November 30, rH:t~IVED IN THE HONORABLE LOUISE PEARSON, CLERK COURT OF CRIMINAL APPEALS COURT OF CRIMffiNAL APPEALS OF TEXAS GEC 03 2015 P. O. BOX 12308 AUSTIN, TEXAS 78711-2308 Aber Acosta. Cferk RE: Relator's Original Application for Writ of Mandamus CAUSE NO. CR-333-CT Dear Ms. Pearson, Clerk: Enclosed please find thee· Original of Relator's Application for a Writ of Mandamus. Please stamp file it and bring it to the atten- tion of the Court. Also please date stamp a copy and return it to the Relator in the self-addressed envelope that has been provided.
Thank you for your time and considerafion in this matter.
TDCJ-ID #1261021 RAMSEY ONE UNIT TDCJ-ID 1100 F. M. 655 ROSHARON, TEXAS 77583
File/ECP Enclosure: Exhibits "A" and "B" CAUSE NO. CR-333-CT
EZRA PLEASANT § IN THE 22ND ~UDICIAL TDCJ-ID #1261021 § Relator § V. § DISTRICT COURT OF § LISA PACHECO, SUPERVISION OFFICER § HAYS COUNTY CSCD § IN HER OFFICIAL CAPACITY, § RESPONDENT
A. PLAINFIFF'S ORIGINAL APPLICATION FOR WRIT OF MANDAMUS TO TH~ HONORABLE JUDGE OF SAID COURT: COMES NOW, Ezra Pleasant, Relator, Pro Se in the above-styled and 1umbered cause of action and files this original Application fdr writ of mandamus, p~rsuant to article 42.12 section 20(a) of the Texas Code of Criminal Procedure, and would show the Court the following: B. RELATOR I Ezra Pleasant, TDCJ #1261021 is an offender incarcerated in the Texas Department of Criminal Justice and is appearing pro se, who can be located at Ramsey One Unit, 1100 F. M. 655, Rosharon~, Brazoria County, Texas 77583. Relator has exhausted his remedies and has no other adequate reme- dy at_ law. The act sought to be compelled is ministerial, not dis- cretion:~ry in nature. "An act is ministerial, for purposes of a petition for writ of mandamus, when.the law clearly spells out the du:ty to be performed by the official with sufficient certainty that nothing is left to the exercise of discre- tion." In re Roof,l30 S.W.3d414, Lll6; see also Community Health Choice, Inc. v. Hawkins, 328 s.w. 3d 10 (2010). A writ of manda~us is appropriate to compel a public_official to per- focm a ministerial act. See In re Smith, 333 S.W. 3d (2011); also In re Jenes, 335 S.W. 3d 772 (2011). In sum, a person who succes~f0lly completes all of the terms and conditions of community supervision must be discharged from community supervision. This is not a discretionary matt~r; and a per~on whose conviction is set aside pursuant to an Article 42.12, § 20 order is not a convicted felon. See Cuellar v. State 70 S.W.3d 815, 820.
