in Re Michael Lynn Eaton

• Court: Court of Appeals of Texas
• Decided: May 6, 2015
• Docket: 12-15-00118-CR
• Status: Published

Opinion

April 24, 2015

FILED IN COURT OF APPEALS 12th Court_o^ADpealsJpistrict Cathy 5. Lusk, Cleric 12th Court of Appeals Suite 354 1517 W. Front Street Tyler, Texas 75702 \a-V5-oo 11&<£- TYLER 1 fcXAb CATHY S. LUSK, CLERK | Re: Michael Lynn Eaton Criminal Application tor Writ of Mandamus Frcau 115th Judicial Dist. Court, Upehur Count*, Tx. Cause nc. 15074

Dear Court Clerk;

Enclosed with thie cover letter, please find Relators Abdication for Writ of Kandassua (4 pe^ea)

Please consider this an original application and open a file tor sax*.

Relator certifies that all parties subject to this application for Writ of Mandamus have been served with a copy of this application by U.S. Mil.

If you have any questions or concerns please do not hesitate to contact we at the address or phcrie number Hated below. I thank pm in advance for j'our tins and considerations in processing ray application.

Sincerely,

Michael Lynn Baton Relator, ^ro-se 1652213 Beto Unit 1391 FM 3328 Tennessee Colony, Tx. 75860 (903) 928-2217

cci Carolyn Parrot, Upshur County District Clark Deanna Drennan, Court Reporter for Upshur County Upshur County District Attorneys Office file cwB.ia-i.T-re/tfi-cg- MICHAEL LY»i EATOW, IN THE 12TH COURT OF APPEALS Relator

v.

115TU DISTRICT COURT OF UPSHUR COUNTY, § CAROLYN PARROTT, DISTRICT CLERK \ DhAtm DREMsAK, COURT REPORTER, f Respondents I J jr; fiikq APPUCA1ION FOR WRIT OF W^HLEATHYS^U^^ TO THE HONORABLE JUDGES OF THE TWELFTH COURT' OF APPEALS; COMES NOW, hichael

Lynn Eaton, Relator ano files this Application for Writ of Mencamue directing the Respondent sitting Juc^e of the 115th Judicial District Court of Upshur County, Texas to instruct/order the Respondent District Clerk and Court Reporter to choose one of teh three (3) methods offered to thee tc provide Relator with the copies of relators Records relating to his conviction in Cause no. 15074 aIon* with a MM of the Transcript of the Plea Hearing in this cause of action, so that Relet** can prepare and perfect hifts Appeal of his conviction via an 11.07 Writ of habeaa corpus.

I JURISDICTION

in* iith Ccust ex Appeals has exclusive and original jurisdiction over this Mandamus Petition pursuant to Art. 5§8 of the Texas Constitution en© yajMMMt to the Texas government Code §24.007 and 24.309.

