Smiley, Rodney Elnesto

Opinion

WR-31,454-04

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 6/29/2015 2:07:05 PM Accepted 6/29/2015 5:30:36 PM

Nos. WR-31,454-03 & WR-31,454-04 ABEL ACOSTA

CLERK

______________________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

______________________________

EX PARTE RODNEY ELNESTO SMILEY, Applicant.

______________________________

On Application for a Writ of Habeas Corpus

Cause No. C-213-010293-1011284-B In the 213th District Court from Tarrant County

Cause No. W94-02594-U(A)

In the 291st District Court from Dallas County

______________________________

BRIEF FOR THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE

______________________________

KEN PAXTON *JOSEPH P. CORCORAN Attorney General of Texas Assistant Attorney General Supervising Attorney

CHARLES E. ROY for Non-Capital Appeals First Assistant Attorney General Criminal Appeals Division State Bar No. 00793549

ADRIENNE McFARLAND Joseph.Corcoran@TexasAttorneyGeneral.gov Deputy Attorney General for Criminal Justice *Lead Appellate Counsel P. O. Box 12548, Capitol Station EDWARD L. MARSHALL Austin, Texas 78711 Chief, Criminal Appeals Division Telephone: (512) 936-1400 Facsimile: (512) 936-1280

_____________________________

ATTORNEYS FOR THE

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

June 29, 2015

IDENTITY OF PARTIES AND COUNSEL

To assist this Honorable Court in determining disqualification and

recusal, the Texas Department of Criminal Justice certifies the following

is a complete list of the parties and their attorneys in accordance with

Texas Rule of Appellate Procedure 38.1(a).

1. Applicant RODNEY ELNESTO SMILEY TDCJ-CID No. 693698

2. Counsel for Applicant KENNETH NASH State Counsel for Offenders P.O. Box 4005 Hunstville, Texas 77342

3. Counsel for the State ANDREA JACOBS Assistant Criminal District Attorney 401 West Belknap Fort Worth, Texas 76196-0201

4. Counsel for the Texas Department of Criminal Justice JOSEPH P. CORCORAN Assistant Attorney General Texas Bar Number 00793549 P. O. Box 12548, Capitol Station Austin, Texas 78711

5. Trial Court Judge JUDGE LOUIS STURNS (State habeas proceeding)

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TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ............................................. ii

TABLE OF CONTENTS .........................................................................iii

INDEX OF AUTHORITIES ..................................................................... v

STATEMENT OF THE CASE ................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ................................. 5

STATEMENT OF THE ISSUES .............................................................. 5

SUMMARY OF THE ARGUMENTS ....................................................... 7

ARGUMENT .......................................................................................... 11

I. Since Applicant Was Thrice Reviewed and Denied Release to DMS for His DMS-Eligible Offense, There Is Nothing to Remediate; the Issue is Moot ......................................................... 11

II. In the Alternative, Because the Initial DMS Vote Was Timely, Applicant’s Rights Could Not Have Been Violated ....................... 13

A. Both TDCJ and the Board have independent legal authority to interpret Texas statutes related to their core, legislatively-created functions, including the interpretation of laws to determine how to calculate sentences and to institute parole review procedures ................................................................. 13

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TABLE OF CONTENTS, Continued

B. Applicant’s assumption that the initial DMS vote was untimely, exposes an interpretative tension within the statutory provisions creating the DMS procedure, and creates a cascade of potential absurdities. ............................................................................ 15

C. Applicant’s legal rights could not have been violated with respect to his DMS sentence, because the Legislature limited the force and effect of good- time to only his conviction for theft—at least while he was serving his controlling, concurrent sentence for theft................................................................... 28

III. Because Applicant’s Theft Offense Ceased to Be the Controlling Sentence As of the Moment He Became Presumptively Eligible for MS Release Thereto, Applicant’s Rights Could Not Have Been Violated .......................................... 35

PRAYER FOR RELIEF .......................................................................... 40

CERTIFICATE OF SERVICE ................................................................ 42

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF APPELLATE PROCEDURE 9.4 ............................................................ 43

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INDEX OF AUTHORITIES

Cases

Ex parte Bohannan, 350 S.W.3d 116 (Tex. Crim. App. 2011) ................ 12

Ex parte Canada, 754 S.W.2d 660 (Tex. Crim. App. 1988) .................... 24

Ex parte Cowan, 171 S.W.3d 890 (Tex. Crim. App. 2005)...................... 31

Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008) ............. 16, 34

Ex parte Geiken, 28 S.W.3d 553 (Tex. Crim. App. 2000) ......................... 1

Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003) ................... 19, 25

Ex parte Keller, 173 S.W.3d 492 (Tex. Crim. App. 2005)................. 14, 15

Ex parte Mabry, 137 S.W.3d 58 (Tex. Crim. App. 2004) .................... 2, 36

Ex parte Retzlaff, 135 S.W.3d 45 (Tex. Crim. App. 2004) .............. passim

Ex parte Ruthart, 980 S.W.2d 469 (Tex. Crim. App. 1998)........ 17, 28, 33

Ex parte Schroeter, 958 S.W.2d 811 (Tex. Crim. App. 1997) ................. 18

Ex parte Smiley, No. WR-31,454-03 (Tex. Crim. App. Nov. 26, 2014) . 4, 6

Ex parte Thompson, 173 S.W.3d 458 (Tex. Crim. App. 2005) .................. 1

Falkner v. Southwestern Sav. and Loan Ass’n of Houston, 320 S.W.2d

164 (Tex. Civ. App.—Austin 1958)....................................................... 15

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Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640 (Tex. App.—Austin

2004) ..................................................................................................... 14

Morrissey v. Brewer, 408 U.S. 471 (1972) ........................................ 20, 21

Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971

S.W.2d 439 (Tex. 1998)........................................................................... 6

Public Utility Com’n of Texas v. City Public Service Bd. of San Antonio,

53 S.W.3d 310 (Tex. 2001) .................................................................... 13

State v. Public Utility Com’n of Texas, 883 S.W.2d 190 (Tex. 1994) ..... 15

Texas Advocates Supporting Kids with Disabilities v. Texas Educ.

Agency, 112 S.W.3d 234 (Tex. App.—Austin 2003) ............................. 13

Warren v. State, 652 S.W.2d 779 (Tex. Crim. App. 1983) ........................ 6

Statutes

H.B. 1433 Comm. Report (Amended), 74th Leg. (April 11, 1995) .......... 19

Tex. Code Crim. Proc. art. 42.18 § 7 ....................................................... 14

Tex. Code Crim. Proc. art. 42.18 § 8(c) ..................................................... 1

Tex. Gov’t Code § 494.001 ....................................................................... 14

Tex. Gov’t Code § 498.001(5) ................................................................... 30

Tex. Gov’t Code § 498.003(a) ................................................................... 30

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Tex. Gov’t Code § 508.001(5) ............................................................. 16, 17

Tex. Gov’t Code § 508.143(b) ................................................................... 17

Tex. Gov’t Code § 508.147(a) ............................................................. 16, 31

Tex. Gov’t Code § 508.147(b) ....................................................... 17, 31, 37

Tex. Gov’t Code § 508.149 ....................................................................... 26

Tex. Gov’t Code § 508.149(b) ..................................................................... 2

Tex. Gov’t Code § 508.185 ....................................................................... 22

Tex. Gov’t Code § 508.186 ....................................................................... 22

Tex. Gov’t Code § 508.188 ....................................................................... 22

Tex. Gov’t Code § 508.190 ....................................................................... 22

Tex. Gov’t Code § 508.283(c) ................................................................... 25

Tex. Gov’t Code §§ 508.181–.192............................................................. 37

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STATEMENT OF THE CASE

In 1994, Applicant was convicted of theft in Dallas County and

sentenced to twenty-five years’ imprisonment (the “theft conviction”). See

Order at 1, Ex parte Smiley, Nos. WR-31,454-03 & WR-31,454-04 (Tex.

Crim. App. Apr. 29, 2015) (per curiam) (Order). In 2006, while he was on

parole for his theft conviction, Applicant was convicted of injury to a child

in Tarrant County, and sentenced to ten years’ imprisonment to be served

concurrently with the sentence for his theft conviction (the “injury to a

child” conviction). Id. Applicant’s theft conviction is subject to the pre-

1996 mandatory supervision (MS) statute, while his injury to a child

conviction is governed by the “discretionary” mandatory supervision

(DMS) statute in effect on his offense date. Id.; see Tex. Code Crim. Proc.