Page 1 \
TCCP ART. 42.12 Section 20(a) requires respondent to lmmediately, before reducing or terminatirig a period of community supervision or conducting a . review under this se~tion, the judge shall notify the attorney represertting the state and the defendant or, if the de- fendant has an attorney, the defendant's attorney. If the judge de- terminei that the defendant has failed to satisf~ctorily fulfill the c~ndition~ of community sup€rvision, the judgS shall advise the! de- , • > • •
fendant in writing of the requirements for satisfactorily fulfilling .. ... those conditions. Had this advice been duly ~ent by respondent as required by statute, relator would have.received notice from the court, and fully satisfied the judge's requirements, including, those in Section 20 A (b)-(e). II C. RESPONDENT Respondent, Lisa Pacheco, in her capacity as "Supervision Officer" of Hays County Communi ty Supervision and Correction Department (HCCSCD), is appointed or employed under Section 76.004, Government Code, to supervise de~endants placed on community supervision; and perform all other duties imposed on the "supervision officer" pur- suant to TCCP ART. 42.12 Section 2.(3). The judge is responsible un- der TCCP ART 42.12 Section 20(a) to. immediately upon satisfactory fulfillment of-the conditions of community supervision, and the ex- piration cif the period of community supervision, the judge by order duly enteied, ··shall am~nd· or modify the original sentence imposed, if necessary, to conform to.the communit~ supervision period and shall discharge the def~ndant. If the judge discharges the defen- dant under this section, the judge may set aside th-e verdict or per- mit the defendant to withdraw his plea, and shall dismiss the accu- sation, cotnp.laint, informat-ion or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense ot crime of which-he has been convi6ted or to whi~h he has pleaded guilty~ Ms. Lisa Panc~eco, Supervision Officer, HCCSCD may ~e served at her place of business at 712 Stage- coach Trail Suite 1326,_ San Marcos, Texas 78666.
Page 2 III D~ VIOLATION OF ART. 42.12 OF .THE TEXAS CODE OF CRIMINAL PROCEDURE The resp8ndent violated ·article 42.12 section 20(a) of the Texas Code of Criminal Procedure by failing to notify the relator before redu~~ing or terminating his period of community supervision or coriducting a review under ~his section; and by failing to advise the defendant in. writing of all requirements necessary to satisfact- orily fulfill the.conditioni of community supervision. Request for court appointed counsel pursuant to TCCP Article I 1.05l(c) to assist with the unfavorable status of his community supervision were made by Relator to Judge Bbyer, Presiding Judge, 22ND District ~ourt, Hays County, by prepaid First ~lass Mail dated ~arch 10, 2015; July 29, 2015 pursuant to article 42.12 Sec- t ion 20 (a) of the code 'of Criminal Procedure. A true and accurate copy of the above letter is attached hereto as Exhibit "A" and is incorp8rated by reference herein for all purposes. To date Relator has received no · response from Respondent regarding relator's request for court appointBd counsel to assi~t
with the unfavorable discharge fro~ community supervision. Under TCCP Art. 42.12 Section 20(a), the statute which provide a mechanism to release convicted persons of all legal disabilities upon successful completion of community supervision, a trial judge must enter an order releasing the deferidant from the legal disa- bilities; absent such an order, the disabilities are not removed. In Wolf v. State, 917 S.W.2d 270 (1996) the Court reasoned that: ("Section. 20 provides a mechanism'to release a convicted person of all legal disabilities upon successful completion of. probation.");. Hoffman v. State, 922 S.W.2d 663, 668 (Tex.App.Waco 1996 pet.ref'd) ("Among the district court's several powers is the authority to dismiss an indictment or informa- tion against a convicted felon once he successfully completes the term of h:Ls probation.") Under Tex. law, successful completion of probation allows the judge to dismiss some charges without a final conviction; see B0 y k i n v . state I 818 s . w~ . 2 d 7 8 2 ( T.e X. c rim . Ap p . r 9 91 ) . When the ju- dicial clemency provision ~s exercised, the conviction is wiped away, the indictment dismis~ed, and the person is free, released from all penalties and disabilities res~lting from the conviction. See Cuellar v. State, 70 S.W.3d 815; Art 42.12 §20(a).
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November 30, rH:t~IVED IN THE HONORABLE LOUISE PEARSON, CLERK COURT OF CRIMINAL APPEALS COURT OF CRIMffiNAL APPEALS OF TEXAS GEC 03 2015 P. O. BOX 12308 AUSTIN, TEXAS 78711-2308 Aber Acosta. Cferk RE: Relator's Original Application for Writ of Mandamus CAUSE NO. CR-333-CT Dear Ms. Pearson, Clerk: Enclosed please find thee· Original of Relator's Application for a Writ of Mandamus. Please stamp file it and bring it to the atten- tion of the Court. Also please date stamp a copy and return it to the Relator in the self-addressed envelope that has been provided.
