LANE MINEOLA, TEXAS 75773, CLASS A, EXPIRING 12-5-2018.

AS A SEX OFFENDER IN THE STATE OF TEXAS, NICHOLAS GEORGE HEiNTZ, A.K.A. NICHOLAS VAUGHN BANNER IS REQUIRED TO ANNUALLY RENEW EITHER A TEXAS DRIVER LICENSE OR TEXAS IDENTIFICATION CERTIFICATE.

AFFIANT ALSO LEARNED THAT NICHOLAS GEORGE HEINTZ, A.K.A NICHOLAS VAUGHN BANNER WAS SERVED AN EVICTION NOTICE BY PRECINCT #4 CONSTABLES OFFICE ON 10-1-14, AT CAREER TRUCKING SCHOOL LOCATED AT 6986 CR 384 TYLER, TEXAS 75708. HE IS CURRENTLY RESIDING AT THE CORNER OF LAMONT DRlVE AND CR 384 IN A TRAVEL TRAILER ON THIS PROPERTY.

AS A REGISTERED SEX OFFENDER NICHOLAS GEORGE HEINTZ, A.K.A NICHOLAS VAUGHN BANNER IS REQUIRED TO VERIFY WlTH LOCAL LAW ENFORCEMENT WREN BEGINNING OR LEAVING EMPLOYMENT WITHIN 7 DAYS WHICH HE HAS NOT.

NICHOLAS GEORGE HEINTZ, A.K.A. NICHOLAS VAUGHN BANNER OlD INTENTIONALLY AND KNOWINGLY FAILED TO REGISTER AS A SEX OFFENDER IN THE STATE OF TEXAS, SMITH COUNTY. THIS OFFENSE WAS COMMITTED AGAINST THE PEACE AND DIGNITY OF THE STATE OF TEXAS.

WHEREFORE I REQUEST THAT AN ARREST WARRANT BE ISSUED FOR THE SUSPECT HERINBEFORE DESIGNATED ACCORDING TO THE LAWS OF THE STATE

WITNESS MY SIGNATURE THIS THE~-ldiJer 2j)l4. • .

~nfu4T SUBSCRIBED AND ~WORN TO BEFO E M\ HE ;~Lv. ./!:k!trt.IIJ'L 2014 EX:HIBIT 11 B II Jail Record Detail ~ -o- - -- -

Smith County, Texas Jail ID 318879 US MARSHALL'S SERVICE Confined 10/02/201411:44pm

Defendant Heintz, Nicholas George Unk Tyler, Tx 75705 White Male 5' 11" 170 12/05/1953 Hair Blond or Strawberry Eyes Blue ·so# 167319 Cause Charge Disposition Bond Fine Issuing Authority JS-10-2- FAIL TO 10/02/2014- $500000.00 $0.00 14FW-2 COMPLY WITH Held SURETY SEX OFF REG BOND LIFE/ANNUALLY 007

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..' '~~·· . ...._,.. http://judicial.smith-county.com/JudicialSearch/Scripts/UVlink.dll/smith_2/WEBSERV/Ja... lOiSJ,-2014 EKHIBIT "C II PRE-RELEASE NOnFICATION FORM CR-32 {Rev. 12-13} TEXAS SEX OFFENDER REGISTRAnON PROGRAM ARTICLE 62.053, Code of Criminal Procedure - Release or Discharge from a Penal Institution or Release to Community Supervision, Parole, Mandatory Supervision or the Law Enforcement Registering Authority :Full Name (last, First. Middle) ~il\-tl- NICHOLAS Date of Birth mmtddtyyyy' Sex 12/0511953 w 6Col'le ~~ce I Hgt 511 lWgt 170 IBLU Eyes ~~~y I Social Security Number XXX-XX-XXXX DLNumber s_;;;_e liD Number State SID Number FBI Number TDCJ-ID Number 37812274 560408N4 Registering Offense (Title) State• Disposition Date mmldd/yyyy Sentence Received Victim(s) Sex/Age IND. W/CHILO SEXUAL CONTACT UT 09/04/1992 15YEARS S F-10 •tf not statutorily required to register, check box D and enter discharge date mmtddlyyyy: Registering Offense (Title) State* Disposition Date mmtddtyyyy Sentence Received Victim(s) Sex/Age

"If not statutorily required to register, check box D and enter discharge date mmlddtyyyy:

PROHIBITED EMPLOYMENT, ARTICLE 62.063. Code of Criminal Procedure Answer -veS" or '"No" to the following questions to determine if occupational restrictions apply. 1. Was the conviction, adjudication, or deferred adfudlcation on or after 9/01/~"l Yes _ _ No_L_ 2. Was the offender 17 years of age or older at the time of the offense? Yes _ _ No _ _ 3. Was there an affirmative finding made that the victim or intended victim was

I 13 years of age or younger at the time of the offense? 4. Was this a Sexually Violent Offense as defined by Article 62.001, C.C.P.? Yes _ _ No ___ Yes _ _ No _ _ Yes _ _ No _ _ 5. Was this offense tried In a Texas court of law?

If the answer is 'Yes' to the preceding five questions, complete the CR-32PE form.