art. 42.18 § 8(c) (West 1994)1 (demonstrating that Applicant’s theft

conviction is governed by the pre-DMS statute); see also Tex. Gov’t Code

1 In 1997, the Texas Legislature repealed Article 42.18, and recodified its provisions into Section 508.149(b) of the Texas Government Code. See Ex parte Geiken, 28 S.W.3d 553, 555 (Tex. Crim. App. 2000); see also Acts 1997, 75th Leg., ch. 165, § 12.22, eff. Sept. 1, 1997. However, Applicant’s theft conviction is governed by former Article 42.18. See Ex parte Thompson, 173 S.W.3d 458, 459 (Tex. Crim. App. 2005) (the statute in effect when the holding offense is committed determines an inmate’s eligibility for release to MS for that offense).

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§ 508.149(b) (West 2006) (demonstrating that Applicant’s injury to a child

conviction is governed by the DMS statute).

As relevant here, the Texas Department of Criminal Justice (TDCJ)

calculated the DMS-notice date for Applicant’s injury to a child conviction

based upon the presumptive release date for Applicant’s then controlling

eligible offense, 2 which at that time was Applicant’s twenty-five year

theft conviction. Order at 1; 1SCHR at 10.3 Hence, Applicant was

provided DMS notice for his injury to a child conviction on January 29,

2013—premised upon the date Applicant would be presumptively eligible

for release to MS for his theft conviction, on May 12, 2013. 1SCHR at 10.

The Board of Pardons and Paroles (Board) voted to deny Applicant DMS

2 A “controlling” offense in this context is defined as follows: “When an inmate has multiple convictions, he will have one conviction which governs his release date, either because it is the most recent, contains the longest sentence, or has the least amount of time credits. It is the conviction that will keep the prisoner in custody for the greatest amount of time.” Ex parte Mabry, 137 S.W.3d 58, 63 (Tex. Crim. App. 2004) (Keasler, J., concurring).

3 “1SHCR” refers to the “1st Supplemental Clerk’s Record” prepared by the clerk of the 213th District Court for this habeas proceeding; it is also attached as Appendix 1 to this brief. “2SHCR” refers to the “2nd Supplemental Clerk’s Record” prepared by the clerk of the 213th District Court for this habeas proceeding; it is also attached as Appendix 2 to this brief. “3SHCR” refers to the “3rd Supplemental Clerk’s Record” prepared by the clerk of the 213th District Court for this habeas proceeding; it is also attached as Appendix 3 to this brief. “SHCR” refers to the “Clerk’s Record” prepared by the clerk of the 213th District Court for this habeas proceeding; it is also attached as Appendix 4 to this brief.

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release for his injury to a child conviction on April 10, 2013 (the “initial

DMS vote”). Id. The Board then reviewed and denied Applicant release

to DMS on his injury to a child conviction two additional times, with a

fourth DMS review date scheduled for December of 2015. Id.

Applicant challenged the timing of the initial DMS vote in this

habeas application, filed pursuant to Article 11.07 of the Code of Criminal

Procedure. SHCR at 2–24. To this end, he contends, in part, that he was

entitled to a DMS vote for his injury to a child conviction sometime in

2010, when the aggregate good time and calendar time for that sentence

equaled its ten-year term. SHCR at 8. As a result, he suggests that his

due process rights under both the state and federal constitutions were

violated because the Board waited more than two years to review and

deny him for release to DMS for his injury to a child conviction. SHCR

21–23.

The state habeas trial court entered proposed findings of fact and

conclusions of law recommending that Applicant’s application be denied

as moot because the Board had already voted three times to deny him

DMS. SHCR at 60–65. After receiving the trial court’s recommendation,

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the Court placed the application in abeyance and ordered the trial court

to obtain affidavits from TDCJ to resolve several factual issues: to enter

additional findings of fact and conclusions of law as to when Applicant

was eligible for release to DMS for his injury to a child conviction, and to

determine when the Board voted to deny release. Order at 1–2, Ex parte

Smiley, No. WR-31,454-03 (Tex. Crim. App. Nov. 26, 2014) (per curiam).

Upon remand, the trial court obtained an affidavit from TDCJ, and

again entered proposed findings of fact and conclusions of law

recommending that Applicant’s application be denied. 3SHCR at 2–9.

