Porter, Orvis Wayne

Texas Supreme Court

Porter, Orvis Wayne

DecidedMay 28, 2015

DocketWR-50,653-06

StatusPublished

This text of Porter, Orvis Wayne (Porter, Orvis Wayne) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Porter, Orvis Wayne, (Tex. 2015).

Pincite

Opinion

I . A:: \

. ~e..~ :s·. t·c\ .. £u__c._b._ro otJc\ 1 ~~ ~5t~ s .l ..l l\ tb - I ·~

\ I

~ \ -~ ' : ·. . ® ·• t-to b.-A%· Q · n~Qc\ .· ·1 ,j. 'M,j_ ..· c\o..:lf\1'1 · :, . _\D 't\\lV 0~\'\ ~~ JUJY·~~c.JL \ . wao\J - \~\

~ . ·,

. ~- . ~

. ' ' .. . . £-j-P-JbC,_!..S." '1:'--(~c.."C---'_ J------,------'--- 11\v ~·C~ Dt·· l},.J"'~"'J~01Y\~ 'b.L.:..,_'

... (3) .·. 1l\Q) -~- t+~\, .· ·~ 1o~'-Y ~c\ · G o( "' . ~\ ~· .i 11 '- ~\ . ' • "-/ ······

CASE NO. W1024557-JB

ORVIS PORTER, IN THE CRIMINAL COURT OF APPEALS PETITIONER AUSTIN, TEXAS vs THE THIRD DISTRICT CR~MINAL COURT DALLAS COUNTY, RESPOND-ANT

PETITION FOR WRIT OF MANDAMUS A Parties Petitioner, Orvis W. Porter, #1905515, Jester III Unit, 3 Jester Road, Richmond, Texas 7740~. Respondant, the Third District Criminal Court Dallas County, 133 N. Riverfront Blvd., LB 40, 6th Floor, Dalla~, Texas 75207-4313 (214) 653-5922, the Honorable Judge Gracie G. Lewis, Real Party of Interest, Wayne Huff; Amicus Curize Attorney. B Jurisdiction The Criminal Court of Appeals has jurisdiction pursuant to the U~ited States Co~stitutio~ Amendment 5th & 14th Due Process (Amend. 5 & 14, USCA), the Texas State Constitution Article 5 Section 5 (Tex St Canst Art 5 Sec 5), Texas Code of C~iminal Proc~dures

Appellate Court 401.A & 404.2 (Tex Code of Crim Proc 401.A & 404.2), and Texas Government Code Article 22.004 (Tex Gov Code 22.004). c Nature of Case Petitioner seeks Writ of Mandamus to the Trial Court and Amicus Curize Attorney to perform Ministrial Function. D Issue Presented Trial Court and Amicus Curize Attorney has failed to perform M~nistrial Function, the Effectuation F~ling of Facts, and Conclu- sion of Law for the court. And the Trial Court failed to hold hearing of same on d~signated. Controverted previously unresolved facts. Material to the legality of Petitioner's confiriement. E Statement of Facts

