in Re Julis Edward Perales

Opinion

ACCEPTED

02-15-0001-CV

SECOND COURT OF APPEALS

FORT WORTH, TEXAS

1/9/2015 2:59:16 PM

DEBRA SPISAK

CLERK

IN THE COURT OF APPEALS

FOR THE SECOND DISTRICT OF TEXAS FILED IN 2nd COURT OF APPEALS

FORT WORTH, TEXAS

1/9/2015 2:59:16 PM

IN RE § DEBRA SPISAK JULIS EDWARD PERALES § NO. 02-15-00001-CVClerk §

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, the Real Party in Interest, the State of Texas, by and through the Hon. Sharen Wilson, the Criminal District Attorney of Tarrant County, Texas, and hereby responds to the relator’s application for writ of mandamus.

IDENTITY OF PARTIES AND COUNSEL The relator in the present cause is Julis Edward Perales, who has filed an application for writ of habeas corpus challenging his conviction for capital murder in the underlying cause, styled Ex parte Julis Edward Perales, cause number C-396-009930-1005465-A. The respondent is the 396th Judicial District Court of Tarrant County, Texas

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(herein after “the trial court”). The real party in interest is Sharen Wilson, the elected criminal district attorney of Tarrant County, Texas (herein after “State”).

The relator is proceeding pro se on this petition for writ of mandamus and on his underlying application for writ of habeas corpus. The real party in interest is represented by Steven W. Conder, 401 W. Belknap, Fort Worth, Texas 76196-0201.

TABLE OF CONTENTS

Identity of Parties and Counsel ....................... 1 Index of Authorities .................................. 3 Statement of the Case ................................. 4 State’s Response to Issue Presented ................... 5 Argument .............................................. 6 A. Jurisdiction ................................... 6 B. Relator Not Entitled to Mandamus Relief ........ 7 1. No Clear Abuse of Discretion .............. 8 2. Other Adequate Legal Remedies ............. 9 Conclusion ........................................... 10

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Prayer ............................................... 10 Certificate of Service ............................... 11 Certificate of Compliance ............................ 11 Appendix A ............................. Writ Application Appendix B ............ State’s Proposed Findings of Fact

INDEX OF AUTHORITIES

Cases

Ashorn v. State, 77 S.W.3d 405........................................ 6

Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304 (Tex. 1994)........................ 7, 8

Ex parte Harleston, 431 S.W.3d 67 (Tex. Crim. App. 2014)................. 8

In re McAfee, 53 S.W.3d 715 (Tex. App. – Houston [1st Dist.] 2001)......................... 7, 9

In re McCoin, 2004 WL 612815 (Tex. App. – Texarkana 2004).......... 9

In re Menniefee, 2014 WL 5474798 (Tex. App. – Dallas 2014)............ 7

Perales v. State, 2008 WL 4531659 (Tex. App. – Fort Worth 2008, pet.... 4

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Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996)........................... 8

Statutes Tex. Code Crim. Proc. art. 11.05 ...................... 6 Tex. Code Crim. Proc. art. 11.07 §3(d) ................ 9 Tex. Govt. Code §22.221(d) ............................ 6

Rules Tex. R. App. P. 9.4(e) ............................... 11 Tex. R. App. P. 9.4(i) ............................... 11 Tex. R. App. P. 9.4(i)(1) ............................ 11

STATEMENT OF THE CASE

The relator was convicted by a jury of the offense of capital murder on July 19, 2007, and was sentenced to life confinement. See Judgment, cause number 1005465D. This Court affirmed his conviction on October 9, 2008. See Perales v. State, 2008 WL 4531659 (Tex. App. – Fort Worth 2008, pet. dismissed).

On June 18, 2013, the relator filed an application for writ of habeas corpus with the trial court raising ten

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grounds for relief. See Ex parte Perales, No. C-396- 009930-10005465-A (application). His application remains pending with the trial court. 1 On January 5, 2015, the relator filed this petition for writ of mandamus requesting the Court order the trial court to rule on his motion for an evidentiary hearing. See Original Application for Writ of Mandamus - cause number 02-15-00001-CV. The Court has ordered the State to respond to the relator’s petition by January 20, 2015.

STATE’S RESPONSE TO ISSUE PRESENTED This Court lacks jurisdiction to consider the relator’s application for writ of mandamus because it concerns the issues raised in his article 11.07 application for writ of habeas corpus. Alternatively, the relator is not entitled to mandamus relief because the trial court’s

1 On July 23, 2014, the State filed proposed findings of fact and conclusions of law in which it agreed that the relator is entitled to a new sentencing hearing because he received a life without parole sentence for a crime that he committed when he was seventeen years old. See Ex parte Perales, C-396-

009930-10005465-A (proposed findings of fact and conclusions of law).

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inaction is not a clear abuse of discretion and he has other legal remedies.