Upon receipt of those recommendations, the Court filed and set this

application for submission to resolve the following two issues:

(1) to determine the remedy, if any, for the failure to vote on Applicant’s original discretionary mandatory release date in a timely fashion; and

(2) to determine the legality of TDCJ’s policy of not “releasing” a prisoner to mandatory supervision on one concurrent sentence until the prisoner is “eligible for release” on all concurrent sentences.

Order at 2. The Court also invited the Office of General Counsel of TDCJ

to submit a brief to assist the Court in resolving the two issues. Id.

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STATEMENT REGARDING ORAL ARGUMENT

TDCJ respectfully submits that the primary legal questions raised

in this appeal are adequately presented in the briefs and record, and that

the decisional process on this point would not be significantly aided by

oral argument.

STATEMENT OF THE ISSUES

Applicant contends that the decision to link his initial DMS vote—

which occurred in 2013—to the date he was presumptively eligible for

MS release for his then controlling theft conviction, violates his due

process protections under both the federal and state constitutions.

Relatedly, Applicant now suggests that TDCJ’s alleged failure to

physically release him to mandatory supervision for his theft conviction

in 2013, despite the fact that he had not qualified for physical release

under the DMS statute for his injury to a child conviction, was

unconstitutional too.4 And while Applicant suggests the existence of a

4 This claim, i.e., that Applicant should have been physically released to MS for his theft conviction in 2013, was first raised in his brief filed in this Court on June 25, 2015. See Applicant’s Brief at 15–26, Ex parte Smiley, Nos. WR-31,454-03 & WR- 31,454-04 (Tex. Crim. App. June. 25, 2015). In other words, it appears that Applicant

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due process violation in his application, the two issues raised in the Order

appear to frame the issue more broadly, to include the “legality” of

Applicant’s sentence calculation, generally. See Order at 2.

Important too, TDCJ notes with some concern that the second issue

identified in the Order might be construed by Applicant as extending to

hypothetical facts not presently before the Court. In other words, to the

extent that the second issue invites consideration of the manner and

timing in which TDCJ releases prisoners to mandatory supervision in all

cases—and across the full spectrum of possible sentence combinations—

such an opinion would be advisory and improper.5 For this reason, TDCJ

has limited its legal analysis to the calculation of Applicant’s particular

sentence combination. This is not to say that the parties should not refer

did not advance this claim as part of his original habeas application. See SHCR at 7– 10, 21–23. In an abundance of caution, however, and because this new claim might fairly be construed as being part of the second issue designated by the Court in its Order, TDCJ will address it below.

5 This Court “do[es] not write advisory opinions.” Warren v. State, 652 S.W.2d 779 (Tex. Crim. App. 1983). And as the Texas Supreme Court has explained in greater detail: “The courts of this state are not empowered to give advisory opinions. This prohibition extends to cases that are not yet ripe. A case is not ripe when its resolution depends on contingent or hypothetical facts, or upon events that have not yet come to pass.” Patterson v. Planned Parenthood of Houston & Se. Texas, Inc., 971 S.W.2d 439, 443 (Tex. 1998) (internal citations omitted).

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to hypothetical sentence combinations to explore the full meaning of the

relevant statutory text, but only that Applicant should not be permitted

to use his circumstances to dictate TDCJ policies for unrelated inmates.

SUMMARY OF THE ARGUMENT

In his application Applicant faults the Board for conducting the

initial DMS-vote in 2013, but he fails to describe how he thinks a

favorable 2010 DMS-vote would have affected his continuing physical

incarceration in the Correctional Institutions Division of TDCJ (TDCJ-

CID). 6 Presumably, Applicant does not contend that his hypothetical

2010-“release” to DMS for his then non-controlling injury to a child

offense would have required TDCJ-CID to physically release him for his

then controlling theft offense. In other words, surely Applicant does not

mean to suggest that his physical custody in TDCJ-CID is controlled by

his shortest concurrent sentence. Such an approach would do so much

violence to the statutory framework governing these questions that there

6 Applicant’s argument is necessarily premised on the possibility that he might have received a favorable DMS vote in 2010. Absent the possibility of a favorable vote, there is no liberty interest to protect.

8

is little reason to address it further. 7 Hence, TDCJ will assume Applicant

contends that—upon a (hypothetical) favorable DMS vote in 2010—he

would have remained in TDCJ-CID’s physical custody until he was

physically released for the theft offense.

The first and second questions posed by the Court are intertwined.

