Date : '£'~'1W '2.'1 1 'Z.o\S"
\
Court of Criminal Appeals of Texas P.O. Box 12308, Capitol Station Austin, Texas 78711
RE: Filing of Petition for Writ of Mandamus & Prohibition
Dear Clerk,
Enclosed, please find the Original and eleven (ll) copies of the "Relator's Petition for vJrit of Mandamus & Prohibition."
Please file this document and bring it to the Court's immediate attention for any proceedings to be had thereon.
By copy of this letter, I am forwarding a copy of this instrument to the Fourth Court of Appeals arid Susan D. Reed, the Bexar County Criminal District Attorney.
Thank you in advance for your time and kind assistance in this very important matter.
Sincerely, ~
c:!X~~ JRECE~VED ~N
TDCJ-CID No. 785448 W-P- Clements Unit 9601 Spur 591 OOURT OF CRIMINAL APPEALS Amarillo, Texas 79107-9606 MAR 04 2015
c/file
No.
IN THE
TEXAS COURT OF CRIMINAL OF TEXAS AT AUSTIN
HIRAM MILES,
Relator,
v.
COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS,
Respondent.
RELATOR'S PETITION FOR WRIT OF MANDAMUS & PROHIBITION
Hiram Miles
TDCJ-CID No. 785448
William P. Clements Unit
9601 Spur 591
Amarillo, Texas 79107-9606
RELATOR, PRO SE
No.
HIRAM MILES,
Relator,
v.
COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS,
Respondent.
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of the parties, the attorneys, and any other person who has an interest in the out- come of this suit:
Susan D. Reed Bexar County Criminal District Attorney Cadena-Reeves Justice Center 300 Dolorosa, Fifth Floor San Antonio,. Texas 78205-3030
Fourth Court of Appeals District Cadena~Reeves Justice Center 300 Dolorosa, Suite 3200 San Antonio, Texas 78205-3037
i.
TABLE OF .CONTENTS
Identity of Parties & Counsel i ·Table of Contents ii Index of Authorities iii Statement of the Case iv Statement of Jurisdiction ••••••.•••••.•••••.•., •.••••..••.. v Issue Presented vi Statemen~_ of Facts 1 Summary of the Argument •••.•...•.•....•••...••.••..•••.•.. 3 Argument .•••••...••.•..•..•.••••••••....••..••.•.•••..•.•. 4
Issue One:
The Fourth Court of Appeals Judgment/Opinion Is Outside Of The Anders/Stafford Procedure Established By The u.s.
Supreme Court and Court Of Criminal Appeals Of Texas, Rendering It Void
Prayer .••••••..•.•••••••.••.•••••..•.•••.•••••••..••.•••.• 8 Unsworn Declaration ..••..••.•••.••••.••...•••..•••.•..•..• 9 Certificate of Service . . . . . • • • . • • . . . . . • • . . • • . • . . . • . . • • . • . . 9 Appendix •~• .. e.;.fi>.-•i>••~·••oo ..... ..,.,.,. ..... ., .... .,., ... ., . . . . . . . . . . ., ... ~••o;. .. ~••., 10
ii.
INDEX OF AUTHORITIES
Federal·Cases:
Anders v. California,386 U.S.738,87 S.Ct.l396,18 L.Ed. 493 (1967) • . . . • . . . • • . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . • . . 5,6,8
Fay v. Noia,372 u.s.391,83 s.ct.822,9 L.Ed.2d 837 (1963) .•. 7 States Cases:
Chester,In Re, 309 S.W.3d @ 718(Tex.App.-Houston[l4th Dist~] 2010) ...•....•.. - .•.•. - ....•..• - ... - .. •· • . . . . . . • . . . . . - . . . . . . 8 Choice ! Energy,L.P.,325 S.W.3d 810(Tex.App.-Houston[l4th Dist.] 2010)....... .. . . . . . . . . . • • . . . . . . • . . . . . . . . . . . . . . . . . • . . . . 8 Rodriguez v. Marquez,-4 S.W.3d 227(Tex.Crim.App.l999) . . . . . . 4 Stafford v. State, 813 S.W.2d 5ll(Tex.Crim.App.l991) . . . . . . . 5,6,8 Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App.l981)..... .. • . . . . . . . . . . . . . • . . ... . . . . . • • . . • . 4 Wade v. Mays, 689 S.W.2d 893,899 (Tex.Crim.App.l985) ..•.• :. 4
Statutes: Article 11.07, Section 4, Texas Code of Criminal Procedure .. 7
iii
STATEMENT OF THE CASE
Relator was indicted on January 4,1996, for the offense of murder alleged to have been committed on or about October 10,1995. (C.R- Vol.r,p.7)
Jury trial commenced on March 31,1997 (c.R. Vol.I,p-8), after a plea of not guilty, a verdict of guilty was returned on April 3,1997 and the jury assessed punishment on that same day at life imprisonment and a $10,000 fine. (C.R. Vol.II, p.l76)
A motion for a new trial was filed and overruled on April 21,1997. (C.R. Vol.II,p.l84)
Relator timely filed a notice of appeal on April 17,1997.
