Semien, Erwin Eugene

Opinion

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COURT OF CRIMINAL APPEALS

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-·-----------------------------IN- THE-COURT--<iF-CRIMINAt. APPEALS FOR THE STATE OF TEXAS COURT OF CRIMINAL APPEALS ,.

ERWIN EUGENE SEMIEN § 'JUN 1·7··2016.

v. § CAUSE # .22500

STATE OF TEXAS § 75th DISTRICT COURT oF LIB~I Aoomw, Clerrk

APPLICATION FOR WRIT OF MANDAMUS

Petitioner ERWIN EUGENE SEMIEN Comes before this Honorable Court on this Pro Se' Motion WRIT OF MANDAMUS and ask this Court to ORDER the Clerk of the Court of the 75th DistFict Court of LIBERTY COUNTY, TEXAS (Donna Brown) to issue a. "Void Order"

voiding the Judgment in cause no. 22500 (Exhibit B). The Judgment was obtained in VIOLATION OF THE 14th and 5th AMENDMENT and I am "Actually Innocent" of this offense 569 U.S., 133 S Ct., 185 L.Ed 2d. 1019 McQUIGGIN v. PERKING (2013). The Indictment (Exhibit A) was PROCURED BY FRAUD and is not an "Official Court Record'' (See Exhibit A). The Clerk of the Court Cannot and Will-

-not "Certify" this Indictment as a "TRUE AND CORRECT" Indictment • I Have never been Indicted by a Grand Jury On this Offense

And this "Sham Indictment" was used to start Unlawful Proceed-

-ings against Petitioner. This is the work of a "Rogue and Over-

/

zealous" Police officer (now ex-officer) DEARL HARDY. His malicious and unlawful actions RESULTED IN THE CONVICTION OF AN INNOCENT MAN. All I am asking this Honorable Court to do is to ORDER The Clerk Of The Court Of the 75th District Court Of LIBERTY COUNTY, TEXAS To "Certify" the Indictment as a

1.)

"TRUE AND CORRECT" Copy of a Indictment Or to "SHOW CAUSE" as

to why she cannot. And upon showing that no such Indictment ~----- --- ----- ------------ -~---

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ever existed I ask this Honorable Court to "ORDER" the Clerk

to issue a VOID ORDER voiding the unlawfully obtained Judgment in Cause No 22500 (Exhibit B). As the Judgment was Never Valid to begin with and remains "forever invalid" as it was procured by fraud (see) UNITED STATES V. WILLIAMS, 341 U.S. 58, 95 L.Ed 747, 71 S Ct. 595 (1951). I am still Suffering The "Collateral Effects" of this Void Order as it has been used against me in another court (see Exhibit C) Therefore the issue is Not Moot.

PRAYER FOR RELIEF

Applicant Hopes and Prays that this Honorable Court GRANT any and all relief that applicant request as it would be "In The Intrest Of Justice" and in compliance with the Laws of this State as well as the Laws Of The UNITED STATES.

RECEIVED IN ,

COURT OF CRIMINAL APPEALS

JUN 17 2016

Abe1 Acosta, C~errk

2. )

•

CERTIFICATE OF SERVICE

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I Hereby Declare Under Pentaly of Perjury That I am the

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Petitioner, I have Read 'this petition or had it read to me,

and the information in this petition is true and cbrrect to the best of my knowledge. I understand that any false statement of a material fact may serve as the basis for prosecution for prosecution for perjury.

Date:

f

!lw/U_; ~~ J ao/~ ~u,C LP ERWIN SEMIEN (Petitioner)

!

EXHIBIT: A

EXHIBIT: B .... ..• NO. 22,500

THE STATE OF TEXAS IN THE 75TH JUDICIAL DISTRICT COURT VS. OF LIBERTY COUNlY, TEXAS

ERWIN EUGENE SEMIEN APRIL TERM, 2001 TRN #001 011 6842 JUDGMENT ADJUDICATING GUlLT:

SENTENCED TO INSTITUTIONAL DIVISION JUDGE PRESIDING: J. C. ZBRANEK DATE OF JUDGMENT: JULY 26, 2001

STATE'S ATTORNEY: MICHAEL MARK DEFENDANrS ATTORNEY: PETER JUSTIN OFFENSE CONVICTED OF: POSSESSION OF A CONTROLLED SUBSTANCE, NAMELY: COCAINE - HSC 481.115 (d)

DEGREE OF OFFENSE: SECOND DEGREE FELONY DATE OFFENSE COMMITTED: FEBRUARY 12, 1998 DATE OF SUPERVISION ORDER: AUGUST 18, 1999 PLEA TO MOTION TO ADJUDICATE: NOT TRUE FINDING OF COURT: TRUE

TERMS OF PLEA AGREEMENT (IN DETAIL): PUNISHMENT WAS ASSESSED BY THE COURT, JUDGE ZBRANEK.

