Reyes, Jose Julian

Opinion

JOSE J. REYES TDC No. 821821 McConnel Unit 3001 s. Emily Dr. Beeville, Texas 78102

March 2, 2015

Mr. Abel Acosta, Clerk COURT OF CRIMINAL APPEALS P. o. Box 12308 Capitol Sllation Austin, Texas 78711

RE: Cause No.· 752079-A(Count 2) writ Of Mandamus

Dear Mr. Acosta, Clerk:

Encl·osed p'lease find Relator's Original copy of his Writ of Mandmaus.

Thank you for your time and consideration in this ma-tter.

RECEIVE'D IN Sincerely, COURT OF CRIMINAL APPEALS

MAR 06 2015 JOSE J. REYES

files Abel Acosta, Clerk CAUSE 110.-· 752079-A (Count; 2}

IN THE COURT OF CRIMINAL APPEALS AUSTIN TE_XAS

JOSE J. REYES Relator,

vs.-

THE 283th JUDICIAL DISTRICT COURT OF ~ARRIS COUN~Y, TEXAS

Respondent,

APPLICATION FOR WRIT OF MANDAUMS, PURSUANT TO RULE 52.8(c), TEX. RULE APPELLATE PROCEDURE, DIRECTING THE 283th JUDICIAL DISTRICT COURT TO PROCESS RELATOR'S APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO V. A; C. C. P., ART. 11. 0 7

TO THE HONORABLE J~DGES OF SAID APPEAL COURT:

COMES NOW, JOSB J.·· RBYBS, TDC Ro.· 821821, Relator,

and files this his Application for Writ of Mandmaus re-

questing this court to direct the 283th Judicial District

Court of: .HJ;Jrris county, Texas, to process his application

for writ of Habeas Corpus pursuant to v.-A.c.c.P., art. 11.07

in the above number and cause, presently pending before

the Respondent. In support thereof, Relator will show the

following:

-1- I.

JURISDICTION

This court has jurisdiction to issue a "Wr~f of Mandamus

in this case pursuant to article 5 § v of the Texas Constitution,

Landford v. Fourteenth Court of Appeals, 847 s.w. 581 (Tex. Cir. 1993). Moreover, purpose of (1978) Amendment to prov-

ision of Texas Constitution governing power of Court of

Criminal appeals to issue extrraordinary writs; was to confer

upon the Court of Criminal Appeals additional power to grant

e~tra~rdinary WE1ts in cases regarding "Criminal matters."

Vernon 's Ann. Cons t. , Art. I § v., State ExRel. Vance .v. Routt, 571 s.w. ~8.' 903 (Tex. Crim. App.·1978).

II.

STATEMENT OF THE CASE

Upon receipt of an application for writ of Habeas Corpus

challenging a final felony conviction, the attorney represent-

ing th~ State has (15) days to respond. See, Tex. Code Crim.

Proc., Art. 11.07, § (b). After the expiration of the time

allowed for the State to respond, the trial court is allowed

(20) days to determine whether the application contains

allegations of controverted, previously unresolved facts

material to the legality of ~he applicant's c~nfinement.

Art. 11;07, § 3(c). If the trial court determine that the

application for writ of Habeas Corpus presents such issues

it "shall enter .an order within 20 days of the expiration

o£ the time allowed for the state to reply, designating

-2- issues of fact to resolved~ Id. Thus,the trial court has

(35) days to enter an order designating issue after the

filing date of an 11.07 application for writ of Habeas Corpus.

Article 11.07 does not authorize the trial court ttO extend

the time limitation imposed by the statute, other than by

a "timely" entry of an ord~r designating issues. McCree v.

Hampton, 824 s. w. 2d• 578, 579 (Tex. Crim.· App. 1992) (em- phasis added). Without a timely entry of an order designating

issue, article 11.07 imposed a duty upon the clerk of the

trial court to immediately transmit to this court the record

from the application for a writ of Habeas Corpus, deeming

the trial court-'s inaction a finding that no issue of fact

require further resolution. Article 11•07 § 3(c).

In this case, In November 2014, Relator filed his writ

of habeas corpus in the trial court• On December 12, 2014,

the Court filed a Affidavit of JJJJDITH JOHNSON dated December

10, 2014. On January 5, 2015 the State filed their State's

Proposed Findings of fact, Conclusion of law, and Order.