(C.R. Vol.II,p.l93)
After Anders proceeding the Fourth Court of Appeals in Appeal No. 04-97-00313-CR was initiated,the Court Affirmed the trial court's judgment on March 3,1999.
iv
STATEMENT OF JURISDICTION
This Cdurt has jurisdiction to issue a writ of mandamus and prohibition. Article 4.04, Texas Code of Criminal Procedure and Article 5, Section 5, Texas Constitution.
v -
ISSUE PRESENTED
Issue One: The Fourth Court Of Appeals Judgment/Opinion Is Outside Of The Anders/Stafford Procedure Established By The u.s. Supreme Court And Court Of Criminal Appeals Of Texas, Rendering It Void.
vi.
STATEMENT OF FACTS
On May 18,1998, court-appointed appellate counsel, Raymond Fuchs, filed a "Anders Brief In Support Of Motion To Withdraw As Counsel" with the Fourth Court of Appeals in Appeal No. 04- 97-00313-CR.
Mr. Fuchs provided Relat:_o_E: ___ ~i:_t_h__ ~__c~p_}:' ___ 9X._the Anders Brief and advised him of his right to review the record and file a Pro Se Brief.
Mr. Fuchs, also, sent the 290th District Court's address to contact for the trial record to be sent to him; notifying him also of the time limitations to file the brief suggesting that Relator request for an extension of time, giving him the Fourth Court of Appeals address. see Appendix Tab-A, Attachment- 1: Order of the Fourth Court of Appeals, dated July 20,1998: [Affidavit of Hiram Miles]
On May 26,1998, Relator, as instructed wrote the trial court judge Sharon s. MacRae requesting for the record.
On Julyl,l998, in response to the letter, Judge MacRae stated "I have no proprietary interest in the records that you request, contact the Court of appeals."
On July 5,1998, Relator wrote the Fourth Court of Appeals asking for his records by motion, to file his brief.
On July 20,1998, the Fourth Court of Appeals ackowledged in a Order that Relator asserted his right to file a pro se brief.
This Order directed the Bexar County District Clerk to prepare and send a full and complete duplicate copy of the
2
Clerk's and Reporter's Records for Ca~se Number 1996-CR-0010 to Relator. See (Appemdix, Tab-A,[Affidavit of Hiram Miles] Attachment-1)
In.this Order, it stated that "the ProSe Brief is due on or before the 18th day of September 1998." Id.
On September 18, 1998, Fourth Court of Appeals Clerk, Mr. Herb Schaefer, acknowledged receipt and filing of the "Pro Se Appellant Brief" for the Fourth Court of Appeals- See (Appe~dix, Tab-A,[Affidavit of Hiram Miles] Attachment-2)
Relator provided Mr. Fuch with a copy and also forwarded a copy to Enrico B. Valdez, the attorney representing the State. See (Appendix, Tab-A)
The State's attorney filed three (3) motions for extensions of time and filed its reply brief on January 19,1999.
On February 4,1999, Relator was notified by Clerk Schaef~r
that the Court set a formal submission on "Briefs'' on the 2nd day of March, A.D. 1999.
On March 3,1999, Justice Karen Angelini delivered the Opinion for the Court affirming Relator's conviction by review of the brief filed by Mr. Fuchs and the record, agreeing that the appeal was frivolous and without merit granting counsel's motion to withdraw. See (Appendix, Tab-A,[Affidavit of Hiram Miles], Attachment-3: Opinion, Fourth Court of Appeals)
Justice Angelini in her Opinion further noted that "Miles has not filed a brief." Id.
Relator's "Pro Se Appellant Brief" has not been reviewed nor. considered as mandated by the u.s. Supreme Court's holding on the Anders procedure.
3
SUMMARY OF THE ARGUMENT
Court-appointed appellate counsel filed an Anders' Brief In Support of Motion to Withdraw as Counsel, triggering the Anders'/Stafford three (3) step mandate by the u.s. Supreme Court and Texas Court of Criminal Appeals. Intermediate State Appellate Courts must follow this procedure to the conclusion of its appellate review.
