Simon, Thomas Allen

Opinion

WR-83,783-01

COURT OF CRIMINAL APPEALS WR-83,783-01 AUSTIN, TEXAS Transmitted 9/3/2015 1:36:05 PM Accepted 9/3/2015 1:44:55 PM I N T H E C O U R T OF CRIMINAL APPEALS ABEL ACOSTA CLERK

OF TEXAS

RECEIVED

COURT OF CRIMINAL APPEALS 9/3/2015

I N RE T H O M A S A L L E N S I M O N , Relator ABEL ACOSTA, CLERK

O N A P P L I C A T I O N FOR A W R I T OF M A N D A M U S I N CAUSE N O . 42908 I N T H E 424™ D I S T R I C T C O U R T FROM BURNET COUNTY

RESPONSE OF

Hon. Wiley B. ^^Sonny" McAfee, District Attorney Real Party i n Interest

OFFICE O F D I S T R I C T A T T O R N E Y 33^'' and 424'^ J U D I C L ^ D I S T R I C T S Wiley B. McAfee, District Attorney P. O. Box 725, Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx,us

By: GaryW.Bunyard Assistant District Attorney State Bar N o . 03353500

A T T O R N E Y FOR REAL PARTY I N I N T E R E S T WILEY B. " S O N N Y " McAFEE, D I S T R I C T A T T O R N E Y

September 3, 2015

Oral Argument is Waived

Identity Of The Parties

Trial Court/Respondent

Honorable Evan Stubbs 424'^ Judicial District Burnet County Courthouse Annex (North)

1701 East Polk St., Suite 74 Burnet, T X 78611 424coordinator@dcourttexas.org

Counsel for Real Party i n Interest - Wiley B . "Sonny" McAfee, District Attorney

Gary W . Bunyard Assistant District Attorney P. O. Box 725 Llano, Texas 78643 (325) 247-5755 State Bar N o . 03353500 g.bunyard@co.llano.tx.us

Real Party i n Interest - Gary E. Prust

Gary E. Prust Attorney at Law 1607 Nueces St.

Austin, T X 78701 (512) 469-0092 gary@prustlaw.com

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Counsel for Relator

Tracy D . Cluck Attorney at Law 12600 H i l l Country Blvd., Suite R-275 Austin, T K 78738 (513) 329-2615 State Bar N o . 00787254 tracy@tracyclucklawyer.com

O f Counsel for Relator

L. T . "Butch" Bradt Attorney at Law 14015 Southwest Freeway, Suite 4 Sugar Land, T X 77478-3500 (281) 201-0700 State Bar N o . 02841600 ltbradt@flash.net

Relator

Thomas Allen Simon SO #26546 Burnet County Jail 900 County Lane Burnet, T X 78611

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Table Of Contents Page

Index o f Authorities vi Statement o f the Case 1 Statement on Oral Argument 1 Statement on Jurisdiction 1 Response to Issues Presented 2 Statement o f the Facts 3 Summary o f the Argument - Response to Issue N o . 1.

l.a. The Respondent has the authority to remove appointed counsel when the Respondent has made a finding o f good cause that is entered on the record 5

l.b. Where the Respondent has authority to remove appointed counsel for good cause that is entered

on the record Mandamus w i l l not lie 5 Argument on Response to Issue N o . 1.

1.1. Principals o f Law 7 1.2. Applicable Facts 8 1.3. Discussion and Conclusion 8

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Summary o f the Argument - Response to Issue N o . 2.

2.a. The Real Party i n Interest neither joins nor opposes Issue N o . 2 because the Court's order entered on August 26, 2015, to stay further proceedings i n the underlying cause until this application for writ o f mandamus is resolved effectively renders this Issue moot 10

Argument on Response to Issue N o . 2.