CONDITIONS VIOLATED: (a) as set out in the State's Motion to Revoke Unadjudicated Probation.

{1) Th'e Defendant, ERWIN EUGENE SEMIEN, on or about the 7th day of June, 2001, In Uberty County, Texas did then and there knowingly discharge a firearm at or in the direction of an individual, namely, Frances Thomas. Said offense occurred during said probationary period.

DATE SENTENCE IMPOSED: JULY 26, 2001 COSTS: $256.00

SENTENCE OF IMPRISONMENT ATTORNEY FEES: $-0-

INSTITUTIONAL DMSION OF TOCJ: TEN (10) YEARS FINE: $ 2,500.00

TIME CREDITED: 10-07-1998 thru 10-08-1998/07-02-2001 thru 07-26-2001 DATE TO COMMENCE: JULY 26, 2001 TOTAL AMOUNT OF RESTITUTION: $140.00

RESTITUTION TO BE PAID TO: Deparbnent of Public Safety, Accounting: Lab Restitution, P. 0. Box 4087, Austin, TX 78773,L-262314

THIS SENTENCE IS TO BE SERVED CONCURRENT WITH ANY OTHER SENTENCE UNLESS OTHERWISE SPECIAED.

On the date stated above, the Defendant entered a plea of nolo contendere to the offense stated above and was granted a deferred adjudication In the above numbered and styled cause and placed on community supervision as stated above, subject to the conditions of supervisjon set out in the order in this cause. Thereafter, and during the period of supervision, the State filed a Motion to Revoke Unadjudicated probation in this cause, alleging that the Defendant had violated conditions ofsupeMsion set out in said order.

On the 25111 day of July, 2001, both parties announced ready for trial, and the Defendant waived the reading of the Motion in open Court and, upon being asked by the Court as to how the Defendant pleaded, entered a plea of not true to the allegations in the Motion. Thereupon, the Court admonished the Defendant of the consequences of said plea and, it appearing to the Court that the Defendant is ~mpetent and that the Defendant is not influenced in making said plea by a consideration of fear, or by any

CERTIFIED

COPY

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Page2 o£2

Cause #22,500

ElWin Eugene Semien

persuasion prompting said plea, the said plea of not true is by the Court received and Is here and now entered of record In the Minutes of the Court as the plea of the Defendant. On July 26, 2001, the Court, after hearing all of the evidence for the State and the Defendant and argument of counsel, is of the opinion and finds that the Defendant violated the conditions of the Defendant's community supervision as stated above.

It is, therefore, ORDERED, ADJUDGED AND DECREED by the Court that the Deferred Adjudication Order, heretofore entered In this case, is hereby set aside as stated above, and that the Defendant be and is hereby adjudged guilty of the offense stated above, and that the Defendant committed said offense on the date stated above, and that punishment be fixed as stated above by the Court

And thereupon the Court asked the Defendant whether the Defendant had anything to say why said sentence should not be pronounced upon said Defendant, and the Defendant answered nothing In bar thereof. Whereupon the Court proceeded, In the presence of said Defendant and the Defendant's attorney, to pronounce sentence upon said Defendant as follows:

It is ORDERED by the Court that the Defendant, who has been adjudged guilty of the offense stated above, be and is hereby sentenced to the punishment stated above. The Defendant shall be taken by the authorized agent of the State of Texas or by the Sheriff of Uberty County, Texas, and by him safely conveyed and delivered to the Director of the Institutional OMsion of the Texas Deparbnent of Criminal Justice, there to be confined in the manner and for the period aforesaid. The Defendant is hereby remanded to the custody of the Sheriff until such time as the Sheriff can obey the directions of this sentence.

Said Defendant is given credit on this sentence for the periods of 10-07-1998 thru 10-08-1998/ 07-02-2001 thru 07-26-

2001 on account of time spent in jail.

·~ned~S;~a

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Defendanfs _g_ thumbprint Notice of Appeal: waived

Assistant District Attorney

Defense Counsel

FILED n

at.3:/0 o·~.