IX HISTORY OF PREVIOUS REQUESTS / EXHAUSTION OF REMEDIES

1. On August 31, 2012, the Upshur County Clerks office referred Relator to contact the Court Reporter to request a copy of his Court Transcripts. 2. On February 19, 2013, Relator requested a ptg* and cost summary from the Upshur County District Clerk and Court Reporter. 3. On March 2o, 2C13, Relator submitted a follow-up letter to the Upshur County District Clerk after receiving no response from either office. 4. On April 15, 2013, the District Clerk cited a 1.00 per pe*e cost tor copies and ayain referred Relator to contact the Court Reporter. 5. On April 21, 2013, Relator submitted (a^ain) letters to both the District Clerk and the Court Reporter requesting a page ano cost summary (ie to provide the number of pages and costs per document), 6. On May 6, 2013, Respondent, District Clerk again quoted the l.oo per pays cost but again failed to provide the page count or summary requested by Relator. Again the Court Reporter failed to respond to Relators request. 7. On May 22, 2013, Relator once again clearly pointed out to the District Clerk that he needed a page arid cost summary and needed this "total* in order to affect a withdrawl from his Inmate Turst Fund Account. 8. On July 8, 2013, after further inquiry was not responded to, filed objection to the clerk and Reporter fees in motion form along with an attached affidavit of inability to pay costs (In Forma Pauperis). Wo response was made by either the District Clerk or the Court Reporter. The notion was not heard. 9. On December 23, 2013, after researching the options I had, prepared and submitted an application for Writ of Mandamus, including six exhibits and •ailed sane to the 115th District Court arid sending copies to the Upshur County District Attorneys office and the District Clerk. My Mandamus was refused by the District Clerk, and thus was n»vmt heard or considered. 10. On September 26, 2014, again after additional research and consultation, and again after' no responses by the District Clerk/Court Reporter or rulings by the Court, Relator again sent his "proposed* three options for the Clerk to choose free so as to previde delator with his requested copies of Records and Transcripts. The Options were 1: A personal copy (free), 2: a copy on loan, or 3: to pay .10 per page for copies. 11. On October 14, 2014, Relator received his FIRST response from the court Reporter. The Court Reporter did not "choose" one of the three options, and provided Relator with an "estimated cost of $2,00u.00" for the Court Reporters record without a page or cost summary or any page counts. The Clerk die not respond to Relators request nor choose any of the three options. It does not appear that Relators In Forma Pauperis was processed. 12. On January 8, 2015, Relator filed formal motions in the Trial Court one motion titled "Motion Requesting Preservation of Evidence" and the second titled "Motion Requesting Transcripts". Relator sent copies to the District Clerk, the Court Reporter, and to the District Attorneys Office. Relator formally requested that his motions be brought before the Court and that a HEARING be held to consider and rule upon his motions. Relator did not receive a reply from the Clerk or Court lUfiiatai' No hearing was ever scheduled or held on his motions.

13. On March 20, 2015, Relator prepared and sent a letter directly to the Judge of the 115th Judicial District Court, the Honorable Lauren Parish, requesting that the Judge look into and inquire as to why Relator was not getting the copies necessary for his Appeal and as to what the problem was for the Clerk or Court Reporter in choosing one of the three options. Mo response was received from the Judge by the Relator. The Relator has heard nothing further from the Court Clerk or Court Reporter. No hearing has been held.

