Mitchell, Birshal Dion
Opinion
. . . .
TRIAL COURT NUMBER: 586939
RECEIVED IN
IN THE COURT OF CRIMINAL APPEALS TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS APR 16 2015
BIRSHAL MITCELL
RELATOR
vs.
337TH JUDICIAL DISTRICT COURT HARRIS COUNTY, TEXAS
RESPEINDE[l.JT This document contains some pages that are of poor quality at the time of imaging.
PETITION FOR EXTRAORDINARY RELIEF RE:
IDENTITIY OF PARTIES
BIRSHAL MITCHELL
TDCJ-CID #630503
WILLAIM G. McCONNELL UNIT BEE COUNTY, BEEVILLE, TEXAS
337TH JUDICIAL DISTRICT COURT HARRIS COUNTY, HOUSTON, TEXAS
REAL PARTY IN INTEREST
"EB" CLERK IN THE 337TH DISTRICT COURT P. 0. BOX 4651
HOUSTON, TEXAS 77210-4651
IN THE
TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
IN RE § §
§ NO:
BIRSHAL MITCHELL § Relator, §
MOTION FOR LEAVE TO FILE
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, BIRSHAL MITCHELL, Relator in the Above-Styled and Numbered Cause, and Respectfully presents this, his "Motion For Leave To File"(his enclosed copy of his~''Petition For Extraordinary Relief") pursuant to Tex.R.App.Prod.Roie 72, and ''Requests" that this Honorable Court grant him permission to proceed with the "Petition For Extraordinary Relief~
Submitted on this, /3 day of April, 201 5.
Respectfully Submitted,
:b.~~~-
Birsha~M~ator Pro Se
TDCJ-CID #630503
William G. McConnell Unit 3001 South Emily Drive
Beeville, Texas 78102
INDENTIFICATION OF PARTIES
RESPONDENT 337TH JUDICAL DISTRICT COURT HARRIS COUNTY, HOUSTON, TEXAS PRESIDING JUDGE .
.RESPONDENT "EB" CLERK IN THE 337TH DISTRICT COURT
.RELAToR BIRSHAL MITCHELL, TDCJ-CID #63050'3 CURRENTLY INCARCERATED IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONS INSTITUTIONS DIVISION WILLIAM G. McCONNELL UNIT, BEEVILLE, TEXAS
1IABLE OF CONTENTS
Identification of Parties----------------------------------------~--~----ii _________________________________________________________ ii Table of Contents Table of Authorities----------------~------------------------------------ii State of the Case--------------------------------------------------------- 1 Mandamus Relief Appropriate------------------------------------------------ 2 Mandamus Jurisdiction--~------------------------------------------------- 3 Ministerial Act/Clear Right to Relief Requirement. __________________________ 3
Conclusion----------------------------------------------------------------- 3 Prayer--------------------------------------------------------------------·· 4 Verification 4 TABLE OF AUTHORITIES
In re Mata, 212 SW3d 597(Te~.App.-Austin 2006} 2 In re Hewlett Parkard, 212 SW3d 356(Tex.App.-Austin 2006) ___________________,3 Dickens v. Second Ct. App. 727 SW2d 542, 549 .3 State ex rel Hill v. Ct. of App. 5th District, 34 SW3d 924, 927. 3 Stotts v. Wisser, 894 SW2d 366, 367 3 Runtion v. Harmon, 827 SW2d 945, 947 .3 State ex rel Vance v. Routt, 571 SW2d 903, 907. 3
ii
IN THE
TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
IN RE § §
§ NO: ____________________ BIRSHAL MITCHELL § Relator, §
PETITION FOR EXTRAORDINARY RELIEF .RE:
(1) MANDAMUS RELIEF TO COMPEL THE TRIAL COURT TO PROPERLY HEAR AND RULE ON RELATOR'S MOTION/REQUEST FOR 11 NUNC PRO TUNC 11 and/or
(2) AN INQUIRY INTO 11 WHY 11 THE COURT CLERK OF ·HJE 337TH JUDICIAL DISTRICT COURT MADE THE FINAL DESPOSITION OF THE MATTER IN FRONT OF THE COURT.