Duty to register expires: ~Ufetime _ _ 10 Yrs After Discharge _ _ At Discharge (Court/Board Ordered) _ _ 15 Yrs After Discharge _ _25 Yrs After Discharge _ _ ICC: ending registration date

Verifica~ion requirement: ____,{_Annual (on birthday) _ _ Every 90 Days _ _ Every 30 Days

---· - - ~·~1 1-..- · I* "i"''' fnr t"'ivil ,.. ·nla<>...,. ~ .... ~~. "'"'~- -- ··----·· ---- Address or description of the geographical location where person notified expects to reside: ~--- ~---------- ----- · · - . - ·- --~- -------- -(Fulf street aaoress, city, state, ztp code) 2526 LAMONT DR TYLER, TEXAS 75708

C~ap)er 62, Code of Criminal Procedure. requires me to register as a sex offender. I under5t

Agency Address/City/State/Zip: 227 N SPRING ST TYLER TEXAS 75702 Notification to Authority for Campus Security Agency: ....:TY~,L.,E:.cR..>....:..IS=O=-----------------------------­ Ag~n7y Address/City/State/Zip:

7J..Kif I have a juvenile probation officer, community supervision and corrections departm~nt officer, or parole officer and I do not move to an intended , /esidence, I must report to my supervising officer not later than the 7th day after the date I was released.

1lJi_ Registration: I am required to register with the local law enforcement authority in any municipality (chief of police) where 1reside or intend to resi for more than seven days. If my residence is not in a municipality, I must register with the local law enforcement authority of the county (sheriff) whet reside or intend to reside for more than seven days. Registration must be completed not later than the 7th day after the date of arrival in the municipal or county. The local law enforcement authority or the centralized registration authority, as designated by a commissioner's court, in the municipality _., _;;ounty I reside in will be my primary registration authority. The duration of my duty to register is for the period of time indicated above.

~Periodic Verification of Registration: I must personally appear at my primary registration authority and verify my registration information annua f!Nery 90 days. or every 30 days, as indicated above. ·

ny Additional Information as required by the Department: I am required to report to my primary registration authority any additional informal required by the Texas Department of Public Safety including, but not limited to. blood type. nearest relative's name and address. and the indentifi tion of any vehicle to which I have access. _ ·

7}~hange of Address: Not iater than the 7th day before I move to a new residence in this state or another state. 1 must report in person to my prirr registration authority and to any ·:;ammunity supervision and corrections department officer, juvenile probation officer. or paroje officer supervi~ me and inform that authorlt'f and officer of my intended move. If my new residence is located in this state. not later than the 7th day after chang- ing address, I must report in person and register with the !veal law enforcement authority in the municipality or county where my new residence is located. If my new residence is located in another state, not later ihan the 10th day after the date I arrive in the other state, I must register with the law enforcement agency that is identified by the Texas Department of Public Safety as the agency designated by ttlat state to receive registration information. If 1do not move to an intende,d residence, not later than the 7th day after my anticipated move date, l shall ;epo.-·t to riTf prir..a.~; registra- tion authority and to :my super1ising. officer supervising me.

~Lack of Address: If I lack a physical addreils assigned by ~ governmental entity, I must provide to the local law. enforcement authority a detailed description.otthe geographicall~Qf! ~ ~ resi~_oc intend to reside for more than 7 days.! must report in person to the local taw enforcement authority not less than once in ~h 30 day period to confirm· my location until a physical address can be provided. ·· ·· · ·

1~exas DU\D Requirement: Not later than the 30th day after the date 1 am released from a penal institution/placed on community supervision or iuvenile probation, I shall present t:hjs notice to the appropriate Texas Department of Public Safety, Driver License Office, and aooly for the issuance of as agglicab1e an annual!y renewabie Texas driver license or per~nal identifieation certificate. Failure to apply for an annually renewable driver license or personal identification certificate wiB result in the r8'10Cation of any existing license or certificate issued by the Texas Department of Public Safety. 1shall maintain an annually renewable driver license or personal identification certificate for as long as I am required to register. } 7~tatus Changes: Not tater than the 7th day after the date of the·change,! shall report to-my primary registration authority any ehaflge in the follow- ing: my name (includes a request for name change and a denial of a request), my physical health (includes hospitalization), job status (includes be- _ginning. and leavinQ..~I11QlQY!I1E!nt ~93i:I.!JI'l9!f}9 "!i~rj( l_~on!i),_

l-f7/change in On-Line Identifiers: Not later than the 7th day, I shall report any changes to online or identifi~s -establi~ment ~f a~y n~~ o~i~~ ;;~~r not already included on my registration form to my primary registration authority in the manner prescribed by the authority.

17'( Institutions of Higher Education: If I intenct to be employed, carry on a vocation, or be a Student at a public or private institution of higher S>':iucation in this state, I must notify the authority for campus security for the institution and my primary registration authority of that fact not later than the 7th day after the date I begin to wo£1( or attend school at the inStitution. If I stop wofl(ing or attending school at an institution of higher education. I must report that fact to the authority for campus security and my primary registration authority not later than the 7th day after the day I stop wor\(ing or attending school at the institution. If the institution of higher education does not have an authority for campus security, I must provide the required notice to the local law enforcement authority of the municipality or county in which the institution is located. If the institution of higher education is located in an- other state, I must notify any authority for campus security for that institution not later than the 10th day after the date I begin to work or attend school.

n?f'Workers and Students: If I reside outside of this state and intend to work or attend school in this state, not later than the 7th day after the date I begin to work or attend school, I must register and verify registration with the local law enforcement authority in the municipality or county in which 1work or attend school. If I reside iri this state and work or attend school in another state, I must register with tfte law enton::ement agency that is

_-· .,.y identified by the Texas Department of Public Safety as the agency designated by that state to receive registration information not later than the 10th after the date I begin to work oc attend school. -':];lCVisiting Locations: If on at least 3 occasions during any month 1spend more than 48 consecutive hours in a municipality or county other than the municipality or county I am registered in, I must report that fact to the local law enforcement authority of the municipality or county ! am visiting. This notice must be provided before the last day of the month the visits occur. .

