in Re Royce William Tawater

• Court: Court of Criminal Appeals of Texas
• Decided: August 12, 2015
• Docket: 06-15-00142-CR
• Status: Published

Opinion

cAUsE § Rsr_:£;lv&o-m-_-_-_ RoYCE wILLIAM TAWATER, The §i=§§¢rl;r§i‘/A,FC,?F.-als§ ., IN THE coURT oF APPEALS Relator ,, § ' Aurz1 z 2015 _ _ _ v. § SIXTH DIsTRICT oF TEXAS Texaré

ORIGINAL APPLICATION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUDGES OF‘SAID COURT:

COMES NOW, ROYCE WILLIAM TAWATER; "Relator" pro se in the above-styled and numbered cause of action and files this Original Application for Writ of Mandamus pursuant to Texas Government Code §52.047(b) and would respectfully show the Court

as follows:

I. RELATOR Royce William Tawater is an offender incarcerated in the TDCJ-CID and is ap- pearinq pro sel who can be located at the Beto Unit, Anderson County, 1391 FM 3328 Tennessee Colony, TX 75880. Relator has exhausted his remedies and has no other adequate remedy nat law. The act sought to be compelled is ministerial not discr- etionary in nature. Tex. Gov't. Code §52.047(b) requires Respondent to "determine a reasonable fee" once objections are made, for a duplicate copy of the Clerk and

Reporter's Record.

II. RESPONDENT The Honorable Richard A. Beacon, Jr., is the Presiding Judge of the'354th Judicial District Court in Hunt County, Texas, and presided over Relator's trial. Respondent has a ministerial duty to establish a "reasonable fee" for a copy of

the official record pursuant to Tex. Gov{t. Code §52.047(b) after objections by

Relator have been filed.

III. VIOLATION OF TEX. GOV'T. CODE § 52.047

Relator was convicted of the offenses of Possession of a Firearm by a Felon,

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(Trial Court Not 29,503); Aggravated Assault w/Deadly Weapon, (#29,310); Deadly Conduct, (29,311). vSubsequently, Relator's convictions were affirmed by this Court under cause number(s) 06-14-00075-CR; O6-l4-OOO94-CR, and; O6-14-OOO95-Cr, respec- tively. In that process Relator was found to be indigent by the trial court and a free record was prepared. Appointed counsel did not forward a copy of the official record to Relator after repeated requests to do so. ,

On March 23, 2015 Relator submitted letters of inquiry to both the district clerk of Hunt County and the 354th's court reporter* seeking page/cost summarys for those respective portions of the record in this cause. On April 12, 2015 after nearly three weeks and no response by either office, Relator submitted follow up jmletters again seeking the same information. Two weeks after that fact Relator, on May 3, 2015, filed his formal Objections to the Clerk and Reporter's non-res- ponsiveness and the normal fees associated with copies. Contained within those objections was an Affidavit of Inability to pay costs from.Relator, a Notice of Intent to appealv to this `Court if no action was forthcoming in a timely manner, and an offer -to pay .lO¢ per page for the records. Relatory per policy, served the Hunt County District Attorney with a copy of the Objections who, in turn, did not oppose the petition. Two days after the petition's submission, the district clerk sent la $l.OO per page price quote; received by Relator 5 days later. Two more letters of inquiry - seeking the status of the Objections were transmitted: by Relator; dated June 14, & 24, 2015. No responce was tendered`.-l

In order to be entitled to mandamus relief a relator must establish Respondent: a) had a legal duty to perform a non~discretionary'act, (i.e. Texr'Gov't- Code §52.047(b); b) was asked to perform the act, (i.e. Objection to Clerk and Reporter's FeesW, and; c) failed or refused to do so, (i.e. letters dated 06/14/15 &~06/24/15. See: IN RE MOLINA, 94 S.W. 3d 885, 886 (Tex. App.-San Antonio 2003); SAFETY;KLEEN CORP. v. GARCIA, 945 S.W. 2d 268, 269 (Tex. App.-San Antonio 1997) ("When a properly filed motion is pending before the trial court, the act of giving consideration to and ruling upon that motion is ministerial, and mandamus may issue to compel' the trial judge to act." Further, "Mandamus will not issue unless the record ind-

icates that the properly filed motion has awaited disposition for an unreasonable

* Erooalme reanes thm: a rektor num:escidt§la‘narmdpxtox;yijelrzehzmanio¥§ uuzms ani any las?ns"fue"cnpks. I¥eddghtdscfiie

amount of time.")

IV. REQUEST FOR RELIEF

Relator needs the aforementioned records so as to meet the heightened requir- ements of.Articel 11.07 of the Texas Code of Criminal Procedure and 28 U.S.C. §2254. Relator has proffered, in good faith, .lO¢ per pege for copies of the Clerk and Reporter's Record instead of the $1.00 per page customarily required by Hunt County. As noted, these records were prepared at no cost due to Relator's indigency and is now a simple matter of photocopying them. Ten (.10¢) cents per page is a "re- asonable fee" and Relator would respectfully ask the Court to compel Respondent to "determine" if it is appropriate considering any "difficulty" in reproducing

it.

WHEREFORE, PREMESIS CONSIDERED, Relator prays this Court grant leave to file this 0riginal Application for Writ of Mandamus, Order the District Clerk of Hunt County to forward a Supplemental Record in this cause encompassing the herein referenced documents and after review of suchl compel Respondent to comply with Texas Govern- ment Code §52.047(b) and to such other and further relief to which Relator shows himself entitled to.

Re tfully submitted,

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Royce . Tawater, Relator, Pro Se AFFIDAVIT OF RELATOR My name is Royce William Tawater. I am the Relator in this cause of action and am personally acquainted with all the facts and allegations in this petition. I believe I have a meritorious case and will prevail on those merits."

Executed on this the 8th day of August, 20

Royce W. Ta ater, Affiant

C.c. Hunt County District Attorney' file/rt

UNSWORN DECLARATION _ “I, Royce W. Tawater, TDCJ-CID #1950643, being presently incarcerated at the Beto Unit of the TDCJ-CID, declare under penalty of perjury that the above and

foregoing are both true and correct."

Executed on this the 8th day of August, 2015

_/Q

Royce W. Tawater

CERTIFICATE OF SERVICE This is to further certify that I have mailed a true and correct copy of this Original Application for Writ of vMandamus to the Hunt County District Attorney, P.O. Box 1437, Greenville, TX 75403, First Class Mail, postage prepaid by placing -same in the 'Beto Unit's mail drop-boxl designed for that purpose on this the 8th

day of August, 2015.

TDCJ-CID #1950643

Beto Unit

1391 FM 3328

Tennessee Colony, Texas 75880

C.c. file/rt