TO THE HONORABLES JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, BIRSHAL MITCHELL, Relator P~o Se, in the Above-Styled and
Number.ed Cause, and Respectfully presents this, Relator's 11 PETITION FOR
EXTRAORDINARY RELIEF 11 seeking to institute an original proceeding in this Honorable Court for an issuance of a 11 Writ Of Mandamus 11 and in support of said Petition, Relator hopes to show the Court the following:
STATEMENT 0~ THE CASE Relator was ar~e~ted and convicted for the Offense of Aggravated Robbery in 1991, and the 337th Judicial District Court Judge gave relator Ten (10)
years 11 Deferred Adjudiciated Probation, 11 this probation lasted until Relator
failed to uphold his part of the probation by failing to report, and comply by the roles established by the Court.
Relator was revoked, and given a Twenty (20) year sentence, and was remanded to the Texas Department of Criminal Justice - Institutional Division, this sentence began upon the Court revoking Relator's probatioonin 1998, and TDC received Relator in 1999, having served 421 days,(1 yr., 1mo., 26:days) in the county jail. Relator was in the custody of TDC for 4 years, 3 months and 18 days before being paroled on October 20th 2003, having completed a total of 5 years, 5 months and 14 days of the Twenty (20) year sentence.
On or about.October 20th 2011, Relator was charged with another offense and ·Relator's parole was revoked. Relator had completed 8 years and 6 days on the street totals his Twenty (20) year sentence, combined with what he had completed flat, Relator had done 17 years, 9 months, and 25 days.
Relator has been denied his street time by TDC & the BPP due t6 their retroactive application of Government Cod~ §§508.149(a) & 508.283, both of these Sections were "Enacted" on September 1st, 1997, the fact that Relator violated his probation in 1998, came to TDC in 1999, the original offense date was January 1991, so the law in effect at the time of tQe offense is in fact the law that governs the sentence.
Relator filed with the trial Court on Ma~ch 3rd 2015 a Motion For Judgment Nunc Pro Tunc, hoping that the sentencing Court would order TDC & BPP to cor- rect the sentence to reflect the B. plus ,years that Relator did on the stree under direct supervision of the Parole Commission.
On April 2nd 2015~ the Motion sent to the Court was Denied, but it is
clear~y apparent that it wasn't the Court that denied it, but in fact the Clerk
I
in the 337th Court itself,(See Attached Exhibit "A"). It appears from the
I
I
Exhibit attached, that ''EB" Clerk in the 337 District Court signed off on the
document instead of the Judge of the Court.
MANDAMUS RELIEF APPROPRIATE
I
Mandamus relief is available only if a trial court clearly abuses it's discretion, and Relator can show that he has no adequate lremedy by appeal. In re MATA. 212 SW3d 597(Tex.Apo.-Austin 2006); InrreLEWiN 149 SW3d 727(Tex.
..
App. -Austin 2004) ; In re HEWLETT PARKARD 212 SW3d 356 (Tex. App >Austin 2006) .
In the instant case Relator shows by the attached exhibit that not o~ly
did the trial fail ~o sign off on, and enter an order of denial, the Court allowed the Court's Clerk to do it, thus making a Writ of Mandamus necessary to correct the defect of the Court's "non-action" in Relator's case.
MANDAMUS JURISDICTION
Mandamus is an Extraordinary Writ and it's issuance isn't a matter of Law or Right, but rests in the sound discretion of the Court. DICKENS v~ SECOND CT.
OF APPEALS, 727 SW2d 542, .549. To be entitled to Mandamus Relief, Relator ~ust
conclusively establish two requirements; 1) There must be no other adequate remedy; and 2) Under the relevant facts and law, the act sought to be compelled is purely ministerial. See STATE ex rel. HILLV. CT~ OF APPEALS FOR THE 5TH-
DISTRICT. 34 SW3d 924; 927; STOTTS V. WISSER, 894 SW2d 366, 367; RUNTION v~
HARMON, 827 SW2d 945, 947; STATE ex rel. VANCE if. ROUTT, 571 SW2d 903, 907.
Based upon legal requirements Relator will show.
MINISTERIAL ACT/CLEA~ RIGHT TO RELIEF REQUIREMENt Relator submits that based on the attached Exhibit, Relator hopes that he is entitled. to some relief by this Court. The relief sought herein is simply an order to the 337th Judicial District Court to review the Motion Relator has before it, and rule on it as Relator had sought in the first place, instead of the Court allowing it's in Court Clerk to sign off on, as the Exhibit clearly indicates.
CONCLUSION
Relator has tried to present to this Court the facts of his case, and
I
claim. All Relator is trying to seek is the proper procedure of the Court to
hear a Motion, Rule on the Motion, and Enter an Order on the Motion, signed by the Presiding Judge. Relator relies solely on this Court for relief sought, and a correction of the "Clerk's" & "Court's" abuse of discretion.
. '
PRAYER
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