Rebector, James

• Court: Court of Appeals of Texas
• Decided: April 7, 2015
• Docket: WR-43,586-09
• Status: Published

Opinion

COURT OF CRIMINAL APPEALS OF TEXAS

P.O.~QX 12308,CAPITOL; STATION ~ .

AUSTIN,TEXAS 78711

IN THE SOVERELGNITY OF. THE COURT OF JUSTICE

******* RECE~VED ~f~ THE TEXAS COVRT OF CR~MINAL APPEALS .. ---¥ COURT 0~ CRIMINAl APPEALS IN RE THE STRAWMAN JAMES REBECTOR iSS P APR 07 2015 MOTION FOR LEAVE TO FILE WRIT OF MANDAMUS ~b®l Acosta, Clerk TO THE HONORABLE JUSTJCES OF THE tOURT OF CRIMINAL APPEALS ENBANC:

1. \

. The .Re1ator ~ . seeks ' leave of This Honorable Cour,t o.f Justice To file Writ ''··- of Mandamus,and have such Mandamus Issue This Court of Justice's Jur1idict~on .. ~·

has been invoked by The Proper filing of The Article 11.0~,Writ of Habeas ,. Corpus,with a Motion: To Vacate And Set Aside Entry Of Void Juagment properly

;attached ~n The 144th 5udicial District Court of Bexar County,and ~nder The . "'· .:..

Aut~oriti of Metropolitain ~iansit Aut~ority v.Jackson 2L2 S.W:3d 797(Tex .. ·App-Hou~ton ( lstDIST.) 2006). MTAv .Jackson is controlling in t:h'i;ii rna tterbeca~se -· .. ~

,,· r the Judgment of conviction and. sentence is Yoid under ·Te'xas Law:.

The Writ of Habeas Corpus form serv_es as the VEHICLE by which the Motfon ·To

Vacate and set Aside Entry of Void Judgment receives Proper Cognizance b~fore

The Trial Court,which Retains Its Plenary Power Over It~· Vo~d Judgment(s).

\ Id. MTA v.Jackson 212 S.W.3d 797. For This reason the Habeas Corpus Proceeding ., is essentially transformed into a proceeding where1ri the Trial Cd'urt exercises !Jf!J

exclusive PLENARY POWER TO VACATE THE ENTRY OF ITS:VOID JUDGMENT.

An impromptu or arbitrary refusal to address the issue(s) as set forth is not

a discretionary matter,but a miriist~r~ duty as so established and settled \' under Texas Law.~It is w~ll settled that a Trial ~ourt has not only Power,

but a Duty To Vacate Entry of a Void Judgment anytime,either during term,or

after term,with or without motion;(And)Trial Court has no discretion to refuse

to set aside Void Judgment,but has a duty to do so at anytime that ~uchmatter

is brought to its· attention." Id Metropolitain Transit Authority v.Jackson , 212 S.W.3d 797 1· .•. This Honorable Court of Justice has cons1stently · held. that Void Judgments

may always be collaterally attacked at anytime, Hoang v. State,872 S.W.2d

694~698~tex.Crim.App.l993; ExParte Spaulding 687 S.W.2d at 745and for the

reason of a Void Judgment being made known To the Trial Court,Relator seeks

Leave to f~le Writ of Mandamus,and for Mandamus To Issue in this Matter due

To Trial Courts failure and refusal to respond.

EXECUTED ON THIS 3rd DAY OF APRIL 2015.

Sincerely

2. COUR":f OF CRIMINAL APPEALS OF TEXAS

P.o:BOX 12308 1 CAPI~OL STATION

AUSTIN 1TEXAS 78711 RECElVEDU~ . ''r-.: tOURT OF CBlMI~~.tAPPEALS ·~~·-'

IN THE SOVEREIGNITY OF-THE COURT OF JUSTICE 1ft (j j l!}h ******* J. A~ Acosta, Clerk THE TEXAS COl]RT OF.>t.RIMINAL APPEALS

IN RE THE STRAWMAN JAMES REBECTOR relj' tWI ·' .·. MOTION~~OR ISSUANCE OF WRIT OF MANDAMUS ~; The Re~~tor was convicted in the l44th Judicial District Cburt of Bexar County

Puri~~nt Texas He~l~h and Safety Code §481.112. prior to Trja~~the TrialCourt ·I~ •~ .::·;._.,, .. J ;

_

Judge ·ordered A _Psychiatric evaluation to determine the Inc<:)mpetency of the

Relat6r1Pursuant Texas Code of Criminal Procedure,Article.46.02§2(a) (Prior

To Its REPEAL in2004). As the Law applies to the FACTS ·of thiS:. ·case 1 The Trial .