Thank you for your time and considerafion in this matter.
TDCJ-ID #1261021 RAMSEY ONE UNIT TDCJ-ID 1100 F. M. 655 ROSHARON, TEXAS 77583
File/ECP Enclosure: Exhibits "A" and "B" CAUSE NO. CR-333-CT
EZRA PLEASANT § IN THE 22ND ~UDICIAL TDCJ-ID #1261021 § Relator § V. § DISTRICT COURT OF § LISA PACHECO, SUPERVISION OFFICER § HAYS COUNTY CSCD § IN HER OFFICIAL CAPACITY, § RESPONDENT
A. PLAINFIFF'S ORIGINAL APPLICATION FOR WRIT OF MANDAMUS TO TH~ HONORABLE JUDGE OF SAID COURT: COMES NOW, Ezra Pleasant, Relator, Pro Se in the above-styled and 1umbered cause of action and files this original Application fdr writ of mandamus, p~rsuant to article 42.12 section 20(a) of the Texas Code of Criminal Procedure, and would show the Court the following: B. RELATOR I Ezra Pleasant, TDCJ #1261021 is an offender incarcerated in the Texas Department of Criminal Justice and is appearing pro se, who can be located at Ramsey One Unit, 1100 F. M. 655, Rosharon~, Brazoria County, Texas 77583. Relator has exhausted his remedies and has no other adequate reme- dy at_ law. The act sought to be compelled is ministerial, not dis- cretion:~ry in nature. "An act is ministerial, for purposes of a petition for writ of mandamus, when.the law clearly spells out the du:ty to be performed by the official with sufficient certainty that nothing is left to the exercise of discre- tion." In re Roof,l30 S.W.3d414, Lll6; see also Community Health Choice, Inc. v. Hawkins, 328 s.w. 3d 10 (2010). A writ of manda~us is appropriate to compel a public_official to per- focm a ministerial act. See In re Smith, 333 S.W. 3d (2011); also In re Jenes, 335 S.W. 3d 772 (2011). In sum, a person who succes~f0lly completes all of the terms and conditions of community supervision must be discharged from community supervision. This is not a discretionary matt~r; and a per~on whose conviction is set aside pursuant to an Article 42.12, § 20 order is not a convicted felon. See Cuellar v. State 70 S.W.3d 815, 820.
Page 1 \
TCCP ART. 42.12 Section 20(a) requires respondent to lmmediately, before reducing or terminatirig a period of community supervision or conducting a . review under this se~tion, the judge shall notify the attorney represertting the state and the defendant or, if the de- fendant has an attorney, the defendant's attorney. If the judge de- terminei that the defendant has failed to satisf~ctorily fulfill the c~ndition~ of community sup€rvision, the judgS shall advise the! de- , • > • •
fendant in writing of the requirements for satisfactorily fulfilling .. ... those conditions. Had this advice been duly ~ent by respondent as required by statute, relator would have.received notice from the court, and fully satisfied the judge's requirements, including, those in Section 20 A (b)-(e). II C. RESPONDENT Respondent, Lisa Pacheco, in her capacity as "Supervision Officer" of Hays County Communi ty Supervision and Correction Department (HCCSCD), is appointed or employed under Section 76.004, Government Code, to supervise de~endants placed on community supervision; and perform all other duties imposed on the "supervision officer" pur- suant to TCCP ART. 42.12 Section 2.(3). The judge is responsible un- der TCCP ART 42.12 Section 20(a) to. immediately upon satisfactory fulfillment of-the conditions of community supervision, and the ex- piration cif the period of community supervision, the judge by order duly enteied, ··shall am~nd· or modify the original sentence imposed, if necessary, to conform to.the communit~ supervision period and shall discharge the def~ndant. If the judge discharges the defen- dant under this section, the judge may set aside th-e verdict or per- mit the defendant to withdraw his plea, and shall dismiss the accu- sation, cotnp.laint, informat-ion or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense ot crime of which-he has been convi6ted or to whi~h he has pleaded guilty~ Ms. Lisa Panc~eco, Supervision Officer, HCCSCD may ~e served at her place of business at 712 Stage- coach Trail Suite 1326,_ San Marcos, Texas 78666.