The first assumes Applicant’s minor premise—that the Board’s initial

DMS vote was untimely—then asks whether a remedy exists given that

Applicant was subsequently reviewed and denied release to DMS three

times. Since Applicant has already received a DMS vote, there is nothing

to remediate; the question appears to be moot. In the alternative, the

answer to the second question if resolved in favor of TDCJ and the Board,

would also resolve the first, and establish that the initial DMS vote was

not untimely. And if the Court agrees that neither TDCJ nor the Board

violated the relevant statutory text when determining the timing for the

initial DMS vote, there could be no due process violation—whatever due

7 In such a system, an inmate who received a life sentence in 1990, and who was then paroled in 2005, could intentionally commit a minor DMS-eligible offense, and effectively nullify TDCJ-CID’s authority to maintain legal custody for the life sentence at the moment the inmate received a favorable DMS-vote for the new concurrent sentence.

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process protections attach to Applicant’s initial DMS vote, they

necessarily flow from the text of the controlling statutes.

Again, Applicant necessarily assumes that he could have obtained

the benefit of DMS-“release” for his non-controlling injury to a child

sentence in 2010, while continuing to remain in TDCJ-CID’s physical

custody for his theft offense. TDCJ will first analyze the legal and

statutory implications of this assumption and demonstrate that it creates

a serious conflict with both the relevant statutory framework and the

opinions of this Court. Applicant’s assumption creates a cascade of

interpretive absurdities that are heightened here because—as is often

the case when analyzing the statutes controlling MS, DMS, and parole—

the provisions rarely make any reference to the dictates of the others.

Moreover, Applicant’s contention that he should have been

physically released to MS for his theft conviction in 2013, is also

erroneous because it assumes that his controlling concurrent sentence is

static. It ignores the statutory text demonstrating that Applicant’s injury

to a child offense became the controlling sentence when he became

presumptively eligible to MS for his theft conviction. As TDCJ will

10

establish below, where an inmate has multiple concurrent, but dissimilar

sentences, only one can be controlling at any given time, and the

controlling sentence may change during that inmate’s incarceration. 8

In complying with their constitutional and statutory authority to

interpret the law on these questions, TDCJ and the Board attempted to

harmonize the relevant provisions as much as possible, so as to give full

effect to them all. To this end, TDCJ advances a statutory interpretation

that it believes resolves the absurdities created by Applicant’s suggested

approach, and which supports both its argument that Applicant’s initial

DMS vote was timely, and that Applicant is not entitled to MS release

for his theft conviction until he receives a favorable DMS vote on his

injury to a child conviction. And compellingly, TDCJ’s suggested

approach already finds support in this Court’s jurisprudence.

Finally, TDCJ unreservedly acknowledges the difficulty in

performing textual analysis on this particular statutory framework. And

while TDCJ has attempted to harmonize the complex statutory

8 When referring to “controlling sentence” in this context, TDCJ means the longest, remaining concurrent sentence for calculating MS or DMS eligibility— measured at a particular point in time.

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commands regarding Applicant’s particular sentence combination—in

good faith—TDCJ looks to the Court for guidance moving forward.

ARGUMENT

I. Since Applicant Was Thrice Reviewed and Denied Release to DMS for His DMS-Eligible Offense, There Is Nothing to Remediate; the Issue is Moot.

This Court previously held with reference to the DMS statute at

issue here that “an eligible inmate has a vested, statutory entitlement to

release on mandatory supervision, but it is a defeasible interest—one

that may be defeated, but only if the parole panel makes these findings

in its review.” Ex parte Retzlaff, 135 S.W.3d 45, 48–49 (Tex. Crim. App.

2004). But the Court went further when it held that the remedy for the

failure to comply with the procedural obligations created by the DMS

statute is to conduct a procedurally proper DMS hearing. Id. at 51

(“Because the mandatory supervision statute requires release unless a

parole panel makes specific findings, we find that [Applicant’s] . . .

continued incarceration is illegal and unconstitutional unless, within

sixty days, a parole panel has given him timely notice of a review to be

held before the fifty-ninth day and has provided him at least thirty days

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to submit whatever explanatory material he wishes the panel to

consider.”).