Cou,rtPos'sessed a· ministerial duty to co.pduc;t, the ~ncompen~ency_ hearingLP_ ri~r , 'fht /(ec~fl/l t5 c(~i/t)ld trf ~AJiA/t!.0/1-1/)e,/-efi/C~ n:4n~/' to the commen~ement of the tria1. The Tr1al Court's fa1lur~ to substant1ally .

c?·mply with Article 46. 02 § 2 (a) Whereby the ministerial duty is duly. noted by

the mand~tory language-SHALL:Government Code § 3ll.bl6(2)- renders all Ytoceedin

gs thereafter unequivoc'ally Void1rather than merely Voidable. 'For the foregoing

Proprosition1The Relafor contends that the final Judgment and it~ .. ensuing .. mandate sets forth that the Proceedings and ORDERS bF THE COURT COMPLY with 0 REGULARITY and satisfy ·The Presump~ion Of' Correctness. As such there is an

inferenc~ that the trial Court" rendered Judgment against a incompetent

indi v idual1 when .such de'termina t ion had not been made. Therefore 1 because the

Trial Court failed t6.substantially comply with Article 46.02§2(a),Tex.C.Crim. ' -:.~.

proc. Aft~r ordering the requisite Psychiatric evaluation1the final Judgment

is effected and Void. As expressed1and Verified in Southern Insurance Company

v.Brewster 249,S.W.3d 6,(Tex.App.-Houston[lst.DIST.] 200e7) -., ()

"Wh.en a Trial Court renders judgment without Compliance with Section 410.258(a) .fo_CAwtclh e.. ~ttat~-terA 16 ct {e_·!jal 1111.{./ll-kj~ _ 1 ' the Trial Court retains. its~€lenary Power to set it aside.'' The same principle

is applic;4f,le in this matter1and must be stated as follows:"When a Trial Court

renders judgment without Compliance with Article 46.02§2(a) the judgment is

a legal null~~y." 1.

' .. ··--·~- _·___..:~, ·- ' .. 2. 'Th~ Relator has Presented-t~~ Tri~l Cburt with the foregoing .. ; .. ;lf.·il1· . ':':{,!!,"' issue of Void Judgment made c~niza'q~:e, in The motion TSS:,vacate and Set Aside Entry of Void :t'· judgment,by The VEHICL~ Pre~9ribed as Writ of Habeas Corpus-Article 11 1 07. The t r i a 1 court has fa i l.e d , or r e fused to respond in any manner even ....... • ·.• i •!;.~ after being presented with two 1tle #rrufkal · notf6~s requesting Proc~§~9,8~0~-s~~ethed copy of the letter r• '•

to the trial Court "'~'/{ ' ' -'· ,-:~r.·~· ce~tl/ies clerk ' the Relator's Du.e Diligence to obtain a ruling 'I''''

from the Tria~.Court. i.r.b,'i~~ timely fashion.The Trial Court has abused it~ discretion

_in failingto consider and rule the Properly cognizable motion. In Re E@ 3'7 Eli

Hearn 137 S.W.3d)681 (Tex.App.San-Antonio 2004) it was held that: ;'When a Motion

is prf~i{¥ filed and Pending before a Trial Court, The act of giving consideration

to,.and ruling upon that motion is a ~inisterial,and Mandamus may issue to compel

the Trial judg~ ·to act rd at 683-684,(Citing Safety-Kleen Corp v.Cearcia 945 ·

S.W.2d 268,269 (Tex.App.-San Antonio 1997 original Proceeding).

I'he Relator has made the requisite showing of bringing the matter to the Tria.l Court and the Trial Court's failure to respond or rule Barnes v.State 832 S.W.2d

424,426-427 (Tex.App.-Houston[lst DIST.]l992,original proceeding).

3.

For the reasons set forth above,The Relator requests this Honorable Court of Justic

e to Issue Mandamus Compelling the Trial Court to rule in accordance with

Met'ropolitain . .f'ransit Auth'ority v.Jackson 212 S.W.3d,797 specifically inlight

of the Trial 'court's Plenary Power and to take cognizance of The Void Judgment

Presented thereto.

EXECUTED ON THIS 3RD DAY OF APRIL 2015

Respectfully requesting,

~~~f!U933 ~TOR#896933 ALFRED D.HUGHES UNIT,4Dll-04B ROUTE 2,BOX 4400 GATESVILLE,TEXAS 76597 (254)865-6663,UNIT WARDEN • • • ' ,., • ' ,; "!/ ~-~ ,j\

' .

. ,.

!/{171-C-ll tdJ OJ/ v

·- ./ / . '. (