~ostcard Notification Costs: if i am assigned a Hi~ risk level or am civilly committed as a sexually violent offender. I shall reimburse the Texas 0 t • I n11'tt .,t Pt tf 6 tfjlf II adjudication of delinquent conduct). ' . n"· ~ thm 900. !l' 11i•fhg !l'f t 1 ,..Ph 'D · I") :1: .,, =f ru':"h =• !fl;t a;:pl" Mill 'D al!l

~ocal Law Enforcement Authority PoHcleS: Air registrations, verifications, and notifications must be pro~ided in person within the time periods -- ·- · indicated above. If I appear within a time period indicated above and the local law enforcement authority instructs me that thetr policy requiras me to appear at a later date, I will appear on that later date to register, verify, or to provide a notification, as applicable. 7JJt(r,NA Specimen: A person required to register under this chapter shall comply with a request for a DNA specimen made by a taw enforcement Jgency ur.der Section 411.1473, Government Code.

1"JN Criminal Penalties: !\.'i'f failure to comply with any requirement imposed upon me by Chapter 62, Code of Criminal Procedure. is a felony offense- Further, if I am on parole, community supervision, or juvenile probation. my failure to comply with any requirement imposed upon me by Chapter 62. Code of Criminal Procedure may result in the revocation of my parole, community supervision, or juvenile probation.

R T 10/14/2014 . Date T -;.~

--:'}::_ H SID# -.,-,-=c;;;;:-""'"~=-::-:::-::-::-:=:-c- _ _ Offender Refused to Sign _._Offender Unable to Sign U ~':~.f.·-~.;,;;· . ·- ,~~:;,-~:t·,·n~~~:!:-i;~2nb~ ~:a:~~~~S~t~~;~~~i~~~~;~i~~~~-ch-;~r 62:-c:c:P... -----·-·--~·-··~· -~:: ~ ~-·...-.... _ _ _ _ _ _·_ _ __.

~ \ ' 10/14/2014 Date of notification

SMITH COUNTY SHERIFF' S OFFICE (903) 590-2680 Nar'le •.Jf noti~;ing agency Agency telephone number

?lease keep a copy "f this form for your records. Please provide r9gistrant with a copy of this form. Forward a copy to the intended primary registration authority. Fax completed form to DPS, Sex Offender Compliance Unit, at .512/424-5434 Mailofiqinai to· S~x Offender: Ragistration.Prognm, Texas. Department of Public Safety- MSC 0230, Po SOX "143, ot.ustin, TX 78765-4143 EKJ!IBIT liD II OCT 17 ·z. i CAUSE NO: 14-"'Mb-f\ . . ~- STATE OF TEXAS 1 IN THE 7'" JUDICIAL DISTRICT I VI. I COURTOF I NICHOLAS HEINTZ I SMITH COUNTY. TEXAS

ORDER WRIT OF HABEAS CORPUS FOR MOTION TO RIDYCE BOND

on lhl• J:l!:.Y a1 (!)G+Jnc , 2014, came on to be heard the

Writ of Habeaa Corpua for Motion for Bond Reduction for the above entitled and numbered

causa and It appears to the Court that said motion should be(§"""RANT§II!Pfi!B.• H~- J Dll'r'nr~rw~ IT li.iFO"'-ORDERED lhat lhe Dalendenl'a bell be aatat 'l":'enly Fi,.. ~~--/ Thouaand ) Oollara for the Fall to Comply with Sax Ofhlnder Ragiatratlon

Llfi/Annuany otrenae. ~ v1 ~~(fitr.7 -- R II tiiEAIF8RE 8R81RI8 ttllat U'la ;a.. A'Itanra hau be tet et S aunars tar ml Fill to camPlY With SD Oifindir kiQiaa lttUt' l:lf:tiJeAAua"v C?ffcna•, • • CAUSE NO. UNINDICTED

THE STATE OF TEXAS §

vs. §

NICHOLAS HEINTZ § Offense: FAIL TO COMPLY WITH SEX OFFENDER REGISTRATION Bond Set: $100,000.00 with Conditions

SPECIAL CONDITIONS OF BOND

The Court ORDERS that any bond posted by the Defendant in this cause shall also include the requirement that the Defendan1agree to comply fully with these terms and conditions of bond:

1. Have no contact with minor children unless at least two other adults are present.

2. Do not go on the premises of or patronize sexually oriented establishments. Do not purchase, own, or possess pornographic materials.

3. Do not reside in a household where any minor children live without written permission of the Court.

4. Do not supervise or participate in any program that includes as participants or recipients persons who are 17 years of age or younger and that regularly provide athletic, civic, or cultural activities. Do not reside, go in, on, or within 500 feet of a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, Olideo arcade facility, unless permission is obtained from the Supervision Officer or Court.

5. Do not accept or maintain employment which will bring you into direct contact with minor children without written approval by the Court.

6. The Defendant is ORDERED not to use, possess or consume any alcoholic beverage, illegal drug or narcotic as a condition of this bond.