On January 15,' 2015, Relator filed his Objection to State:, s

Proposed Finding of fact, conclusion of law' and Order-.· In • r ~ , • • • . . •

Relator's objection, he clearly showed the court that they

cannot finds, based on the credible affidavit of Johnson, . . -- that due to the Relat,or being convicted to of the two afore- - . mentioned offense he was not enti'tled to a Preliminary Hearing

as P.rovided by Tex;~• Gov'•t Code § 508.· 2811, BECAUSE HE DID

ROT SIGN A WAIVED.· "See, Tex.· Gov·•t Code § 508.2811, which

-3- clearly states that a Parole Panel or a des1gnee of the

Board shall prov1de w1th1n a reasonable t1me to ~ 1nmate

~person descr1bed !!f. sect1on 508.·281 (a), !!. Prel1m1nary

Hear1ng to determ1ne whether probable cause ~ reasonable . . . - . . grounds ex1st to bel1eve that the t1me ~ person has comm1tted - ,.

an act that would const1tute a v1olat1on of a cond1t1on

of release, "UNLESS" the 1nmate person comm1tted the follow1ng:

a) wa1ves the prel1m1nary Hear1ng

b)

Relator never signed a waived, waives his Prel i11.:Jnary

Hearing. See, Morrissey v. Brewer, 408 u.s. 471, 484 (1972). The "State's Propsed Findings of Fact, Conclusi6n of law,

and Order was filed on January 5, 2015." It being over

(35) days after the filing of the "STate's Propsed Finds

of Facts Conclusion and Order.

On February 23, 2015, Relator wrote a letter of delay

to the Court explaining to the Court i f :jhey selects addition

time but failed to notify the Court of Criminal Appeals

and enquiry is made to the Court .. _,'without mention of the

previously entered order designating issue a "delay Writ

leter" may well be sent :td'-the -·1:~11!'1 court. SEE EXHIBIT

u A • ATTACHED.·

-4- These untimely orders interferred with the District Clerk's

duty to transmit these writ to ~h$§ Court and are therefore

without effect. See, Martin v. Hamlin, 25 s. W• 3d. 718 (Tex.

Crim; App. 2000). The District Clerk has rio authority to

continue to hold Relator's application for writ of Habeas

corupus, and is under a ministerial duty to immediately

forward the application and related reocrd in the above

number and cause to the Court of Criminal Appeals, and the

record. See, Dejean v.District Clerk, Dallas County, 159

s.w. 2d. 183 (Tex.Crim. 2008). Relator alleges bh~t the Respondeat has a clear "ministerial

duty" prescribed by v.A.C.C.P., article 11.07, to make a

finding of fact, conclusion of law, and recommendation

on his writ within a reasonable period of time and fo~ward

the same to this court. See, Dejean, supra.

III. BRIEF IN SUPPORT

Act is ministerial for purpose of request for writ

Mandmaus, i f it cgnst.!tute duty clearly fixed and required

-by law, without exercise of discretion or judgment. Engle

v. Locker, 820 S.W. ell. 47 (1991); Curry v. Gray, 728 S.W. 2d. 128 (Tex. Crim. App. 1997).While it is b~e general rule

that a mandamus will not be issue to control b~e action

of an inferrior court or Public Officer in a matter in-

volving discretion. HOwever, the writ may issue "in a proper

case" to correct a clear abuse of discretion;" See, Crane

v. Turnks, 160 Tex. 182, 328 s.w. 2d. 434, 440 (1959).

-5- The Supreme Court ~as recognized that adaption of this

exception is particularly important "where f:he remedy by

way of appeal 1s 1nadequaf:e •.· west v. Soli tos, 56 3 s. w. 2d 240, 244 (Tex. 1978). In re-iterating this standard,

in Johnson v. Fourth Court of Appeals, 700 s. w. 2d. 916, 917 (Tex. 1985 ). The Supreme Court stated, "Mandamus 1ssues

only f:o correct: clear abuse of d1scref:1on or f:he v1olaf:1on

of a duf:y 1mposed by law when there 1s no of:her adequate

remedy by law. Id~ af: 917.

IV.

ABUSE OF DISCRETION

The Relator further coa~ends the Respondent's failure

to apply the law with respect to article 11.07, V.A.C.C.P.,

has constituted a clear abuse of discretion; when article

11.07, explicitly enumerate that the Respondent process

Relator's Habeas Corpus action within specified time limit-

ation and forward bhe application to this court. In view

thereof, the Respondent has but one choice, and it is the

duty prescribe by article 11.07, the failue to perform

this duty constitutes a clear and prejudicial abuse of the

Respondent aut y .fi xea by 1 a,,_. consequently, R~latori•:S·_

right of access to the courts; and to be heard on his

Habeas Corpus action; has quite stringently been impaired

by th• action of the Respondent.

-6- Therefore, WRit of Mandamus will issue when under the

circumstances, law ana facts permit trial court to make

but one decision and it refuses to make ~~at decision.