2.1. None Presented by Real Party i n Interest 10 Prayer for Relief 11 Certificate o f Word Count 11 Certificate o f Service 12

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Index Of Authorities

Case Law Page Braxton v. Dunn, 803 S.W.2cl 318, 320 (Tex.Crim.App. 1991). 7 Ex parte Billy Burl Clayton, 171 Tex. C r i m . 398;

350 S.W.2d 926 (Tex. C r i m . App. 1961) 8 Stotts V. Wisser, 894 S.W.2d 366 (Tex. C r i m . App. 1995) 9

Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App. 1981) 7, 9 TPwmas v. State, 550 S.W.2d 64, 68 (Tex. C r i m . App. 1977) 7

Constitutions U.S. Const, amend. V I 7 U.S. Const, amend. X I V 7

Statutes/Rules Tex. Code C r i m . Proc. Art. 26.04 7 Tex. Code C r i m . Proc. Art. 26.04 (j) (2) 7, 8 Tex. Disc. R. of Prof. Cond. Rule 303 (a) (1) 8

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statement Of The Case Counsel for the Relator has adequately set forth the Statement o f the Case except that Relator was arrested and later indicted for the offenses o f Sexual Assault and Aggravated Assault Causing Serious Bodily Injury. Relator was never charged nor indicted for Aggravated Sexual Assault. These charges are pending and awaiting trial subject to the resolution o f this application for writ o f mandamus.

Statement on Oral Argument The undersigned waives Oral Argument. The undersigned does not believe that Oral Argument w i l l be beneficial for this case for the reason that the issues are straight forward and lack any novel or complex nuances. Should the Court believe that Oral Argument w i l l assist the Court i n any way, the undersigned w i l l gladly accommodate the Court.

Statement on Jurisdiction While not conceding the right to relief. Real Party I n Interest acknowledges the jurisdiction o f this Court as set forth by Counsel for Relator.

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R e s p o n s e To Issues Presented Response T o Issue N o . 1:

l.a. The Respondent has the authority to remove appointed counsel when the trial court has made a finding of good cause that is entered on the record.

1. b. Where the Respondent has authority to remove appointed counsel for good cause that is entered on the record Mandamus w i l l not lie.

Response to Issue N o . 2:

2. a. The Real Party i n Interest neither joins nor opposes Issue N o . 2 because the Court's order entered on August 26, 2015, to stay further proceedings in the underlying cause until this application for w r i t o f mandamus is resolved effectively renders this Issue moot.

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statement Of TIte Facts

The Relator was arrested on March 24, 2014, for two counts o f Sexual Assault and one count of Aggravated Assault Causing Serious Bodily Injury. The Relater is not now and has never been charged w i t h Aggravated Sexual Assault i n regard to this case as is alleged i n the Petition for Mandamus. The Respondent appointed Tracy D . Cluck on April 8,2014, to represent the Relator on these charges. A duly empaneled Grand Jury then returned an Indictment on June 3, 2014, charging the Relator w i t h two counts o f Sexual Assault and one count o f Aggravated Assault Causing Serious Bodily Injury.

As described by Counsel for the Relator, Tracy D . Cluck filed ex parte motions seeking funds for the employment of a medical expert and for additional funds for investigative services. The Respondent called for an ex parte hearing on these motions. RR Vol. 1 Page 4. Present at this hearing was Tracy D . Cluck and the Relator. RR Vol. 1 Page 4. I n presenting the reasons for the funds being requested Tracy D . Cluck informed the Respondent that he would not be able to provide the Relator effective assistance of counsel without the funds. RR Vol. 1 Pages 4 - 8 . In making the decision to remove Tracy D . Cluck as counsel for the Relator, the

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Respondent stated that the Respondent was not going to put M r . Cluck i n a position where he would feel like he was being ineffective. RR Vol. 1 Pages 11 - 12. Specifically the trial court held:

" T H E C O U R T : I ' m not removing you because you've requested the additional funds. What you're stating to the Court is that w i t h o u t those funds you don't believe you can - you can provide effective assistance o f counsel. That's specifically ~

" M R . C L U C K : Well, what -

" T H E C O U R T : Hang on.