7. The Defendant is ORDERED not to possess at any time or place a firearm, explosive device or ammunition.

8. The Defendant is ORDERED as a condition of bond to obey the law.

9. The Defendant is ORDERED as a condition of bond to remain in the United States of America.

10. If the Defendant violates any of the provisions of these conditions of bail/bond the Court may order ex-parte that this bond be revoked and order the Defendant arrested and a new bond be setby the Court.

11. The Defendant is ORDERED to immediately report the Adult Probation Department, Pre-Trial Release Officer locatedat 217 East Line Street, Tyler, Texas 75702 upon release from the Smith County Jail and remain there until he/she receives his/her supervision instructions in thi~ matter.

12. The Defendant shall submit to testing on a weekly basis for the presence of a controlled substance in the Defendant's body. The Defendan is ordered to report to the Smith County Community Adult Probation Department located at the Smith County Office Building in Tyler, Texa: immediate/yand submit to a test on a weekly basis for the presence of a controlled substance in the Defendant's body. lfthe Defendant fails to repor and/or submit to such testing for controlled substance or the test indicates the presence of a controlled substance in the Defendant's body, the Cour may order ex-parte that this bond be revoked and order the Defendant arrested and a new bond set by the Court. The Court orders that the cost o such testing be paid by the Defendant prior to testing.

13. The Defendant is ORDERED as a condition of the bond that · e Defend a shal ~-ithin 3 days report. to~ mith County Sheriff Department to provide one or more specimens for the purpose of ere ng a DNA r~ord. b7 ~

SIGNEfiiiiGINAi"' of Octobec, 201

HONO~ RRY L USSELL I . Judge, . 'Judicial District Court of Smith County, Texas ,I . I, THE ABOVE NAMED DEFENDANT. UPON POSTING OF THE ABOVE T UT BOND AMOUNT, NOW HEREBY ACKNOWLEDGE THAT I HA\1 RECEIVED A TRUE AND CORRECT COPY OF THE ABOVE AND FOREG~Iti.G CONDITIONS OF SAID NO. .AVE READ SAME, I UNDERSTAI' THESE TIONS, I READ AND UNDERSTAND THE ENGLISH LANGU~E,AND I EXPRE SLY AG DE STRICTLY BY THOSE TERIV ANDQOND NO. I

- ·7'-

Current Address with Zip Code ~~ Phone Number ( fp/,3 )_~:!..-3_f5_-_i.f,._,~_,_o_ _ _ __ EXHIBIT 11E 11 or + o~ Bail Bond - NICHOLAS HEINTZ

~ Surety Bail Bond #414845 Warrant: JS-10-2-14F 7th District Court Bond Company:Bad Boy Bail Bonds Cause No.: Date: 01/30/2015 Principal: NICHOLAS HEINTZ JaiiiD: 318879 Time: 8:30AM Completed: Oct 18 2014 7:35PM 50#: 167319 Place: Phone: Agreement: Know all men by these presents, that we, NICHOLAS HEINTZ, as principal, and the undersigned Bad Boy Bail Bonds as sureties, are held and firmly bound unto the STATE OF TEXAS, in the penal sum of $100,000.00 Dollars and, in addition thereto, we are bound for the payment of all fees and expenses that may be incurred by any peace officer in re-arresting the said principal in the event any of the hereinafter stated conditions of this bond are violated for the payment of which sum or sums well and truly to be made, we do bind ourselves, and each of us, heirs, executors, and administrators, jointly and severally. The conditions of this bond are that the defendant was ~rrested on 10/02/2014 and has been charged with FAIL TO COMPLY WITH SEX OFF REG LIFE/ANNUALLY, a Felony offense and to secure his/her release from custody is entering into this obligation binding him/her to appear before the 7th District Court the County of Smith, the State of Texas. Now therefore, if the said principal shall well and truly make his personal appearance before said court instanter as well as before any other court to which the same may be transferred and for any and all subsequent proceedings that may be had relative to said charge in the course of criminal actions based on said charge, and there remain from day to day and term to term of said courts, until discharged by due course of law, then and there to answer said accusation against him/her, this obligation shall become void, otherwise to remain in full force and effect.

Taken and approved: 10/18/2014 By (Deputy): BLAKE E BANNER

Surety (Owner/Agent): Bad Boy Bail Bonds (Agent, Lexington National Insurance Corporation) Surety Employee: Eric O'Brien Richard (Bad Boy) CoSurety: LORI OLMSTEAD Address: 1625 W. Gentry #105 Address: 173 VIRGINIA AVE. City/State/Zip: Tyler, Texas 75702 City/State/Zip: SEBASTOPOL, CA 21593 Phone: 903-592-5555 Phone: 707-292-9613 Submitted: Oct 18 2014 7:12PM /s/ LORI OLMSTEAD . ~t~~t,JS~ (,::9mPIE'l~E!9 at Qft 1_8 f91_4 7:;3_5_pM ----------------------------------------- Principal Identification: SSN: XXX-XX-XXXX Address: 22544 HICKORY LN Hair: Blond DL#/State: 37812274/ TX City/State/Zip: MINEOLA, TX 75773 Eyes: Blue DOB: 12/05/1953 Phone: N/A Height: 5'11" Sex: Male Weight: 170 Race: White ' <~--=:········ Right Thumb Print: ~/\ ~ i · Y -, I ¥£ t. ·v· Dated { c· - j- c• 0 c._, ~1 Signed by Principal: ____·---------,~7-------- 20 [ y Declaration of Sureties: THE STATE OF TEXAS COUNTY OF SMITH We, each of us, Bad Boy Bail Bonds and LORI OLMSTEAD pursuant to section 132.001 of the Texas Civil Practice and Remedies Code does hereby declare under penalty of perjury that he or she is worth in his or her own right at least the sum of $200,000.00 Dollars, after ded~cting from his or her property all that which is exempt by the Constitution and Laws of the State from forced sale, and after the payment of all our debts, of every description, whether individual or security_debts, and after satisfying all encumbrances upon our property which are known to us; and that the surety or agent of the surety resides in the County of Smith and has property in the State liable to execution worth: THE SAID Bad Boy Bail Bonds SUM OF $200,000.00 DOLLARS THE SAID COSURETY LORI OLMSTEAD SUM OF $100,000.00 DOLLARS