DO AUG 1.. 2001

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EXHIBIT: C

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IN THE UNITED STATES DISTRICT COURT ' F !' i..._ ;::-.;·]

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FOR THE EASTERN I)ISTRICT OF TEXA.SS. r.·:::: L~!~~; GCURT

BEAUMdNT DMSION

UNITED STATES OF AMERICA *

*

VS. *

*

ER~EUGENESEN.ITEN * CLINT LARIVE * INDICTMENT

. THE UNITED STATES GRAND JURY CHARGES:

COUNT 1

That from on or about April, 2005, the exact date being unknown to the Grand Jury, and continuing until on. or about May 17, 2005, in the Eastern District of Texas and elsewhere, ERWIN EUGENE SEMIEN and CLINT LARIVE, Defendants herein, did knowingly and intentionally, conspire, combine, confederate and agree together, with each other, and with other persons known and unknown to the Grand Jury, to distribute and possess with intent to distribute a Schedule II controlled substance, namely, cocaine, in an amount of less than five . hundred (500) :grams, in violation of Title 21, United·States Code, Section 841(a)(l), ~11 in violation of Title 21, United States Code, Section 846.

COUNT 2 I

On or,-caboutMay 13, 2005, in the Eastern District of Texas, ERWIN EUGENE SEMIEN, Defendant herein, did knowingly and intentionally possess

with intent to distribute a Schedule II controlled substance, namely, cocaine, in an A TR.UE COPY I CERTIFY

DAVID J. MALAND, CI.IERP<

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2

amount of less than five hundred (500) grams, in violation ofTitle 21, United States Code, Section 84l(a)(l).

COUNT 3

On or about May 13,2005, in the Eastern District of Texas, ERWIN EUGENE SEMIEN, Defendants herein, did knowingly and intentionally possess - with intent to distribute a Schedule II controlled substance, namely a mixture or substance containing a detectable amount of methamphetamine, in an amount of less than fifty (50) grams, in violation ofTitle 21, United States Code, Section 841(a)(l).

COUNT 4

On or about" April 8, 2005, in the Eastern DistrictofTexas, CLINT LARIVE, Defendant herein, did knowingly and intentionally possess with intent to distribute a Schedule II controlled substance, namely, cocaine, in an amount of less than five hundred (500) grams, in violation of Title 21, United States Code, Section 841(a)(l).

COUNT 5

From on or about May 13, 2005, to on or about May 16, 2005, in the Eastern District of Texas, ERWIN EUGENE SEMIEN, Defendant herein, did knowingly,possess a firearm, namely, a Ruger, Model P90, .45 caliber pistol, bearing serial number 66229202, a Raven Arms, Model1v.IP-25, .25 caliber pistol, bearing serial number 1851075, a Rossi (Taurus) .38 caliber revolver, bearing • • .•:.:··. '" ....

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serial number R179302, and a Essential Arms Company, Model J-1~, .223 caliber rifle, bearing serial number EAl 0556, during and in relation to a drug trafficking crime for which said Defendant may be prosecuted in a court of the United States, namely, possession of cocaine and methamphetamine with intent to distribute in violation of Title 21, United States Code, Section 841(a){l), all in violation of Title 18, United States Code, Section 924(c)(l ).

~-COUNT 6

.. From on or about May 13, 2005, to on or about May 16, 2005, in the

· Eastern District of Texas, ERWIN EUGENE SEMIBN,"Defendant herein, did . ~ . .

·<Ic.nowingly possess in and affecting commerce a firearm, to wit: a Ruger, Model P90, .45 caliber pistol, bearing serial number 66229202, a Raven Arms, Model ·~ .. ·

MP~25, .25 caliber pistol, bearing serial number 1851075, a Rossi (Taurus) .38

caliber revolver, bearing serial number R179302, and a Essential Arms Company, . ··... ·...

·lvfodel J-15, 223 caliber rifle, bearingserial number EA10556, and Defendant had . -. . \:.... '

. · · previously been convicted in a court of a crime p-r,~{fhable by imprisonment for a term exceeding one year, to wit: Possession of a Controlled Substance, namely: · cocaine, a felony, it1 Cause Number 22500, in the 75th Judicial District Court, · · Liberty County, Texas on July 26,2001, in violation ofTitle 18, United States Code, Section 922(g)(l ).

NOTICFJ'OF INTENTION TO SEEK CRIMINAL FORFEITURE Criminal ForfeiturePursuant to 21 U.S.C. § 853 .In committing the felony offenses alleged in Counts 1 through 3 and 5

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