Kay, Ervin

• Court: Court of Appeals of Texas
• Decided: August 7, 2015
• Docket: WR-83,710-01
• Status: Published

Opinion

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Mr. Ervin Kay August 3, 2015 TDCJ #1331828 Darrington Unit Rosharon, Tx. 77583 RECEiVED IN COURT OF CR!~mNAL APPEALS

TEXAS COURT OF CRIMINAL APPEALS AUG 07 2il15 Attn: Court Clerk P.O. Box 12308 Capitol Station Abet Atosta, Clerk Austin, Tx. 78711

Re: ENCLOSED "PETITION FOR WRIT OF MANDAMUS", CHALLENGE . TO THE 262nd JUDICIAL DISTRICT COURT, Cause No. 1028331& 1028332

Dear Court Clerk:

Enclosed, please find an Original Copy of .Relator's, "Petition For Writ Of Mandamus" to be filed before the Court, seeking to compel the lower court to alter an unwarranted five ( 5) year delay and Rule on the Constitutional Merits of his post-trial Claims, advanced in his 11.07., currently pending. Please file said 'Mandamus• before the Court, having the appropriate Jurisdiction over the same, at the Court's earliest convenierice. Your help in filing said 'Mandamus' before the Court, having the appropriate Jurisdiction over the same, at the Court's earliest convenience, would ·. be greatly appreciated. By copy of this letter and the enclosed 'Petition', I am forwarding a copy of the same to the Respondent, Hon. DENISE BRADLEY, Judge, 262nd Judicial District Court, Harris County, Texas~ Sincerely,

Ervin Kay Relator pro Se TDCJ #1331828 Cause No.

ERVIN KAY, § In The Texas Court (Relator)

vs. § Of Criminal Appeals

Hon. DENISE BRADLEY, Judge 262nd Judicial District Court, (Respondent) § Travis County, Texas

PETITION FOR WRIT OF MANDAMUS

Challenge To Cause No. 1028331& 1028332 In The 262nd Judicial District Court Harris County, Texas

TO THE HONORABLE JUDGES OF SAID COURT:

PLEASE TAKE NOTICE, that COMES NOW, ERVIN KAY, Relator,

Pro Se, in the above styled cause, files this his "Petition For Writ Of Mandamus", in good faith, contending Due Process

and the interest of justice would best be served by this Court

Granting the same, and in support thereof, your Relator would

present the following:

I.

JURISDICTION

That this Honorable Court has Jurisdiction to entertain said 'Petition' pursuant to Art. 22.221, et.al., Government 2

Code, Art. 1 Sec. 10, Texas Constitution; U.S.C.A., Amend. 5;

14.

II.

PROCEDURAL HISTORY

That your Relator was charged with the Offense of

Aggravated Robbery. Judgment was rendered against Relator

September 29, 2005. Direct Appeal was advanced in the 14th

Court of Appeals, located in Harris County, Texas. Relator

subsequently filed a State habeas Petition before the Court,

262nd Judicial District Court, Hon. MIKE ANDERSON, on January

7, 2010. Relator challenged the Constitutionality of his

confinement on the grounds of· • Involuntary Plea •; and

• Ineffective Assistance of Counsel. • Pursuant to the

provisions of Art. 11.07 Sec 3, et.al., V.A.C.C.P., the State

'Designated Issues To Be Resolved'. Said • Designation of

Issues To Be Resolved •, consisting of seven (7) distinct

points for resolution, was signed by the Trial Court, and

implemented more than five ( 5) years ago. As of this date,

the 'Designation Of Issues • has yet to be resolved, pursuant

to the provisions of Art. 11.07 Sec. 3.

III.