BY /s/ Thomas Snoddy this day of . 20 1 Jl BY ~~Ca.J.A;v-- DEPUTYthis+}1,___dayof QCbe~v ,20~

page 1 of 3 10/18/2014 Smith County - All Rights Reserved Bail Bond - NICHOLAS HEINTZ

Warrant: JS-10-2-14FW-2 Court: 7th District Court Bond Company: Bad Boy Bail Bonds Cause No.: Date: 01/30/2015 Principal: NICHOLAS HEINTZ JaiiiD: 318879 Time: 8:30AM Completed: Oct 18 2014 7:35PM SO#: 167319 Place: 100 N. Broadway Rm 203, Tyler Phone: 903-590-1640

Instructions: COME BY OUR OFFICE MONDAY TO FILL OUT YOUR PAPERWORK. OUR# IS 903-592-5555.

page 3 of 3 10/18/2014 Smith County -All Rights Reserved BAD BOY BAIL BONDS

You are required to adhere to and comply with all rules and conditions set forth in this agreement concerning the bail bond(s) to which Bad Boy Bail Bonds has posted Sure on your behalf regarding the char!F of ro L- 11> (.I)HPl: ~ 5~ 0 EEl L\ FE tJVfq,L on bond(s) dated (fl day of 0 CrDBEl?. , 20 l4 .

•• 2.<,/() 1:/--nuring the term of the bond(s) you may not leave the county of your residence, the State of Texas, or the United States without prior· express permission of Bad Boy Bail Bonds.

3 . .,..../) r/--You must notify Bad Boy Bail Bonds within 4 hours of any changes in your employment, home address, or phone numbers during the term of the bond(s).

5. 11r/-- A representative ofBad Boy Bail Bonds may, at anytime contac~ you by phone or in person, at home or your place of employment during the term of the bond(s).

6. tl1i_ Failing to comply vvith the above regulations, providing false information, or being arrested placed under arrest during the terms of the bond(s) is grounds for Snoddy Bail Bonds to request to be released from the bond(s) and warrant(s) being issued for your arrest. Bad Boy Bail Bonds shall not return any collateral/security if the bond(s) are released under these circumstances.

7. 7"!7J- Bond Jumping is a criminal offense. You may be charged with Bond Jumping if you fail to appear in court as required during the term of the bond(s). Bad Boy Bail Bonds will not return any collateral/security if you fail to appear in court as required.

8. f1 rJ -/ I . un

representatives to contact, investigate, and/or obtain information from my employer(s), credit references, medical facilities, and/or Credit Bureaus for a period of 2 years from ~e date ~f this document to (Tjf_: !P"M311CO in court.

----+-~~~~~~~~ 7~~ .~09-~-~7~ SSN

\0- 20- \4-- Date ELBIBIT "F n r·-.- ----"J:~r:-rr-.,..,_ . ~Ji ~~-·-·- ....... ~.

CAUIE NO.: /4 ""'dfi -A .· AJnv JO·., ITAT! OF TIXAI I IN THB 7"" J'#~;;IITRICT I l~/\. va. I COURTOF -· I NICHOLAS HI!INTZ I IIIlTH COUNTY, TEXAS QRDER VWUTOFHABIAICORPUIPOR ~DOH TO MODIFY CQIQITIONI Qf IONQ

On /(') day of "um ~ ' 2014, came on to be heard the Oefendanra Motion to Modify Condltlona of Bond and the Court Ia of the opinion of eald

motion ehould ~RANTE~~•nec. IT 18 THEREFORE ORDERED, ADJUDGED AND DECREED thm the Defendant be allowed to have contact with hll aon Jarntd Halntz. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED th~ the Defendant

be allowed to travel within Texaa, Loulalana. Mean••• and Oklahoma aa It pertalna to hll

employment with career Trucking SChOol. ~) - · .j"c:f Signed lhll /D ~of /YIJrJ6ttl. Hr .2014. 1• .~.,.,ftr~ r::.. 1,.,~ I /

'1- · rMJ·IAk Syl,..)(~

I ··---·------ ... EX:HIBIT nan t-rom:-:;~a...)::>':1iaJ..b'tJ..

FILED CAUSE NO. UNINDICTED

THE STATE OF TEXAS V. DISTRICT .C.OURT IN AND FOR • NICHOLAS HEINTZ SMITH COUNTY, TEXAS ORDER ON MOTION ELIMINATING OR AMENDING SPECIAL CONDITIONS OF BOND On this the Q/.:Pt:day of \Ja.nua.r,.y , 201i came to be heard the Defendant's Motion to Eliminate or Amending Special Conditions of Bond. IT IS THEREFORE ORDERED that the following changes be made to Special Conditions of Bond~

SPEClALJJPJI>ITION OF BOND NO. l! ( '~-::!;,w Defendant to have contact with his . . . .child only. .j""o1. rrJ . (T' amended Special Condition No.1 as follows= lk111 fz

~[('fifZ ~~~;'7/:dr:::d~ 1£/ {Jr ( ) all relief is denied to which the Defendant shall comply with.