In this case at bar, where the Fourth Court of Appeals abandined review of "Appellant's Pro Se Brief" required by Anders/Stafford judgments, it went beyond its jurisdiction to enter any judgment, thereby rendering the Order of affirmation of the conviction and sentence void.
Relator pursues Writ of Mandamus in order for this Honorable Court shall have the power to issue the writ and enforce its judgment as decided in Stafford v. State which was determined in accord with Anders v. California-
4
ARGUMENT
The Fourth Court Of Appeals Judgment/Opinion Is Outside Of The Anders/Stafford Procedure Established By The u.s. Supreme Court And Court Of Criminal Appeals Of Texas, .Rendering It Void.
Standard of Review
To obtain mandamus relief with respect to judicial conduct, a Relator must show:
1) a clear right to relief usually when the judicial conduct in question violates a ministerial duty, and
2) no adequate remedy at law to redress the alleged harm.
See State ex. rel. Rodlrigueziv,~ ~Marquez1·A S.W.3d 227 (Tex.Crim. App. 1999)
* * *
The Wade Court determined that "under the ministerial act/clear legal right requirement, the law must "Clearly spell [] out the duty to be performed ••• with cuch certainty that nothing is left to the exercise of discretion or judgment." See Wade v. Mays, 689 S.W.2d at 899 (Tex.Crim.App.l985)(Quoting Texas Department of Corrections v. Dalehite, 623 S.W.2d 420,424 (Tex.Crim.App.l981))
The governing law in this case is spelled out in steps by the u.s. Supreme Court and Texas Court of Criminal Appeals ln a way that cannot be interpreted in no other way.
Therefore, Relator will demonstrate that the judicial conduct of the Justices of the Fourth Court of Appeals violates a ministerial duty to review the "ProSe Appellant's Crief."
5
"I
This Honorable Court of Criminal Appeals of Texas in Stafford v. State, 813 S.W.2d 511 (Tex.Crim.App.l99l) adopted the u.s. Supreme Court's three (3) step procedure to determine if an indigent's appeal is wholly frivolous. See Anders v. C~li-
fornia, 386 u.s. 738, 87 s.ct. 1396, 18 L.Ed-493 (1967)
Counsel's Role -Appointed counsel must make a conscientious review of the record to decide if it presents any nonfrivolous grounds for appeal. If this review convinces appointed counsel the appeal is wholly frivolous, he must ask the court for permission to withdraw. But he must file "a brief referring to anything in the record that might arguably support the appeal" and provide the appellant with a copy of th is brief. Anders, 386 u.s. at 744 Appointed counsel thus has the responsibility to file an Anders brief that will help the court correctly dispose of the appellant's appeal.
Appellant's Role - If appointed counsel files a motion to withdraw and a brief complying with Anders/Stafford, the court must provide the appellant with time to file a prose brief "to raise any'pointes he chooses .... " Id.
This pro se brief is thus the appellant's opportunity to help the court decide if the record on appeal raises any nonfrivolous ground for an appeal.
The Court's Role -After the appellant has been given an opportunity to file a pro se brief, the court must conduct a "full examination of all of the proceedings,to determine whether the case is wholly frivolous." To make this determination, the court reviews the Anders brief filed by appointed counsel, the record on appeal,and any pro se brief filed by the appellant. If the court establishes the appeal is wholly frivolous, it affirms the judgment.
But, if the review reveals an arguable ground for appeal, the court must appoint another attorney to assist the
6
appellant in arguing the appeal. Id.
The above procedures are a ministerial duty mandated by the Court of Criminal Appeals and is not left to discretion by any lower court, See Anders v. California, 87 S.Ct-1396(1967); Stafford,supra.
Appointed counsel's filing of an Anders Brief and motion to withdraw triggered the Anders/Stafford procedure mandated by
the u.s. Supreme Court and Court of Criminal Appeals of Texas.
Relator did not agree with appointed counsel's finding
that the appeal was frivolous and asserted his right und~r:
Anders/Stafford.
Relator fulfilled his role as required pursuant to the Anders/Stafford procedure by filing his "Pro Se Appellant's Brief" on September 18,1998. See (Appendix, Tab-A, [Affidavit Of Hiram Miles] Attachment - 2: Notice of Receipt By Clerk,dated September 18,1999)
The Fourth Court of Appeals did not fulfill its role prior to rendering judgment by stating in its Opinion "Miles has not filed a brief." See (Appendix, Tab-A [Affidavit of Hiram Miles] Attachment - 3: Opinion/Judgment of the Fourth Court of Appeals,dated March 3,1999)
The Court ignored its ministerial duty to review the pro se brief by simply stating that "Miles has not filed a brief" when court records and notice of receipt from the court's clerk certifying otherwise.