Page 2 III D~ VIOLATION OF ART. 42.12 OF .THE TEXAS CODE OF CRIMINAL PROCEDURE The resp8ndent violated ·article 42.12 section 20(a) of the Texas Code of Criminal Procedure by failing to notify the relator before redu~~ing or terminating his period of community supervision or coriducting a review under ~his section; and by failing to advise the defendant in. writing of all requirements necessary to satisfact- orily fulfill the.conditioni of community supervision. Request for court appointed counsel pursuant to TCCP Article I 1.05l(c) to assist with the unfavorable status of his community supervision were made by Relator to Judge Bbyer, Presiding Judge, 22ND District ~ourt, Hays County, by prepaid First ~lass Mail dated ~arch 10, 2015; July 29, 2015 pursuant to article 42.12 Sec- t ion 20 (a) of the code 'of Criminal Procedure. A true and accurate copy of the above letter is attached hereto as Exhibit "A" and is incorp8rated by reference herein for all purposes. To date Relator has received no · response from Respondent regarding relator's request for court appointBd counsel to assi~t
with the unfavorable discharge fro~ community supervision. Under TCCP Art. 42.12 Section 20(a), the statute which provide a mechanism to release convicted persons of all legal disabilities upon successful completion of community supervision, a trial judge must enter an order releasing the deferidant from the legal disa- bilities; absent such an order, the disabilities are not removed. In Wolf v. State, 917 S.W.2d 270 (1996) the Court reasoned that: ("Section. 20 provides a mechanism'to release a convicted person of all legal disabilities upon successful completion of. probation.");. Hoffman v. State, 922 S.W.2d 663, 668 (Tex.App.Waco 1996 pet.ref'd) ("Among the district court's several powers is the authority to dismiss an indictment or informa- tion against a convicted felon once he successfully completes the term of h:Ls probation.") Under Tex. law, successful completion of probation allows the judge to dismiss some charges without a final conviction; see B0 y k i n v . state I 818 s . w~ . 2 d 7 8 2 ( T.e X. c rim . Ap p . r 9 91 ) . When the ju- dicial clemency provision ~s exercised, the conviction is wiped away, the indictment dismis~ed, and the person is free, released from all penalties and disabilities res~lting from the conviction. See Cuellar v. State, 70 S.W.3d 815; Art 42.12 §20(a).