" M R . C L U C K : Go ahead. I ' m sorry.

" T H E C O U R T : That's specifically what you said and I want someone else to look at this case."

RRVollPagel2.

Later i n the day the Respondent appointed Gary Prust as new counsel for the Relator.

Summary Of The Argument on R e s p o n s e to Issue No. i

l.a. T h e Respondent has the authority to remove appointed counsel w h e n the Respondent has made a finding o f good cause that is entered on the record, l.b. Where the Respondent has authority to remove appointed counsel for good cause that is entered on the record Mandamus w i l l not lie.

Relator complains that the Respondent did not have good cause to remove Tracy D . Cluck as Relator's appointed counsel. However, M r . Cluck had expressed to the Respondent his belief that he was unable to provide effective assistance o f counsel unless the Respondent granted the funds requested. The Respondent (a) was not i n the position o f granting the funds requested due to the excessive nature o f the request, (b) was aware that none o f the other three attorneys representing the three co-defendants had expressed such an excessive request, ( c) had extensive personal experience i n representing clients acting i n the role o f a criminal defense attorney for court appointed clients prior to being elected to the bench, and (d) was sufficiently aware o f the facts o f the instant case to believe that the level o f funds requested was excessive. For these reasons the Respondent had concern that i f the

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excessive requests were not granted, M r . Cluck would move forward to trial o f the case under conditions that would create an appellate argument for ineffective assistance o f counsel and thus, potentially require a second trial at the expense o f judicial economy and the taxpayers o f Burnet County.

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Argument On R e s p o n s e to i s s u e No. 1 1.1 Principals of Law Where a person accused o f a crime is indigent the trial court is obligated to appoint competent counsel to represent the person. Tex. Code C r i m . Proc. Art. 26.04; U.S. Const, amend, V I and X I V ; Thomas v. State, 550 S.W.2d 64, 68 (Tex. C r i m . App. 1977).

Where counsel has been appointed to represent a person, the court has the authority to remove and replace said appointed counsel i f the court makes a fmding o f good cause that is entered on the record. Tex. Code C r i m . Proc. Art. 26.04 0 (2).

Mandamus relief is available only when the relator can establish two things: first, that no other adequate remedy at law is available; and second, that the act he seeks to compel is ministerial. Braxton v. Dunn, 803 S.W.2d 318, 320 ( T e x . C r i m A p p . 1991). A n act is ministerial "when the law clearly spells out the duty to be performed . . . w i t h such certainty that nothing is left to the exercise o f discretion or judgment." Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420,424 (Tex.Crim A p p . 1981).

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A n attorney shall not knowingly make a misrepresentation o f fact to the court.

Ex parte Billy Burl Clayton, 171 Tex. C r i m . 398; 350 S.W.2d 926 (Tex. C r i m . App. 1961); Tex. Disc. R. o f P r o f Cond. Rule 303 (a) (1). 1,2 Applicable Facts I n this case, M r . Cluck sought approval o f the Respondent for additional funds in an unusually large amount for a medical expert and for additional investigation. RR V o l . 1 Page 4. I n presenting his argument to the Respondent, M r . Cluck stated that he w o u l d not be able to provide effective assistance o f counsel, or at least was concerned about his ability to do so, without the requested funds. RR Vol. 1 Pages 4-8. Expressing concern about M r . Cluck's apparent inability to provide the Relator w i t h the standard o f representation required by law unless the request for excessive funds was granted, the Respondent determined it necessary to remove M r . Cluck as counsel for Relator and appoint other counsel. RR Vol. 1 Pages 1 1 - 1 2 . IJ Discussion and Conclusion Whether mandamus should lie i n this matter is determined on whether the Respondent did or did not have good cause to remove Tracy D . Cluck as counsel for the Relator i n accordance w i t h Tex. Code C r i m . Proc. Art. 26.04 (j) (2). I f the reasoning o f the Respondent did not rise to the level o f good cause then the

Respondent was without authority to remove M r . Cluck as Relator's counsel. Stotts V. Wisser, 894 S.W.2d 366 (Tex. C r i m . App. 1995). Yet i f the Respondent's reasoning does constitute good cause then the relief o f mandamus is not available. Texas Dept. of Corrections v. Dalehite, supra.

