Mendoza, Jorge Jr. AKA Mendoza, George

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-76,979-02

EX PARTE JORGE MENDOZA, JR., AKA GEORGE MENDOZA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 64,862 IN THE 426TH DISTRICT COURT FROM BELL COUNTY

Per curiam. KELLER , P.J., concurs.

ORDER

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of

indecency with a child by contact and sentenced to life imprisonment on each count. The Third

Court of Appeals affirmed his convictions. Mendoza v. State, 03-10-00344-CR (Tex. App.—Austin

May 24, 2013) (not designated for publication).

On May 13, 2015, we remanded this application to determine whether Larry Warner was

authorized to file it as Applicant’s counsel of record. On the prescribed form for Article 11.07 2

applications, Warner circled “petitioner” and wrote that he was the “Attorney for Applicant.” But

in a pro se motion to abate, Applicant claimed that Warner filed this application after his services

had been terminated.

On May 21, in response to this Court’s remand order, the trial court signed an order

designating issues (ODI) and directed Applicant and Warner to file affidavits by July 27. Shortly

after the trial court entered its ODI, Sean K. Proctor, an Assistant District Attorney in Bell County,

sent Applicant and Warner a copy of the ODI. Applicant complied with the ODI and filed a sworn

affidavit well before the July 27 deadline. On July 13, instead of filing an affidavit, Warner filed a

“Motion to Propound Questions to Witness with Knowledge of Relevant Facts,” the witness being

Proctor. The questions in his “Motion,” were not, on the whole, material to the underlying inquiry.1

On July 20, Warner filed a document entitled, “Answers to District Court’s Inquiries.” As the trial

court would point out in its findings of fact, this was not an affidavit. The trial court scheduled an

evidentiary hearing for August 6.

On the scheduled day, the trial court held the hearing. Warner was not present, despite being

sent written notice by mail on July 20, and being called on the day of the hearing. Applicant

appeared telephonically. After the hearing, the trial court determined that Warner was not authorized

to file this application and recommended that we dismiss it.

After the trial court made its findings, Warner filed motions asking the trial court to reopen

the evidence and hold a hearing. He also filed a motion for new trial and asked this Court in an

“Advisory” to take judicial notice of his motion under Rule of Evidence 201. He argued that he had

mistakenly failed to verify his July 20 “Answers.” They were now verified, he said, and should be

1 Nothing in the record indicates that the trial court ruled on this motion. 3

considered. He also explained that his absence from the hearing was not intentional and that he had

a defense to Applicant’s claim that he had filed an unauthorized application.

We agree with the trial court’s findings and recommendation and will dismiss this

application. We also write to admonish Warner. Not only did he file an unauthorized application,

but by his responses and motions he also wasted this Court’s judicial resources and frustrated the

fact-finding process. We will not tolerate such conduct. Applicant is limited to “one bite at the

apple.” Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997). Unless he satisfies the

subsequent-application provisions in § 4, in other words, he has one opportunity to challenge his

conviction and sentence in an Article 11.07 application. By filing an unauthorized application,

Warner jeopardized this opportunity. He also was not mindful of this Court’s scarce judicial

resources. In fiscal year 2014, we disposed of 4,733 Article 11.07 applications and 819 original and

extraordinary matters. ANNUAL STATISTICAL REPORT FOR THE TEXAS JUDICIARY : FISCAL YEAR

2014 (Office of Court Administration). As we have said elsewhere, all of these “are carefully

scrutinized by an already over-burdened Court.” Ex parte Gaither, 387 S.W.3d 643, 648 (Tex. Crim.

App. 2012) (quoting Middaugh v. State, 683 S.W.2d 713, 714 (Tex. Crim. App. 1985)). In the

future, we remind Warner to be more cognizant of his ethical obligations as an attorney.

This application is dismissed. A copy of this order shall be sent to the Office of the Chief

Disciplinary Counsel of the State Bar of Texas.

Filed: November 4, 2015 Do not publish