Page 3 As is cle~r from Relator's letter, Relator has repeatedly put respondent o.n not ice· that Relator seeks the appointment of counsel to assist with the unfavorable discharge of his community super- vision and its effect thereof (which viblatea Section 20(a) of the TCCCP)~ Since the fLling date of his writ of ·habeas corpus on the 6th day of March , 2008 relator has gone well beyond any require- ment or _oblig~tion imposed upon him by ~he Texas Code ofCriminal Procedure t6 prove to the court that: Relator is actually innocent; .that the indictment was fundamentally defective; and. the con~iction void, because the indictment fa{led to allege an essential element of-the offense; and that the sentence is illegal because it violates TCCP Art. 42.12 Sec. 4(d)(5). See Matter of Wilson, 932 S.W.2d 263,265. In' contrast to Relator Is efforts I Respondent has wholly failed to comply with the Texas Code of Criminal Procedure, Article 42.12 Secti~ns 2(3 ); 20(a), is acting in bad faith, and has also failed to affoid Relator profe~sional and common courtesy of any written responses to his correspondence and request. A mandamus is an extraordinary reme~~' av~ilable only where . . government officials clearly have failed to perform nondiscretio- nary duties. See Pittston Coal Group v. Sebben, 488 u.s. 105, 121, 109 s.ct. 414, 424, 102 L.ED.2d 408 (1988); also Carter·v.' Seamans, 4ll F. 2d 767, 773 . (5th Cir. 1969). The legal duty must be set out in the constitution or by statute, see- Giddings v. Chandler, 979· F.2d 1004, 1108 (5th Cir.l992) and its performance must be positively commanded and so plainly prescribed as to be free from doubt. Id., at ll08. Article 42.12 S~ction 20(a) clearly states that ''Before redu- cing or terminating a period of cbmmunity supervision .or conducting a review uneer this section, the judge shall"notify the attorney representing the· state and the defendant ... T~ the defendant has failed to satisfactorily fulfill the conditions of community supervision, the jtidg~ shall advise the·d~fendant in writing of the requirements for satisfactorily fulfilling -those conditions. Failure of the Court to act within the time prescribed by law and within a reasonable time from the date on which the request was made shall constitute such findings.'' Texas Code of Criminal Pro- cedure Article 42.12 Section 20(a). Respondent is in violation of this procedure, ministerial duties, and thus the laws of the State of Texas. Page 4 IV D. PRAYER.FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Relator, respectfully prays for a finding that the Respondent failed to advise him in writing of all requirements necessary to receive a favorable discharge of his community supervision; and by failing to notify him before unfavor- ably terminating his community ~upervision; and that relator brought this mandamus in good faith; and has substantially prevail~d. Re- lator prays for an Order directing Respondent to remand this case to the trial court with instructions to Grant an evidentiary hearing, or in the alternative Grant an acquittal b the new evidence. The hearing should includ~ ~~n appointment
., I, Ezra Pleasant, TDCJ #1261021, being presently incarcerated in the Ramsey One Unit 1100 F.M. 655, Rosharon, Brazoria, County, Texas 77583, declare under penalty of perjury·that according to my belief the foregoing information and this applica- tion are true and correct.
CERTIFICATE OF SERVICE I hereby certify that a true copy of the above application for Writ of Mandamus was served on Respondent by placing a copy in the u.s. Mail addressed to: Ms. Lisa Pacheco, Hays County CSCD, on this the 30th day of November, 2
Page 5 c •
CERI1F'IED a:PY
July 29, 2015
To The Honorable Judge Bruce Boyer or Presiding 22ND District Court Judge ~iyW County C~mmunity Super~ision & Corrections Dept. 712 S. Stagecoach Trail suite 1326 San Marcos, Tex~s 78666
RE: STA~E.OF TEXAS VS. EZRA PLEASANT, Petitioner CAUSE~NO. CR-02-333-CT 1, 2, 3 STYLE: Status Inquiry: Dear Judge Boyer: This is an inquiry regarding the status of Petitioner's mot~on for appointment of counsel, filed March 10, 2015, immediately after re- ceiving your notice of an unfavorable discl':arge,onl March 1 ~2, 2015, dated February 20, 2015. The Motion and the repwy was made within 30 days of receipt of the ORDER, pursuant to FRAP Rules 3, 4. Since that time Petitioner has not received any information regarding the status of his motion not does ne know the meaning cf an unfavorable discharge and the effect it will have on his case. Moreover, if this case has been dismissed or discharged please have the clerk to notify.the Huntsville Detainer Section, P. o. Box 99, Huntsville, Texas 77342, in order to have the • dat~iner removed from Petitioner's record. Please send a courtesy copy of this no- tification to Petitioner at Ramsey One Unit, 1100 FM''.6557~·;:Rosharon;,~
Texas 77583. Ob~not±t¥~Petition~~t•~ito~wh¥~the d~taiher~c~n:rtot
be removed. Thank you for your time and attention in
Rosharon, Texas 77583