SPECIAL CONDITION OF BOND NO. 12: ( V'?'t:anow Defendant to submit to teoting on a MONTHLY for the presence of a controlled substance in the Defendant's body. The Defendant is ordered to report to the Smith County Community Adult Probation Department located at the S~i*NfA;~ Office Building in Tyler, Texas immediatelyand submit to a test on a ~as is for the presence of a controlled substance in the Defendant's body. If the Defendant fail~:; lo l'Cport and/o1· submit to such testing for controlled substance or the test indicate~ the presence of a cont.rolled substance in the JRN-30-2015 12:19 From:9035901641

Defendant's body, the Court may ordel' ex-parte that this bond be revoked and order the Defendant arrested and a new bond €-;P.t by the Court. The Court orders that the Cost of such testing be paid by the Defendant prior to testing_ ( ) amended Special Condition No. 12 as follows:

( ) all relief is denied to which the Defendant shall comply with. SIGNED AND ENTERED on this the . 20~ K-l.BIBIT ''H 11 / :J_ h£ruO-rj ;)tJ/:)

~r2t0~0~ G: M/·/}~Z­ :J:lsLf let 7J( 7S773 1

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h;l(redv~ /:S ~~·~ved. ;j"eb_ tf!/Jdt,_seLf ~~ ~F/11y /() _ce£ rJ"(' -7NO {!fl1djrekh~ /A, 5: ,/Jfi. -h 0¥70"-"~

7 EXHIBIT 11 I 11 Texas Health and Human Services Commission

SECTION I -TO BE COMPLETED BY STAFF Name of Patient MEDICAL RELEASEJPHYSICIAN'S STATEMENT

Date of Birth Social Security No. li I l!J i!J. . .

!Nicholas G Heintz I 112/05/1953 I OD

I !Nicholas G Heintz HHSC Office Address/Mail Code/FAX No. I 11020258362 I PO Box 15100 Midland TX 79711-5100 Fax: 1-877-447-2839 SECTION II - TO BE COMPLETED BY PHYSICIAN The patient named above has applied for benef'Jts with our agency. Federal and state regulations require that persons receiving benef"ltS work or participate in activities to prepare them for work unless they are physically or mentally incapable of working. This patient claims that disability. Please complete the appropriate parts. After you complete the form, you may give it to the client or mail it to HHSC at the address in Section 1 . PART A -DISABILITY: I To what extent is the individual able to work or participate in activities to prepare for work? Please chect one of the following boxes: I 1) The individual is able to work, or participate in activities to prepare for work, without restrictions: a) 0Full time (40 hours/week) b) D Part time at __hours/week 2) The individual is able to work, or participate in activities to prepare for work, with restrictions: (Please complete Part Band C) a) O Full time (40 hours/week) b) D Part time at __hours/week 3) The individual is unable to work, or participate in activities to prepare for work, at all: (Please complete Part C) a) ~he disability is permanent. l b)Q-ffie dlsablflty -is no'Cpermanenf anc/rs e~ctedto-last more than 6 months. ---------------. - ---- ..

I c) D The disability is not permanent and is expected to last 6 months or less.

PART B - TANF HARDSHIP What can this individual do now? Check the appropriate boxes that are applicable during a workday: !Maximum hours per workday: 2 4 6 8 Other Sitting 0 0 0 D D !Standing 0 0 0 0 0 Walking 0 0 0 D 0 Climbing stairs/ladders 0 D D D D Kneeling/Squatting 0 0 D 0 0 Bending/Stooping 0 0 D D D Pushing/Pulling 0 D 0 D 0 Keyboarding 0 0 0 0 D lifting/Carrying 0 0 D 0 0 other (please describe) !i

Fonn 1836-A August 2012 'II I T-1836Aw0346763353 i !The individual may not lift/carry objects more than___ lbs. for more than_j)ours per day. l Individuals with employment limitations may still be assigned to complete community work in an office environment I with little physical strain or demand (answering phones, filing while seated, etc.) Others may be assigned to ~mplete employment-related activities in a classroom setting. In your opinion, can this individual participate in 1 activities of this nature? ·

DYes QNo \1,,1 Any other remarks, recommendations or restrictions? - - - - - - - - - - - - - - - - - - - -

1 PART C -DIAGNOSIS I ~~----------------~----------~~~ 1 !Prima'"¥ disabling diagnosis I _ -A- _J "' 1 Secondary ~isabf!hg diagno:is II lJ~~ ~ ~ .1 ~~ft6-.---- II 11

I ! ComWlents: frkz 1 ~ ~ ~~ Ii

1\Namji');fPhysician(ple se \11"' or print) I Physicians License No.I } +Il 1, 1\obvl-- I .~1 6 (OOCj I I 3 2/;J Date 1

:l !Office Address (Street or P.O. Box. City, State. ZIP) I I

I Telephone No. (Include Area Code) I ~ )..<) 1 s- mA,I\J ,_,--- qo5 ~u '--<;<:o. o l \I Lu 04- '--L 7r 7071 1 IJ

Fonn 1836-A T-1836A..0346163353 Page 2/08-2012 AUTHORIZATION TO RELEASE MEDICAL INFORMATION AUTORIZACION PARA DIVULGAR INFORMACION MEDICA

