Huckaby, Bobby

Opinion

CAUSE NO.C-3-010482-1247332-A IN THE Ca.JRT OF CRIMINAL APPEALS OF TEXAS BOBBY HUCKABY,Re1ator v. THE HCNORABLE BRIAN WILLET ,THH.'TARRANT COUNTY,DISTRICT CLERK,THOMAS J.WILDER,Respondents

IN THE CRIMINAL DISTRICT COURT N0.3 OF TARRANT COUNTY, TEXAS

PETITION FOR WRIT OF MANDAMUS

COURT OF CRIMINAl APPEALS

OCT 16 20i5

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RESPECTFULLY SUBMITTED: BOBBY HUCKABY TDCJ-CID#1777084 COFFIELD UNIT 2661 FM 2054 U'ENNESSEE CDLONY ,TEXAS 75884 CAUSE NO.C-3-010482-1247332-A IN THE COURT OF CRIMINAL APPEALS OF TEXAS BOBBY HUCKABY,Relator v. THE HONORABLE BRIAN WILLET, THE TARRANT CaJNTY, DISTRICT CLERK THOMAS J.WILDER,Respondents

IN THE CRIMINAL DISTRICT COURT N0.3 OF TARRANT COUNTY ,TEXAS

PETITICN FCR WRIT OF MANDAMUS

TO THE HONORABLE JUDGES OF THE COURT OF CRIMIN~L APPEALS: NOW CQ\1ES ,BCBBY HUCKABY ,and. files this PETITION FOR MANDAMUS ,requesting this Court to issue a mandamus ordering the Criminal District Court N0.3 of Tarr- ant County ,Texas and the Tarrant County District Clerk, ("hereinafter Re~ond­

ents") ,to enter its findings of fact and conclusions of law and to forward my writ of habeas corpus,in the above numbered cause,to the Court of Criminal Aweals of Texas ,as is required by Article 11.07 ,Texas Code of Criminal Proc- edure("T.C.C.P.")and Article l,Section 12 of the Texas Constitution. r. JURISDICTION On March 27,2012, Relator was convicted for the offense of aggravated assault with a deadly weapon,whereby he entered an involuntary plea of guilty and he also pleaded true to the habitual offender notice on that same day of March 27,2012, in cause number 1247332D. The trial court sentenced the Relator to twenty-seven years in TDCJ-CID. Although the Relator did not appeal his conviction,he did file an Article ll.07,under the T.C.C.P.,which the State's Response to the Relator's Applicat~

ion for writ of habeas corpus,filed with the Tarrant County,District Clerk's off ice ,cin June -3,2015 .See attached Relator's Appendix. II. FACTS OF THE CASE Relator complains that his State Wrmt of Habeas Corpus should have been forw- arded to the Court of Criminal Appeals with findings of facts,whereby the tri~ al court designated an issue that required an expansion of the record and the 2. trial court ordered an affidavit from the Honorable Brian Willet ("trial coun- sel") ,to adlress the Relator's allegations,that he received ineffective ass- istance from the trial counsel.The Relator's habeas corpus clearly demonstr- ates that the Relator's trial counsel did in fact file his court ordered af- fidavit on August 4,2015,but as of October 3,2015,date of this writ of maad- anus, the Relator's habeas corpus hrl~ sti 11 not been· sent to tht: t:ourt of cr-- iminal Appeals,despite the Relatot·;s repeated requests for the Respondent's to do so. (See attached Appendix, in relevant part to his due diligence. j III. GROUNDS FOR RELIEF RELA'I'OR 'S ONLY GROUND FOO RELIEF:THE Presiding Judeje ,CRlMINAb MAGISTRA'I'E ,CH- ARLES P.IREYNOLDS,of •rarrant County ,'l'exas and the District Clerk of 'l'arrant County/l'exas,Thomas A.Wilder,("Respondents;')have and are presently violatin~