Therefore, Relator is entitled to the review governed by the Anders/S~af~ord procedure.
7
The aforementioned steps must be followed ln reaching the decision to affirm or appoint new counsel to argue the appeal. The review of any pro se brief filed by the Relator is required in this determination. Therefore, without the review of this brief on file with the Fourth Court of Appeals, it does not have jurisdiction to enter judgment of affirmation, and is void. NO ADEQUATE REMDEY AT LAW Relator will demonstrate that he has no adequate remedy at law to redress the Fourth Court of Appeals failure to review the pro se brief as required by Anders/Stafford.
The only remedy from judgment/order by a court of appeals on direct appeal is the Application for a Writ of Habeas Corpus pursuant to Article 11.07, Texas Code of Criminal Procedure.
Your Relator does not meet the requirements in pursuing the state application due to his previous filings of State applications, whereby, Section 4, Article 11.07 does not redress the hram done to Relator by the Fourth Court of Appeals. See (Appendix, Tab-A, [Affidavit of Hiram Miles] Attachment - 4: Order of the Texas Court of Criminal Appeals,dated: March 12, 2014)
In addition, the Fourth Court of Appeals judgment is obtained in violation of the Anders/Stafford procedure [DUE Process] and void for want of jurisiction of the court to render such judgment. See Fay v. Noia, 372 u.s. 391, 83 s.ct. 822, 9 L.Ed.2d 837 (1963), and requires no need for Relator to
8
demonstrate the No Adequate Remedy at Law standard.
Albeit, lower court's have determined that the "No Adequate Remedy at Law" is not necessary when the order being challenged is void. See In Re Chester, 309 s.w.3d @ 718 (Tex.App.-Houston [14th Dist.] 2010); See also In Re Choice! Energy,L.P., 325 S.W.3d 810 (Tex.App.-Houston (14th Dist.] 2010)
In conclusion, Relator has attempted every avenue to obtain relief from the Fourth Court of Appeals arbitrary act to ignore the brief timely filed by Relator on September 18,1998. See (Appendix, Tab-A [Affidavit of Hiram Miles] Attachment - 2)
Relator contends that the Fourth Court of Appeals refusal to review the brief is due to the grounds raised in the brief being meritorious requiring abatement of the appeal, and remand to the trial court for appointment of new counsel to assist him in arguing those grounds.
PRAYER
WHEREFORE,PREMISES CONSIDERED, Relator prays that this Honorable Court issues this Writ of Mandamus and Prohibition directing the Fourth Court of Appeals to review the "Pro Se Appellant's Brief" as required by Anders v. California, 87 s.ct. 1396 (1967) and Stafford v. State, 813 s.w.2d 511 (Tex.Crim.App. 1991) Also, issue Prohibition to the Fourth Court of Appeals to prohibit any attempted decision without first revewing the "ProSe Appellant's Brief."
EXECUTED on this the ~ day of }e1o~~~ 2015.
E'LATOR I PROSE
9
UNSWORN DECLARATION
I, Hiram Miles TDCJ-CID No. 785448, being presently confined on the TDCJ-CID William P. Clements Unit in Potter County, Texas verify under penalty of perjury that the foregoing is true and correct pursuant to V.T.C.A- Civil Practice and Remedies Code 132.001 - 132.003.
EXECUTED on this the ~day of 'f~~R-"( 2015.
LATOR, PRO SE
CERTIFICATE OF SERVICE
r, Hiram Miles, Relator, pro se, do hereby certify that a copy of the "Petition for a Writ of Mandamus & Prohibition" has been served on the parties to this suit by placing same in the u.s. Mail System through the prison mailing system, on the 25:1h_ day of ~~W.""C.U.:y\ 2015, addressed to:
Susan D. Reed Bexar County Criminal District Attorney Cadena-Reeves Justice Center 300 Dolorosa, Fifth Floor Sari Antonio, Texas 78205-3030
(RELATOR I PRO" SE
10
WRIT NO. WR-46,247-12
HIRAM MILES,
Relator,
vs.
COURT OF APPEALS FOR FOURTH DISTRICT OF TEXAS, Respondent.
APPENDIX TO RELATOR'S PETITION FOR WRIT OF MANDAMUS AND PROHIBITION
List Of Documents
1. Affidavit Of Hiram Miles Dated December 14,2014 Tab A