ARGUMENT

A. Jurisdiction An intermediate court of appeals has no jurisdiction relating to applications for habeas corpus relief in connection with criminal proceedings. See Ashorn v. State, 77 S.W.3d 405, 409 (Tex. App. - Houston [1st Dist.] 2002, pet. refused). The Texas Government Code limits the habeas corpus jurisdiction of intermediate courts of appeals to civil matters. See Tex. Govt. Code §22.221(d). By contrast, the Texas Code of Criminal Procedure places habeas corpus jurisdiction over criminal matters with the Court of Criminal Appeals, the district courts and the county courts. See Tex. Code Crim. Proc. art. 11.05.

Article 11.07, which provides the exclusive procedure for habeas corpus relief from a non-death penalty felony judgment, contains no role for the intermediate courts of appeals; the only courts referred to are the convicting

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court and the Court of Criminal Appeals. See In re McAfee, 53 S.W.3d 715, 718 (Tex. App. – Houston [1st Dist.] 2001); In re Menniefee, 2014 WL 5474798 (Tex. App. – Dallas 2014) (not designated for publication). Accordingly, the intermediate courts of appeals have no mandamus jurisdiction in matters related to pending petitions for writ of habeas corpus. See In re McAfee, 53 S.W.3d at 718; In re Menniefee, page 1. 2

B. Relator Not Entitled to Mandamus Relief Mandamus is an extraordinary remedy, available only in limited circumstances. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994). A relator seeking mandamus relief must show (1) that a respondent either failed to perform a clear legal duty or committed a clear abuse of discretion; (2) that the relator’s legal remedies are inadequate; and (3) that the petition raises important

2 In fact, In re Menniefee deals with this exact same situation of a trial court’s inaction on a motion for an evidentiary hearing in an article 11.07 habeas corpus proceeding. See In re Menniefee, page 1.

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issues for the state’s jurisprudence. Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996). Such a limitation is necessary to preserve “orderly trial proceedings” and to prevent the “constant interruptions of the trial process by appellate courts”. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d at 305. Consistent with this narrow approach to mandamus, a heavy burden of showing an abuse of discretion as well as the inadequacy of a remedy by appeal is placed on the relator. Id.

1. No Clear Abuse of Discretion The trial court’s conduct in not considering the merits of the relator’s request for an evidentiary hearing is not a clear abuse of discretion.

Article 11.07 permits a trial court to conduct a live hearing, as well as consider affidavits, depositions, interrogatories, and the judge's own personal recollection if the habeas judge was also the trial judge. See Ex parte Harleston, 431 S.W.3d 67, 70 (Tex. Crim. App. 2014); Tex. Code Crim. Proc. art. 11.07 §3(d). Nothing in article

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11.07 requires a trial court to conduct a live hearing in order to resolve an article 11.07 application for writ of habeas corpus. See Tex. Code Crim. Proc. art. 11.07 §3(d). See also In re McCoin, 2004 WL 612815 (Tex. App. – Texarkana 2004) (not designated for publication) (article 11.07 writ applicant not entitled to a live evidentiary hearing).

Thus, the trial court had no obligation to rule on the relator’s motion and, likewise, did not clearly abuse its discretion by not ruling on the relator’s motion.

2. Other Adequate Legal Remedies The relator has other adequate legal remedies for challenging the trial court’s inaction on his motion for an evidentiary hearing. Specifically, he may seek mandamus relief from the Court of Criminal Appeals to complain about an action or inaction of the convicting court. See In re McAfee, 53 S.W.3d at 718.

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CONCLUSION

This Court lacks mandamus jurisdiction in matters related to pending article 11.07 applications for writ of habeas corpus. The relator is not entitled to mandamus relief because the trial court did not clearly abuse its discretion, and he has other legal remedies.

WHEREFORE, PREMISES CONSIDERED, the State prays the Court deny the relator’s petition for writ of mandamus.

Respectfully submitted,

SHAREN WILSON

Criminal District Attorney Tarrant County, Texas

DEBRA WINDSOR

Chief, Post-Conviction

/s/ Steven W. Conder

STEVEN W. CONDER, Assistant Criminal District Attorney 401 W. Belknap

Fort Worth, Texas 76196-0201 (817) 884-1687

FAX (817) 884-1672

State Bar No. 24073106

COAAppellatealerts@tarrantcou ntytx.gov

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CERTIFICATE OF SERVICE

A true copy of this mandamus response will be mailed to the realtor, Mr. Julis Edward Perales, TDCJ-ID #01449158, Hughes Unit, Route 2, Box 4400, Gatesville, Texas 76597, on this, the 9th of January, 2015. A true copy of this mandamus response will be hand-delivered to the respondent, the Hon. George W. Gallagher, Judge, 396th Judicial District Court, 401 W. Belknap, Fort Worth, Texas 76196, on this, the 9th of January, 2015

/s/ Steven W. Conder

STEVEN W. CONDER

CERTIFICATE OF COMPLIANCE This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This document complies with the word-count limitations of Tex. R. App. P. 9.4(i) because it contains approximately 1067 words, excluding those parts exempted by Tex. R. App. P. 9.4(i)(1), as computed by

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Microsoft Office Word 2010 - the computer program used to prepare the document.

/s/ Steven W. Conder

STEVEN W. CONDER

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