the Relator's constitutional right to acce.ss to the court,a.s well as viola- ting his si.:.atut:or:y right to file an application for writ of habeas corpus, in violation of Article 11.07 § 3,of the =r.c.C.i?.and the Fourteenth Amendment or the United States Constitution. Relator,specifically contends that the Respondents of the Tarrant County ,Te- xas-, criminal District Court No.3 and the Tarrant County,'I'exas District Cle- rks office are denying him of his constutional right to access to courts,by failing to appoint someone to make a findings of fact,approve it,and have the clerk tran~'1llit it to the Court of Criminal Atpeals,in response to the Relat- or•'s State wcit of habeas corpus~ir. violation of hi.s due process,and theref- ore, neglecting to perform its complete ministerial duties and is disregardi- ng due course of lo.w. Because the convicting court dieT desi9nate issues that needed to be resolved ana .since the convicting court ordered an aHioavit frcma the tt·ial counsel and since the record demonstrates thc::t the court ordered affidavit has been added to the Relator's habeas corpus record, therefore pUi:suant to Article 11.07 ,§ 3 (d)of the T.C.C.P.;'\lso,the Relator contends that there is no provision for· him to appeal the Respondent's failure to perform its dvties according to ll.O 7,§ 3(d),wherein it provides in relevant part: ..• 'aiter the convict1ng court makes findings o:t iact or approil•?S the findin

and any other matters such as official records tlsed by the co•:ll~t in resolving issues :Jf fact. ' 'l'herefore,based on the aforementioned,the Relator'::>: ca::::e is now before the

Court of Criminal Aooeals,in accordance with Art.ll.07 § 3(d),and since there 3. is no provision for him to appeal the Resoondent's failure to make fjndinas of fact·,failure to transmit and/or failure to perform its ministerial auties in this context,thus the Relator's inability to appeal leaves the Relator with no other adequate remedy at law except the filing of this mandamus.Delem v.District Clerk,l87 S.W.3d 473(Tex.Crim.App. and Exparte Ybarra,l49 S.W.3d 147Tex.App.2004). Moreover,this Court of Criminal Appeals has held that mandamus relief may be granted if the relator shows;(l)that the act sought to be compelled is purely ministerial,and(2)that there is no adequate remedy at law.Winters v.Presiding Judge,ll8 S.W.3d 773,775(Tex.Crim.App.2003),Ex Parte Ybarra,l49 s.w .l47Tex Crirri.App.2004) ,and Deleon v .District Clerk, 187 S.W. 3d 473, 474(Tex. App.2006). In the instant case,the Relator has shown that: (l)the Respondent of the trial court has a ministerial duty of law .to appoint someone to make a fin- ding of facvt and/or approve the findings of fact(or deny it)of the person he designates to make them and then the Respondent of the Tarrant County,Te- xas District Clerk's .. office should perform the ministerail duty to transmit the findings of fact,in response to Relator's state writ,immediately to the Court of Criminal Appeals,under one cover,the application,any answers filed by the State and the affidavit filed by the Relator's trial counsel.These aforementioned ministerial duties, that. are material to the legality of the Relator's continued confinement under Article ll.07,and despite numerous attempts to inquire from the Tarrant County Texas District Clerk,District Attorney's,and/or from the clerk of the Court of Criminal Appeals,all via letters ' am the attached Appendix to this mandamus trying to diligently noti- fy./) the .Relator as to why his habeas corpus proceeding is being delayed. Thus, Relator has met all requirements for mandamus relief ,he respectfully requests that this this Cburt of Criminal Appeals grants hi~ mandamus and/or direct the Respondents to appoint someone to make a findings of fact,approve it and or order the Tarrant County,Texas District Clerk to transmit his writ to the Court of Criminal ~peals of Texas. (See attached Appendixe$.

PRAYER WHEHEREFORE,PREMISES CONSIDERED,Relator respectfully prays that the Honor- able Court of Criminal Apppeals grants this foregoing writ of mandamus and thereafter direct the Respmdents make its findings and transmit his habeas corpus to this Court of Criminal Appeals.

Respectf~ubmitted, /. B ·~ . P~np 084 iolrpo15 1 4. VERIFICATION "My name is Bobby Huckaby #l777084,and I am filing this mandamus and I have read the writ of mandamus and I verify,under penalty of perjury that every statement is within my personal knowledge,is true and correct.

£,)~ il..drxb lr/c¢ot5 BOBBY H KABY#l7770 . ,2nd Coffield Unit 2661 FM 2054 Tennessee Colony,Texas 75884

CERTIFIDCATE OF SERVICE This is to certify that on October 1,2015,a true and correct copy of this fo- regoing document was sent u.s.prepaid mail to the Clerk of the Court of Crim- inal 8ppeals at P.O.Box 12308,Capitol Station,Austin,Texas 78711. EXECUTED ON THIS 7th day of October,2015.