MINISTERIAL ACT

That your Relator asserts the act he seeks is wholly

• Ministerial'. Moreover, your Relator has no other remedy at 3

law to advance the Constitutional merits of :his claims towards

resolution, save for the filing of this his 'Petition For Writ

Of Mandamus. ' See In Re Jackson, 238 S. W. 3d 603, 605-606,

(Tex. App. - Waco 2007}; Padieu v. Court Of Appeals, 392

s.w. 3d 115, (Tex. Cr. App. 2013); Government Code,

Art. 22.021, et.al.; u.s.c.A., Amend. 5; 14.

IV.

UNREASONABLE DELAY

That your Relator challenged the Constitutionality of his

confinement, contending, inter alia, his plea was rendered

involuntarily, unknowingly and unintelligently, due to 'mental

impairment' and Counsel's, JEROME GOD INCH, rendering of

unreasonable, ineffective assistance of Counsel. More than

five (5) years has elasped since the 'Designation Of Issues'

to be resolved. Said delay, in ·resolving Relator's factual

allegations, is unreasonable. Relator has no other way to

compel the speedy resolution of his claims, as required by the

provisions of Art. 11.07 Sec. 3, et. al., save for the

advancement of this his 'Petition For Writ of Mandamus.'

WHEREFORE, PREMISES, ARGUMENTS and AUTHORITIES

CONSIDERED, your Relator prays and respectfully urge for this

Honorable Court to Grant said 'Mandamus', to accord Relator

the speedy resolution of his claim, in the interest of

justice. Relator further prays this Court would determine the

five ( 5) year delay is unreasonable, and that due process 4

would be best served by this Court compelling resolution of

the same. Alternatively, your Relator prays for whatever

other, further or different relief this Court deemed is just

and proper, including the Ordering of an 'Evidentiary Hearing'

to address the Constitutional Merits of Relator's Post-Trial,

unresolved allegations of facts, material to the legality of

his confinement, that warrants resolution to determine whether

or not your Relator is patently confined in breach of the

United States and Texas Constitution, in the interest of

justice. It is so prayed for.

Respectfully submitted,

ERVIN KAY Relator Pro Se TDCJ #1331828 Darrington Unit Rosharon, Tx. 77583 AFFIDAVIT

PURSUANT TO TITLE 6, CHAPTER 132, V.T.C.A., CIVIL PRACTICE

AND REMEDIES CODE, AND 28 U.S.C. § 1746:

I, ERVIN KAY, Relator Pro Se, being currently confined in

the Texas Department of Criminal Justice Institutional

Division, at the Darrington Unit, located here in Brazoria

County, Texas, have read the foregoing 11 PETITION FOR WRIT OF

MANDAMUS 11 , seeking to compel the Lower Court to respond,

hereby DEPOSE AND DECLARE under the pain and penalties of

PERJURY the foregoing • Petition For Writ Of Mandamus • is true

and correct to the best of Relator's belief and knowledge.

EXECUTED ON THIS THE --1.~"" DAY OF 4~~ I 2015.

ERVIN KAY Relator Pro Se TDCJ #1331828 Darrington Unit Rosharon, Tx. 77583 CERTIFICATE OF SERVICE

I, ERVIN KAY, Relator, Pro Se, files this his "PETITION

FOR WRIT OF MANDAMUS", in good faith, and in the interest of

justice, seeking to have the Higher Court compel the lower

court to address the Constitutional Merits of his claims,

hereby CERTIFY a true and correct legible copy of the

foregoing "PETITION FOR WRIT OF MANDAMUS" was served upon

the below named and listed parties by placing the same in

the United States Mail, in a wJpper, with pre-paid postage

affixed thereto, on this the '3 G day of ~u~:b 2o15.

1. TEXAS COURT OF CRIMINAL APPEALS Attn: Hon. ABEL ACOSTA, Clerk P.O. Box 12308, Capitol Station Austin, Tx. 78711

2. HARRIS COUNTY COURTHOUSE 262nd judicial District Court Hon. DENISE BRADLEY, Judge 1201 Franklin St., 15th Fl. Houston, Tx. 77002

Relator, Pro Se TDCJ #1331828 Darrington Unit Rosharon, Tx. 77583