The Respondent i n this case had before it a clear statement o f fact from M r . Cluck that he would not be able to perform his duties to the standards required by law unless the Respondent approved his request for funds. W i t h this, the Respondent had to choose one o f two conclusions. Either M r . Cluck was knowingly making a false statement o f fact to the Respondent i n order to coerce funds from the Respondent, an action which would be i n violation o f Rule 303 (a) (1) o f the Rules o f Disciplinary Conduct, or M r . Cluck's statement was true. Considering that the Respondent did not take disciplinary action against M r . Cluck for making a false statement to the court, it can be presumed that the Respondent determined that M r . Cluck's statement about being unable to perform his duties to the standards required by law unless the Respondent approved his request for funds was true.

The findings o f the Respondent on the record i n this regard were made not only from the direct statement o f M r . Cluck but also from the fact that none o f the attorneys from the three co-defendants had informed the Respondent o f similar

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excessive needs i n order to perform their jobs (RR Vol. 1 Pages 12 - 13) and from the Respondent's o w n personal experiences i n representing criminal clients i n this jurisdiction (RR Vol. 1 Page 13) and from what the Respondent then knew o f the facts of the case (RR Vol. 1 Page 13). Based on these findings the Respondent did in fact act under the authority of Art. 26.04 (j) (2) i n removing M r . Cluck for good cause shown on the record for the protection of the rights of the Relator and as such the relief o f Mandamus is not available under these circumstances.

Summary Of The Argument on Response to i s s u e No. 2

2,a, T h e R e a l Party in Interest neither joins nor opposes Issue No. 2.

N o argument is presented i n favor or i n opposition of Issue N o . 2.

Argument On R e s p o n s e to issue No. 2 N o argument is presented i n favor or i n opposition o f Issue N o . 2. I n as much as this Court has entered an order temporarily staying the proceedings pending resoludon o f this complaint, the Real Party i n Interest believes that a W r i t o f Prohibition is duplicitous, unnecessary, and moot.

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Prayer For Relief Wherefore, Real Party i n Interest, Wiley B. "Sonny" McAfee, District Attorney, prays the Court deny the relief requested by Relator and set aside the Court's order staying further proceedings i n the underlying cause.

Respectfully submitted,

OFFICE O F D I S T R I C T A T T O R N E Y 33^° and 424^^ J U D I C I A L D I S T R I C T S Wiley B. McAfee, District Attorney P. O. Box 725

Llano, Texas 78643

Telephone Telecopier (325) 247-5755 (325) 247-5274

Assistant District Attorney State Bar N o . 03353500

g.bunyard@co.llano.tx.us

A T T O R N E Y F O R REAL PARTY I N I N T E R E S T W I L E Y B. " S O N N Y " McAFEE

CERTIFICATE OF WORD C O U N T

This is to certify that the pertinent portion o f this brief contains 1,582 words printed i n Aldine401 B T 14 font as determined by the WordPerfect X 7 © word count tool.

Assistant District Attorney

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CERTIFICATE OF SERVICE

This is to certify that a true copy o f the above and foregoing instrument, together v^ith this proof o f service hereof, has been forwarded by EServe and by email on the 3rd day o f September 2015, to M r . Tracy D . Cluck, Attorney for Relator, at tracy@tracyclucklaw.com, and by EServe .

u a r y ^ . Bunyard

Assistant District Attorney