_Case Number I Num. de Caso: ll-1_02_0_2_5_8_3_6_2_ _ _ _ _ _ ____; SECTION Ill- TO BE COMPLETED BY CLIENT/SECCION Ill, EL CLIENTE DEBE LLENAR ESTA SECCION

P~~~s~me~ombred~~~~e:jtN~~~h~o~~~s~G~H~e~~=~~--------------------~ HHSC is requesting verification of the medical condition that prevents you from participating in the employment services program. When you sign this authorization, you are giving HHSC permission to contact your doctors, medical facilities, or other health care providers to request copies of your health information as indic~ed below. You do not have to sign this form to be eligible for TANF, Food Stamps, or Medicaid. However, you must sign this form if you want to be eligible for an exemption from the employment services program. HHSC necesita vertficacion sabre el padecimiento medico que le impide participar en el programa de sevicios de empleo. Cuando firme esta autorizacion, le dara permiso a Ia HHSC para comunicarse con su doctor, centros medicos u otros proveedores de atencion medica para pedir capias de su informacion medica como se indica mas adelante. No necesita firmar esta forma para llenar los requisitos para TANF, estampillas para comida o Medicaid. Sin embargo, es necesario que firme esta forma si desea llenar los requisitos para uno exencion del programa de servicios de empleo.

I authorize/Yo autorizo a ·Roae.r Jt./ ;:iu.J/er, /Y}{) V Doctor, Medical Facilities, or other Health Care Providers Doctor, centro medico u otro proveedor de atencion medica To complete Form H1836-A, Medical Release/Physician's Statement, and release the information to HHSC and the Texas Workforce Commission for purposes of verifying the medical condition th~ prevents me from participating fully in the employment services program. Para llenar Ia Forma H1836-A, Medical Release/Physician's Statement, y poner Ia informacion a disposicion de Ia HHSC y de Ia Comisi6n Laboral de Texas para verificar el padecimiento medico que me impide participar completamente en el programa de servicios de empleo. This authorization expires on I Esta a o · aci se vence el:

f'\~ _'7 f J~Ni .J.CJIC Client or Personal Representa e's Sign ure I Date/ Firma del Cliente o del Representate personal Fecha If you are signing fer t-he Glient; please describe your authority to act for the client: Si usted va a firmar por el cliente, por favor, describa Ia autoridad que tiene para actuar en nombre de el:

Witness IT estigo Date/Fecha

Witness !Testigo Oate/Fecha Notice to Client Notice to Client El HHSC, como destinataria de esta informacion, protegera HHSC, as receiver of this information, will protect su informacion medica personal conforme a las your personal health inform~ion in accordance with federal and state privacy regulations. tf you authorize regulaciones estatales y federates del derecho a Ia vida release of your health information to other parties it privada. Si autoriza Ia divulgacion de su informacion medica may no longer be protected by privacy regulations. a terceros, es posible que ya no tenga Ia protecci6n de las You can withdraw permission you have given your regulaciones del derecho a Ia vida privada. doctor or health care provider to use or disclose Usted puede retirar el permiso que le haya dado a su health information that identifies you, unless they doctor o al proveedor de atenci6n medica para usar o have already taken action based on your permission. divulgar informacion medica que lo identifique a usted, a You must withdraw your permission in writing. menos que este ya haya actuado de acuerdo con su permiso. Tiene que retirar su permiso por escrito.

Form 1836-A Page 3/08-2012 II T -1836A-0346763353 EXHIBIT IIJII / 31tJ5 A/~,-/;{ J/or{c,/;c2/JjJ?~ud r:-/cr-&J(),.~ ~' /:jr, .z:_£1/JcL g5/3;} RECEiVED TEXASDPS tf U::f d-~!:J. JUL 1 1 2012

0/JC-e/;;:- Cas/;·11Ja-- CRlME RECORDS SERVICE /4?L:> IJ~?--~L/1/o": /~£/~ 5'"-,-Lf /:J6S;/ {)rrrflL 8oX: L/1'13 ijus..h>~ r /Z;

From: Hernandez, Sandra (shemandez@bexar.org)

To: NGHEINTZ@YAHOO.COM;

Date: Thursday, November 1, 2012 10:12 AM

Subject: RE: Heintz,Nicholas.PDF

As a result of his term of supervision ending onl 0-14/81, this individual would not be required to register in Texas.

Eddie Contreras TXDPS Sex Offender Registration Bureau

Training Specialist ill South Texas Representative

Conjidentiolity Notice: This e-nuzil message, including any attodzments, is for the sole use of the intended recipient(s) and nuzy contain confidentinl and privileged infoTIIUltion. Any unauthorized review, use, disclosure, or distribution is prohibited. lf.vou are not the intended recipient, please contact. the sender by reply e-mail and destroy an copies ofthe original message.

To: Contreras, Eddie Subject: Heintz,Ni~holas.PDF - Adobe Reader

Eddie,

Good Afternoon

http://us.mg6.mail.yahoo.com/neo/launch? .rand=cgsjhao5jc7cu 111112012 Print Page 2 of2

Can you please tell if this subject is a lifetime Registration or a Post 10 yrs ... He is planning on moving to San Antonio.

