Nash, Dwayne Edward

• Court: Court of Appeals of Texas
• Decided: July 24, 2015
• Docket: WR-83,578-01
• Status: Published

Opinion

WR-83,578-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/23/2015 5:23:28 PM No. WR-83,578-01 Accepted 7/24/2015 8:14:30 AM ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN RECEIVED COURT OF CRIMINAL APPEALS 7/24/2015 Ex parte Dwayne Edward Nash ABEL ACOSTA, CLERK Applicant

On Application for Post-Conviction Writ of Habeas Corpus from the 33rd District Court of Burnet County in Case No. 39596

Applicant’s Objection to the State’s Answer to the Application for Post-Conviction Writ of Habeas Corpus, and Motion for Remand for Evidentiary Hearing

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOW, Dwayne Edward Nash, Applicant in the above

entitled cause, by and through John G. Jasuta and David A.

Schulman, his undersigned attorneys of record, and files this

response to the State’s answer submitted in response to his

Application for post-conviction writ of habeas corpus and would

show the Court:

I

On June 2, 2015, Applicant filed an application for post-

conviction writ of habeas corpus as well as a memorandum of law

in support of the habeas application, in the trial court. The District Clerk mailed a copy to the State on June 4, 2015. The

State filed its answer on July 1, 2015.

The application, supporting documents, and the State’s

answer, was forwarded to this Court and filed on July 13, 2015.

The trial court made no findings or conclusions of law.

II

The State’s response was not filed in a timely manner. Article

11.07, § 3(b), C.Cr.P., plainly requires the State to file its answer

within fifteen (15) days, which, in this case, would have been not

later than June 19, 2015. Thus, the State’s answer is plainly not

properly before this Court, as the statute specifically speaks to a

failure on the part of the State to answer in the statutory manner,

requiring a statutory general denial. Applicant specifically objects

to the inclusion of the unauthorized “answer” in the record, and

to any consideration of that document due to its untimely nature.

III

While the State in its putative answer, at least in part,

requested entry of an Order Designating Issues, the trial court did

2 not enter such an order either within or without the time in which

it had to act. Such time, as set out in Article 11.07, § 3(c), C.Cr.P.,

would have expired not later than July 10, 2015.

IV

The general denial of the State, statutorily entered as it was

due to the passage of time, has created factual issues which have

not been, but which should be, resolved by the trial court. The

trial court’s failure to act within the statutory time limit is deemed

a “finding” under Art. 11.07, § 3(c), C.Cr.P. That “finding” is

neverthless unsupported by the record before this Court, as

Applicant has stated facts which, if true, would entitle him to

relief.

The trial court is, in effect, the “eyes and ears” of this Court

in habeas matters, at least in the initial, fact-gathering phase.

Without findings specifically addressing alleged facts which, if

true, would entitle an applicant to relief, this Court is operating

blind. The trial court’s inaction in the face of the pleadings in this

case has left the Court in that precise situation.

3 V

Even the State’s putative answer raises fact questions

through its denials, which require specific findings. It specifically

denies the allegations of fact, offering explanations for its positions

throughout. Given the putative answer, should it be considered,

it is obvious that there exist controverted fact issues which are

deserving of formal resolution.

VI

This Court is empowered by Article 11.07, § 5, C.Cr.P., to

“deny relief upon the findings and conclusions of the hearing judge

without docketing the cause . . ..” While the statute deems a

failure to act as a “finding,” Applicant would submit that any such

“finding” would not be “finding and conclusions of the hearing

judge,” because, by its inaction, the trial court in this case has

refused to “hear” the case.

Conclusion

The record properly before the Court demonstrates that there

remain “controverted, previously unresolved facts material to the

4 legality of the Applicant's confinement” in this case. Should the

State’s answer be considered, despite its statutory inadequacy, the

need for resolution becomes more clear. An evidentiary hearing

should be ordered, with Applicant being accorded the opportunity

to put on evidence supporting his claims.

Prayer WHEREFORE, PREMISES CONSIDERED, Applicant prays

that this Court will remand this case for factual investigations and

recommendations by the trial/habeas court, and upon subsequent

consideration by the Court, will grant such relief to which

Applicant is entitled.

Respectfully submitted,

______________________________ ______________________________ John G. Jasuta David A. Schulman Attorney at Law Attorney at Law State Bar No. 10592300 State Bar Card No. 17833400 lawyer1@johnjasuta.com zdrdavida@davidschulman.com

1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282

Attorneys for Dwayne Edward Nash

5 Certificate of Compliance and Delivery

This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 775 words, excluding those

items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on

July 23, 2015, a true and correct copy of the above and foregoing

“Applicant’s Objection to the State’s Answer to the Application for

Post-Conviction Writ of Habeas Corpus, and Motion for Remand

for Evidentiary Hearing” was transmitted via electronic mail (eMail)

to Matthew Ottoway (matthew.ottoway@texasattorneygeneral.gov),

counsel for the State, using the eService function on the State’s

portal.

______________________________________ John G. Jasuta