Page 1 of 4 Pages ,,_l_~r·i'' • ·-· Petitioner Porter (Rea~tor Porter) filed Haebeas Corpus Petition to the Third District Court,.D~llasC6ouhty, Texas, pursuant to Texas Code of Criminal Procedure 11.07 (Tx CCP 11.07) to the Trial Court, Case No. W1024557-JB, the Honorable Judge Gracie G. Lewis, Jtidg~~Presiding, raising violation elements of: 1) ~Illegal and/or no facts to support Pro6f of Notice to Enhance- ment Paragraph a) No finger prints to an alleged burgarly of Habit- ation,- July 31 , 1998 F92- 31291-MW in 36 3rd Judi cal District Court of Dallas County (The Court failed to prove final conviction. The Dallas County Sheriff's Office Finger Print Expert said, "There was no finger print or document to prove the conviction or fbr the enhancement at the';'sentence ·:phase of· trial," -July 12, 2011 . ) b) a second seperate paragraph alleging Credit Card Abuse changed to Conspircy to Commit Credit Card Abu~eo?08-25433 282nd Judical __ _ District Court of Dallas County, is a Class A Misdemeanor. c) a third and seperate paragraph of Theft less than $500, F08-40243 March 10, 2008 194th Judical District~Court Dallas County, is a Class A Misdemeanor. (THE ABOVE ENHANCEMENT PARAGRAPH WERE USED TO ILLEGALLY INCREASE PETITIONER'S SENTENCE.) 2) Iheffective Assistance of Counsil Claim - violation of Petitioner Porter's 5th & 14th Due Process and Article 1 Section 3, 17 & 19 of Texas State.Constitution Bill of Rights Due Course of Law caused by the Trial Attorney's failure.to properly investig- ate and object to presentation of Erronous Enhancement Paragraphs used to illegally increase Petitioner's sentence. 3) The Trial Court's abuse of discreation by its use of, and deter- mination as true Erronous Enhancement Paragraph. 4) Violation of Petitioner Porter's Substantive and Procedural Rights Due Process (USCA 5 & 14) and Due Course of Law (Tex St ·Canst Art 1 Sec 3, 17 & 19) caused Petitioner Porter's Trial Attorney's failure to file Petition for Competency Evaluation of Petitioner Porter pursuant to the Texas Code of Criminal Procedures 46B.003, 46B.004 & 46B.005. 5) The Trial:Court's Abuse of its discreation by violating Petition-. er Porter's Substantive and Procedural Rights Due Process (USCA 5 & 14) and Due Course of Law Rights ( Tex St Canst Art J: .Se¢ 3:, 17 )& 19) py the Trial Court's failure to conduct informal and formal evaluation and hearing of Petitioner Porter's Volitional Competency Page 2 of 4 Pages Ca~acity to Stand Trial and receive sentenc~ Pursuant to Tex CCP 42.19 Sec 9 & 468.005. 6) Amicus Curize Attorney was instructed by Trial Court to Effect- uate and File Finding of ~acts and Conclusion of Law to Resolve Designated Controverted Previously Unresolved Fact Material to Petitioner Porter's Legality of Confinement over a year and a half ago (SEE APPENDEX PAGE i - ORDER DESIGNATED ISSUES) 7) The Trial Court has not performed its Ministrial Function. 8) The T~ial Court and Amicus Curize Attorney Wayne Huff duty is Ministrial Function persuant to Tx CCP Art 11.07.3d. IN REBATES 65 SW3rd 133 (Tex C APP Amarillo 2006) id at 134, 135. 9) The Criminal Court of Appeals has authority to issue Writ of Mandamus to Compel Lower Court's Ministrial Function STATE EX RE HILL vs THE FIFTH DISTRICT COURT 0? APPEAL 34 SE3rd 924 (Tex Crim App 2001) Tex CCP 401.A, 404.2 and Tex Gov Code 22~004.

10) The Trial Court and Ami6us Curize Attorney Huff has caused an u~r~~~Qn~ble urt~~bu~~d ~~lky. 11) Petitioner has a right to accept or attack a Court Ruling KISSAM vs WILLIAMSON 545 SE2nd 265. 12) Petitioner Porter has no other remedy to comp~liWayne Huff and the Trial Court to perform its Ministrial Function. 13) Petitioner Porter is illegally incarcerated, restrained of his liberty and Erronosly forced to serve an Excessive Sentence. Prayer for Relief Wherefore all Premisse consider Petitioner Porter Prays upon the Court to adopt this his Petition for Writ of Mandamus and issue order of instructions to the Third District Court to hold hearing on Fact Finding and Conclusion of Law, and to order Amicus Curize Attorney Wayne Huff to Effectuate and File same to Trial Court and Provide Copy to Petitioner within 30 days of the Court Order. Respectfully Submitted, _

~ ~~ ~bnw•\c.~.ssu Orvis W. Porter, Petitioner #1905515 Jester III Unit 3 Jester Road Richmond, TX 77406

Page 3 of 4 Pages it,. . "..... Declaration of Perjury My name is Orvis W. Po~ter, my TDCJ-CID Identification Number is #1905515. I am an offender currently incarcerated in the Jester III Unit, 3 Jester Road, Richmond, TX 77406. Deposes and declare under Penalty of Perjury that the content contained in this above and aforegoing Petitioner Petition of Writ of Mandamus is true and correct pursuant to Texas Civil Practice and Remedies Code 134.001.

Executed to by me the undersigned this J.S 'j, day of YY)Ot 2015.

Orvis W. Porter, Petitioner

Certification I, Orvis Wayne Porter, certify that a true and correct copy of the above and aforegoing Petitioner Petition for Writ of Mandamus was served by U.S. Post Office Mail Service Postage Prepaid by depositing copy of same addressed to: The Honorable Judge Gracie G. Lewis, ju9ge presiding 3rd District Court, Dallas, Texas, Frank Crowely Court Building, 133 Riverfront Blvd., LB 40, 6th Floor, Dallas, Texas 75207-4313 and Wayne Huff.

Orvis W.

Free access — add to your briefcase to read the full text and ask questions with AI