Thanks

11/?/?01 ') 11 EXliTBIT Ll 1 .l"f. '-J • .l.l~ll.lLL- I.J'-"~l.'-- .l. U ..U.V'-1 .I.."'..&.~.L.L

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Compose Delete Reply Reply All Forward Actions · . ; Apply : Back. to Search Results lnbox (6201) The Hernandez Info Sponsored - Hard to Find Public Drafts {56) Records. Sent N. G. Heintz Wednesday. Navemoer 14. 2012 1 23 .~M

Spam (134) [Empty] From: "nicholas heintz" Trash (9} [Empty] To: "shemandez@bexar.org"

Fun Headers Printable View My Folders [Edit]

'Sponsored Ms. Hernandez,

Please allow me describe the chronology of my Utah conviction record:

On December 5, 1983, under the name of Nicholas Vaughn Banner, I GreaterTexasHonda!)ealers N- 2014 Honda Accord was arrested by the Salt Lake County Sheriff's Dept. on charges of Specials Sexual Abuse of a Child, Count I, and Sodomy Upon A Child, Count II. Note: this is a contrived offense; it never actually occurred.

The case initially came to trial before a jury on Dec. 4 and 5, 1984, where I was found guilty on both counts as charged and sentenced to prison.

In April !986, the Utah Supreme Court unanimously reversed the conviction and remanded the case to trial.~- State v. Barurer, Utah, 717 P. 2d 1325 (1986).

The case was re-tried in June of 1986, before a jury, where I was once more found guilty of Count I, Sexual Abuse of a Child; however, found not guilty ofSodomy·I:Jpon ~Child, Count· II.

I expirated my term of imprisonment on November 23, 1999, and on that date was released. Per Utah law I was required to register during the sentence and for a period often (10) years after release. See. Utah Code of Criminal Procedure, Sec. 77-27-21.5 (9) (a) "Except as provided in Subsections (9) (B) and (c), a sex offender shall, for the duration of the sentence and for ten years after termination of sentence, register an'nually ... "

The statutory period of registration ended on November 23, 2009.

This is the reason why the Arizona Notice of Registration you pulled up from the Internet that first day we spoke over the phone did not list the Utah conviction, because the registration requirement for that conviction had already been satisfied. It is a moot issue.

The same standard would also apply here in Texas. See. Texas Title I. Code of Criminal Procedure, CHAPTER 62. Sex Offender Registration Program, Art. 62.052 (b) "The duty to register for an extrajurisdictional registrant expires on the day the person's duty to register would expire under the laws of the other state.. ."

I hope the foregoing information is helpful. I'll await to hear back from you once the authorities in Austin have had an opportunity to review the matter.

Please know I am not what my past record makes me out to be. I did have some issues over the death of my father when I was a boy of II that were inappropriately manifest as a young adult. That was a long time ago; I got through it, grew up and moved on with my life.

https:/ /us-mg5 .mail.yahoo.com/neo/b/message?search= 1&s=Hemandez&startMid=O&sor... 10/22/2014 l ~, \J. flClUl.£. - '-'IO'HL - .l U.l..lVV L • .I.(,.LI..l

• Hernandez.PublicR I will be 59 next month. I want only to provide for myself and family ecords.com the best wey I know how. I am here in Texas to live and to work --- not here to commit crimes or cause any trouble at all.

Thanks again for your time and kind, fair-minded understanding.

Nick Heintz

Compose Delete Reply Reply .1\11 Forward Actions ! Apply i Back to Search Results

https://us-mg5 .mail. yahoo.com/neolb/message?search= 1&s=Hemandez&startMid=O&sor... 10/22/2014 EKHIBIT 11W' .. PAGE 10/64 07/68/2616 16:17 5264553159 ELOY POLICE 01101 2010 15:32 FAX UI SOR ~001/00$ •

UTAH STATE DEPARTMENT OF CORRECTIONS Gary R. Herbert. Governor. State of Utah Thomas Patterson, E;xecutive Director

UTAH SEX OFFENDER REGISTRATION PROGRAM 14717 MinUteman Drive, Draper. UT 84020 801-495-7700

DATE: Thursday~ 07/01/2010

FROM FAX NUMBE(t: (301)495-7719

TO: Oet. Tonya Quintana #1037

LOCATION~

FAX#:

FROM: SUSAN BROWN ( 801) 495-7711 LOCATJON: Sex Offender Registration Program NUMBER OF PAGES (Including this cover sheet): 6 RE; Nietiotas Va~hn BANNER (DOB 12lo5119Ss)

Attached isnfrom our--sex Offender Website (www_oorrections.utah~gov) left side, Click oh SONAR Also a copy of our computer notes on trying to loc~te this offender.

FYI: EXPJRATION OF PRISON SENTENCE FOR HJS 1963 CONVICTION COURT CASE# 831916801 ON 11/2311999 with a ten year reg-istration requirement- to 11/2312009, however he has been NON COMPLIANT in UT since Qefure 2005. These offender was convicted sex of Crimes in CAin the 1970s and 1980 and in OR in 1977 tin_der.the name of Nlchoias George HEINTZ, dob as 12/0511953~ .rece_iv~ information from CA that the offender under the name of Nicholas G. HEINTZ, is required to register for UFE as a sex offender in CA

Respectfully, Susan Brown Case Manager- Sex Offenders with last names A, s: or C susanbrown@utah-.gov ·

011/y for th11 uS9 addressee(s) nam~ll abcwu•. li' you· :itO t10t ihB infendo1'-'fi!S...nQ() et1d destroy tt>v otigitl4f r~ie3im~Te

Redacted Copy - L. McDermott 7-9-10 000008