Proffer v. Yates, 734 s.w. 2d. 671, 673 (Tex. Cir. 1987}. In, Walker v. Packey, 827 s. w. 2d. 833 (Tex. 1992}. The Supreme Court stated: "~r1al cour~ clearly abuses 1~'s

d1scre~1on, for purposes of mandamus, v1~h respec~ ~o

resolu~1on of fac~ual Jssues or ma~~ers comm1~~ed to ~r1al .. . ~ . .. cour~•s d1scre~1on, only 1f ~r1al court could reasonably

have reached only one dec1s1on~· Id. Also see, State v.

Walker, 679 s. w. 2d. 484 (Tex. Cir. 1984} (Mandamus will

lie to correct an action of trial judge who:comidf:s abuse

of discretion, or violation of clear auty under law and

when there is no other adequate remedy at law"} Ayres v.

Canoles, 790 s. w. 2d. 54 (Tex. 1990} ("Writ of Mandamus will issue to correct ~rial court actions when there has been

clear abuse of discretion particularly where remedy by law

of appea 1 is inadequate. "}

v.- APPEAL IS NOT AN ADEQUATE REMEDY - .. The Relator ,. contends ~hat bhe issue o£ the trial court

to apply the dictates of v. A. c. c. p., Article 11. 07, is not an appealable issue.

-7- VI.

PRAYER OF RELATOR

WHEREFORE, Premises considered the Relator, prays that

this court issue an order directing the Respondent to

forward th~~r recommendations, finding of facts and conclu-

sion of law, and forward the same to this within thirty

( 30) days.

cConnell Unit 3001 S; Emily Dr. Beeville, Texas 78102

CERTIFICATE OF SERVICE

I, JOSE J.· REYES, TDC No. 821fS21, certf~y that a true

and correct copy of uee foregoing application for Writ of

Mandamus has been served by placing same in the United States

mail on this _d__ day of j/[///)ft,? , 2015, addressed

to:

District Clerk Harris County, Texas

8JJ P. o. Box ~4651 Houston, Texas 77210-4651

'j ... !

' J

-8- ;.' lA j

t .; j ---t-t_ 23 February 20'1's Jose J. Reyes .. ·' 'I'DC No. 821821 '··• McConnell Un1t 3001 s. Bm1ly Dr. 1 Beev1lle, 'I'exas 78102 ·.' .r,, ,'•

Mr; . Abel 'J.i Aco~~a,:., Clerk Court'~f Cr1m1nal Appeals P. ;o. "Box 12 30!8', · Cap1 tol st. ,• Aus.t1n, Texas·:-.,8.'1 11 ... i:

Re• ci.vse Bo.· 752079-A (Count 2) BxParte Retyes Deay wr1~; etter ., '

De~r fr· Acosfa, Appeal Clerk: ~.

On Januarg, S, 201S, the State's Proposed F1nd1ng~ of f!lct, conc1.us1ons of law and order was f1led w1th the court. In tha~~ same Mot1dn, the State cla1med the mot1on wa~ s~nt to th~ tourt of Cr1m1nal Appeal. ~ .. : . Here 1t ~~ ~ebruary 23, 2015, ~nd I haven't rece1ved a nwh1te Card\ from the Court of Cr1m1nal Appeal 1nform1ng me th{Jt the wr·1t was now pend1ng 1n that court. ~. ':i_-; I

iunderst1:ind to ga1n IJome t1me the court entered order ektend1ng the:statutory t1me 11m1ts a pract1ce condemned 1n · McCree v. :H·ampton, 8 24 S. W. 2d. 5 78 (Tex. Cr. App. 1 992). Ho~evpr, that~case set out a method whereby the tr1al ~ourt can e1ther on mot1on of the State ~r 1ts o•n 1n1t1at1v~, ga1n more t1me'''to 1nvest1gate the allegations ra1sed w1th1n a wr1t appl1qation.

If .the tr'lal court selects th1s opt1on but falls to not1f} the Cou~t of Cr1m1nal Appeals and enqu1ry 1s made to the Court ·w1 thout ment1on of the prev1ousl y entered order des1gna~Jng 1ssue a "delayed wr1t lettern may well be sent to th~·tr1al court w1th cop1es to the D1str1ct clerktand d1st~1ct attorney enqu1r1ng 1nto the alleged delay. ·.it i :1' . I herebif·request that you conduct a 1nvest1gat1on ~nto these matters ... an·d order the f1les to those f1nd1ngs and trans~1t the~~.long w1th the wr1t transcr1pt to the Cl~rk of th~ Court of Cr1m1nal Appeals as requ1red by law. ·r' -1-

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;. i:,;·y. . .'i· r.

REYES·. l '· TDC No. 82182. · McConnell Un11t 3001 s. Em1ly .:,,Dr. Beev1'l}e, Texas 78102

f11es ;i cc.: ~r. Chr1s ,Dan1e1 D1str.f.ct Clerk Harr1s C.()unty D1str1ct Clerk 1201 Fran·k11n P. o. ;;Box 4651 Houston, .Texas 77210-4651

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