Ill ARGUMENT AND AUTHORITIES

Pursuant to Texas government Code $52,047, it states (a) "A person may apply for a transcript of ten evidence in a case reported by an official court reporter* The person must apply for the transcript to the official court reporter. The official court reporter SHALL furnish the transcript to the person 'no later than the 120th day after the date the; 1) application for the transcript is received by the reporter; and 2} transcript fee is paid 'or the person eetablishes indigency as provided by rule 20 of the Texas Rules of Appellate Procedure.' Relator fully complied with TRAP Rule 20 and has submitted his application to proceed In Forma Pauperis. Relators claim of indigence has not been contested. The District Clerk appears not to have complied with TRAP Rule 20 and has not sent a copy of his In Forma Pauperis to the Court Reporter (based upon her response to quote Relator a cost of $2,000.00 for his Court Records)(Id. #11 herein). Since the Respondents have not timely filed a contest to Relators In Forma Pauperis Application , Relators allegations of indigence "will be deemed true" and Relator "will be allowed to proceed without advance payment of costs". TRAP Rule 20. See also TRAP Rules 40(e)(3) and 53(j). Relator has made a prima facie showing of indigence. Horn&by v. State, 65 SW3d 801 (Tx. 2001) See also. Mcfatridye v. State, 309 SW3d 1 (TCA 2010). "An indigent criminal defendant has the constitutional ri*ht to a free appellate record in his first appeal of right" quoting Scott v. State, 80 SW3d 184 (2003). (App. 10 2003), See also: Turner v. State, 71 SW3d 928 (App. 10 2001)(USCA amend, 14) "Trial court Judge had authority to hold hearing on defendants motion for a free reporters record" TRAP Rule 20.2. r. g, .state. 55 SW3d 625. According to Sparkman Relator must request Record from Court Reporter and request a hearing en his application. Relator has cccrpiieo with both requirements. It is well settled and "there is no question that an indigent defendant is entitled to a free transcription of prior proceedings for an effective defense or appeal." quoting Lav-son v. State, 696 SW2d 828 (Tx.App. 13 1995)/ See also. Britt v. Worth Carolina, 92 Set. 431,433 (1971), Griffin v. Illinois, 76 Set 565, Biliie v. State, 605 MM 556,565 (TCA 1980), and Anaour v. State, 606 SW2d 891,4*93 (TCA i960). In the- case of White v. State, ftS SW2b 15 (App 8 1990) this Texas Appellate Court cited Britt where the U.S. Supreme Court identified two factors in the establishing of a need for transcripts and records. They said that 1) the value of the transcript of the former trial to the defendant in connection with the Appeal or trial for which it is sought, and 2) the availability of alternative devices that would fulfill the same function as the transcript Britt @434. Britt made it clear that it will be assumed that the transcript is of value and the "State bears the burden of disproving either of the above mentioned factors." Appellant states for the record that he has no other means of obtaining the documents, records, and transcripts but through the Clerk and Court Reporter. Relator has provided three options to chooe from to provide the documents he requests, including a reduced fee which Relator , even though he is indigent, has agreed to pay. Relator , at the least believes he has met the burden to be excused by statute from paying these fees by virtue of his affidavit of indigency. See: In re Lee Children, 36 SW3d 702 (App. 10 2001) Relator believes that the denial of his requests represents an unreasonable interference with his riflht to pursue hsi appeal and his access to the courts. (Tx.Const. Art 1$13), (USCA Amend. 1). Seat Dallas County v. Sweitser, 881 SW2d 757 (App. 5 1994). Relator will be filing his request for leave to Appeal with his Habeas Corpus. RELIEF REQUESTED / PRAYER

PREME81S CONSIDERED, Relator, Michael Lynn Eaten PRATS that this Honorable Court of Appeal OUK hsi application for Writ of Mandamus by virtue of the facte and arguments contained herein, that they agree that Relator nee no other remedy at law to compel the Trial Court to perform a ministerial function to provide him with the papers to prosecute his appeal and that this Court ORDER the Trial Court, District Clerk, and Court Reporter to choose one of three options offered by Relator and forthwith provide him with the copies ne has requested.

Respectfully submitted,

Michael KgM Eaton Relator, Pro-se 1652213 leto Unit 1391 FM 3328 Tennessee Colon*, Tx. 75880 (903) 92S-221? UNSWORN DECLARATION

I, Michael Eaton, do hereby swear under the penalty of per^ur^ that the facts and statements mace herein are true and correct.

Sworn and signed on this the H. day of gjftjs ,2015, __ •^ M.

CERTIFICATE OF SERVICE

I, Michael Eaton, do hereby certify that I placed a copy cf this "Mandamus" into a proper wrapper with sufficient pre-paid U.S. first class postage aitaxed, and adressed same to the parties listed here below and placed same into the available mailing system used for such legal mail. ffl/foLA_M/Z^L- Certified on this the ^day of fiffiu , 2015. Michael Lyi SENT TO:

CATHY S. LUSK, CLERK TWELFTH COURT OF APPEALS SUITE 354, 1517 W. FRONT STREET, TYLER, TEXAS 75702 CAROLYN PARRCTT, DISTRICT CLERK AND DEANNA DkENNAN, COURT REPORTS*. 115TH JUDICIAL DISTRICT COURT OF UPSHUR COUNTY 405 E. TITUS STREET, PC BOX 1052 CILMRE, TEXAS 75644-1052 UPSHUR COUNTY DISTRICT ATTORNEYS OFFICE, 115TB JUDICIAL DISTRICi COURT 405 E. TITUS STREET, GILMER, TEXAS 75644-1052

cc: file