fo&:z~ tc/nhd5 Coffield Unit 2661 FM 2054 Tennessee Colony,Texas 75884

5. APPENDIX APPENDIX APPENDIX APPENDIX APPJB:NDIX APPENDIX APPENDIX FILED THOMAS A WILDERJ))ST. CLERK Mr. Bobby Huckaby, Applicant TARRANT COUN 1 r, TEXAS TD~J# 1777084-Coffield 2661 FM 2054 AUG 3'1 2015 Tennessee Colony, TX 75884 I _ _ _ __ TIMI~:;,;.._.___

BY_ _ _ _ _ DEPUTY HONORABLE THOMAS WILDER Tarrant County District Clerk 401 w. Belknap Fort Wort~, Texas 76196-0402

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Tuesday, Aug~st 11th, 2015

HONORABLE THOMAS WILDER: Dear Mr. Wilder, enclosed, please find two (2) sets of my APPLICANT'S STATED OBJECTIONS TO DELAYS ON WRIT, to be filed under the above-listed I

Writ number.

'Pl~ase submit one (1) set to the Trial Court; andj keep one (1) set for your records in the District Clerk's Office.

~y copies of the above, I am notifying the following parties which ~re listed on Page 4 herein:

1). Asst. District Attorney John E. Meskunas (State's Attorney); ,2). Attorney .Brian J. Willet ( 2012 Trial/Defense Attorney); and, 3). The Honorable Abel Acosta, Clerk, Tx. Court of Crim. Appeals, at Austin, Texas.

Thank you very much for your public services and professional assistance in the above matter. Sincerely yours

~~afJ.J'5~~~y, Pro-se Applicant/ TDCJ# 1777084 2661 FM 2054-Coffield Unit Tennessee Colony, TX 75884

ENCLOSURES: 2 set~

BH/lg (CC: Files) THOMASA FILED TARRAN'm8o~~~~T. CLERK . 'EXAs WRIT NO. C-3-010482 - 1247332-A AUG 3·1 2015 TIME EX PARTE § IN THE CRIMINA Iey>l'I"::;~'TlfRR":ii'1C~'ff------- § 0EPUrY BOBBY HUCKABY § COURT NUMBER 3 OF (Applicant) § § TARRANT COUNTY, TEXAS, Ft. Worth

"[§11.07 TX.C.C.P.]APPLICANT'S STATED OBJECTIONS TO DELAYS ON WRIT"

£0 THE ~ONORiBtE JUDGE OF SAID COURTS:

COMES NOW THE APPLICANT, BOBBY HUCKABY, Pro-se, by and through

himself, and makes this his "APPLICANT'S STATED OBJECTIONS TO DELAYS"

in the procedural time limits of his Tx.c.c.P. Art. §11.07 et seq

Writ of Habeas Corpus, which was filed over 35-days ago. Applicant

will show the convicting Court and the Texas Court of Criminal App-

eals (at Austin, Texas) the following facts and objections~ to wit:

I.

THE 27-YEAR PLEA BARGAIN WAS VOID DUE TO MHMR ISSUES ; FOR IMPROPER ADMONISHMENTS; AND, FOR~:INEFEECTIVE ASSISTANCE OF COUNSEL

Applicant has challenged the fact that there are controverted,

previously unresolved facts material to the legality of the Appli-

cant's·indictment, conviction, and confinement in Cause No. 12477332D.

Applicant asserts there are also collateral consequences (TDCJ-ID's

. Healthcare/MHMR system is impacted due to overcrowded conditions,

and thus is unable to render proper MHMR treatments equal to a State

Mental Hospital(s) similar to Applicant's past commitments) which

renders the Applicant's guilty plea involuntarily and unwillingly

and unknowingly entered into. Applicant was coerced to plea guilty.

Applicant objects that he has experienced several intentional

delays in this State Habeas Corpus Proceeding, violating Procedural

Time Limitations (see §11.07 Sec. 3{b),(c),and (d) ) totalling 35-

-1- d"ays for the State ......Prosecutor and the Trial Court to process the

writ so it may issue by oper~~ion of law. Thereafter, ~hen the 35-

~ays has elapsed, the Trial Court must transmit the habeas ciorpus

transcript to Texas Court of Criminal Appeals for a final ruling.

A. OBJECTION NUMBER ONE:

Applic~nt did not WAIVER the 35-day_procedural tim~ limit,

yet the State'~.Attorney _sou~ht an unauthorized extensi~n ~n the

form of a DESIGNATION as reflected in the State's Response To' App;li-. '· . . . ·'· cation~Foi,~r{~'~f.Ha~eas Corpus (5 p~~~s) and attach~d MEMORANDUM;

and.· ORDER . ( 2 pag~s) th~ t Applicant . received on ·or a~o~\: J~ne 27th~ 2015 ~- The State's Attorney moved the Court to DENY APPLICANT'S PER-

SONAL-APPEARANCE AND PARTICIPATION at the p~oposed -E~ideritiary Hear- ' ing, thereby abridging his habeas corpus rights and-prfvi;I.eges. The

Applicant ls proc~eding in Pro-se and has no atto~ney to answer for

him at . any purported :. . Evidentia~·y. . .. ' Hearing : . that may. be- .conducted. . The· ':·

' . Applicant's . established MHMR statu~, . . '. in . addition to ,. no appointed . ' '. . habeas corpus attorney for adequate representation, violates the

accepted . guarantees of Due Process and Equal Protections inhere~nt

in the Texas Constitution at Article I, §§ 10 and 19 of the.Bill of

Rights. Applicant objects and ~akes exception to these violations.

B. OBJECTION NU~iER TWO: · Applicant obje6ts that has not been served with a copy of his

Trial Attorney's habea~ corpus-response Affidavit, within the stated

time limit of August 3rd, 2015 (see Page 2. of STATE'S RESPONSE, supra; I

arid, Pages 1-2 of attached ORDER). Attorney Brian Willet's ORDERED

08/03/15 AFFIDAVIT has not been served upon the Applicant ~s of this

date of 08/11/2015. -2- c. OBJECTION NUMBER THREE

Finally, Applicant objects that these unnecessary delays are

perverting the Interests of Justice in that said delays are ptejud- . . . . . icing and violatirig the Apblicant's St~te Procedural and State Con-

stitutional rights, as well as, his Federal Con~ti tution~l rights.

Applicant's 1nd1ctmenE, ¥epresentat1o~, a~d illicit plea bargain· .~-

negotiations were fundamentally d.efecti ve, -and . the ~rial Records

and the AciREED PLEA HEARING DF MARCH 2ith, ibl2 ("~.O.F.'s") veiify

a~~ supports his me~itorious alle~ations in this State Habeas Cor- pus Writ Proceeding'.

A~plicant prays t~is Honorable Court ~nd .the Texas Court of

.Criminal Appeals will recognize the deceptive tactics employed by I . . .· . . :. . . ·.· I ·.

the State's Attorney and.the Applicant's former Trial A~torney, the

Honorable Brian Willet, to delay these p~oceedings. garm has at~­

ached, and. the prohibition against ) the· Appl':i.cant 's p·articipation ...

ih the requested EVIDENTIARY HEARING (see Page 2 of State's Response)

denies the Applic~nt c6mpulsory process of ~he law (Art.!, §10, Tex-

as Constitution's Bill of Rights of 1876; Tx.C.C.P. Art. 11.07).

T~is shows preferential treatment to the State which transgresses

the fairnes~ d.octrines of the Ame~ican Adversary protocols. Appli-

cant prays for general relief from the Texas Judiciary system~

SUBMITTED ON THIS 11th DAY OF AUGUST, 2015 by Applicant. Respectfully:

v{5J~1

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THE APPLICANT'S CERTIFICATE OF SERVICE (* See footnote below)

A true copy of the above and foregoing 3-paged written inst-

RUMENT (OBJECTIONS) has been posted, via u.s. Mail Depository Box,

to the following parties:

1). Tarrant County District Clerk's Office/ Hon. ·Thomas Wilder, 401 w. Belknap, Fort Worth, Texas 76196-0402, for filing. 2) • Assistant District Attorney JOHN E. MESKUNAS, Tarrant Co. District Attorney's Office, 401 Belknap, Ft. Woth, Tx. 76196.

3}. Honorable Abel Acosta, Clerk, Texas Court of Criminal Appeals, P. 0 .. Box 12308-Capi tol Station, Austin, Tx 78711 · ( 512) 463-1551. 4). Defense Attorney Brian J. Willet, P.C., 1901 Central Dr., #61G, Ft. Worth, ~exas 76196 (817) 267-1009.

APPLICANT BOBBY HUCKABY (Certifier herein)

*[ PLEASE NOTE: as a confined prisoner in the TDCJ-ID, Applicant has no access to a photocopier's services; thus, this written intrument must be forwarded to the Applicant's family for photdcopies and posting to the above-listed four (4) parties. Such may incur another week delay for service on the parties.].

l 7 BOBBY HUCKABY, Pxo-se

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