This has already happened. 1SHCR at 10. Because Applicant has

thrice been reviewed and denied release to DMS, he has already received

his remedy for the purported delay in conducting the initial DMS vote,

and the issue before the Court appears to be moot. TDCJ acknowledges

that Applicant’s claim might nevertheless be justiciable under the

“capable of repetition, yet evading review” doctrine. E.g., Ex parte

Bohannan, 350 S.W.3d 116, 119–20 (Tex. Crim. App. 2011) (analyzing

this exception to the mootness doctrine). However, Applicant’s claim may

fail to meet this exception for the same reason that the Court refused to

extend the exception in Bohannan: because there is no reason to believe

Applicant would again be subjected to the procedure at issue here.9 See

id.

9 While TDCJ would undoubtedly benefit from the Court’s guidance on these questions, the undersigned, as an officer of the Court, is duty-bound to raise the possibility of mootness.

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II. In the Alternative, Because the Initial DMS Vote Was Timely, Applicant’s Rights Could Not Have Been Violated.

Applicant’s argument regarding the timing of the DMS vote is

premised upon his legal and factual assumption that the initial

determination to deny his release to DMS for his injury to a child

conviction should have occurred in 2010. As TDCJ will establish below,

however, this assumption is inaccurate.

A. Both TDCJ and the Board have independent legal authority to interpret Texas statutes related to their core, legislatively- created functions, including the interpretation of laws to determine how to calculate sentences and to institute parole review procedures.

As a general rule, when the Legislature expressly confers a power

on a state agency, it also impliedly grants whatever powers are

reasonably necessary to fulfill its express functions or duties. Texas

Advocates Supporting Kids with Disabilities v. Texas Educ. Agency, 112

S.W.3d 234, 238 (Tex. App.—Austin 2003, no pet. hist.); Public Utility

Com’n of Texas v. City Public Service Bd. of San Antonio, 53 S.W.3d 310

(Tex. 2001), reh’g of cause overruled, (Sept. 20, 2001). The only

interpretative requirement placed on an administrative agency when

exercising the powers and authority granted by the Legislature, is that

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the agency’s interpretations must be consistent with the constitution and

state statutes. Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640 (Tex.

App.—Austin 2004, pet. dism’d w.o.j.); see also, Ex parte Keller, 173

S.W.3d 492, 496 n.14 (Tex. Crim. App. 2005).

In the present circumstance, the Legislature conferred upon the

Board the power to determine the application and function of mandatory

supervision statutes, and necessarily the power to interpret those

statutes. See Tex. Code Crim. Proc. art. 42.18 § 7 (West 1996), repealed

by Acts 1997 75th Leg., ch. 165 § 12.22, effective September 1, 1997;

codified as Government Code Chapter 508 by Acts 1997 75th Leg., ch.

165 § 12.01, effective September 1, 1997; Tex. Gov’t Code §§ 508.001,

508.0441(c)(1). So too, the Legislature necessarily conferred upon TDCJ

the power to calculate prison sentences, including the authority to

determine when and whether both a sentence and the related term of

incarceration, begins and ends. E.g., Tex. Gov’t Code § 494.001 (“The

mission of the institutional division is . . . to effectively manage or

administer correctional facilities based on constitutional and statutory

standards.”).

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So, too, the construction given to a statute by the administrative

agency charged with its enforcement is entitled to great weight by the

state courts faced with construing the same statute, especially if an

agency’s interpretation of an ambiguous statute is consistent and

uniform. State v. Public Utility Com’n of Texas, 883 S.W.2d 190, 196 (Tex.

1994); Falkner v. Southwestern Sav. and Loan Ass’n of Houston, 320

S.W.2d 164, 171 (Tex. Civ. App.—Austin 1958), judgment aff’d in part,

rev’d in part on other grounds, 160 Tex. 417, 331 S.W.2d 917 (1960); see

Ex parte Keller, 173 S.W.3d at 496 n.14.

Thus, the Court’s constitutional authority to review the pre-

existing and presumptively valid, statutory interpretations made by

TDCJ and the Board, as relevant here, should not be conflated with their

respective and independent authority to interpret those statutes,

including this Court’s decisions related thereto.

B. Applicant’s assumption that the initial DMS vote was untimely, exposes an interpretative tension within the statutory provisions creating the DMS procedure, and creates a cascade of potential absurdities.

Before analyzing the manner in which TDCJ affirmatively

determines the initial DMS-review date for offenders like Applicant, it is

16

necessary to survey the statutory framework upon which Applicant’s

competing approach is based. As TDCJ will establish, Applicant’s

interpretive approach leads to “odd results,” which when harmonized

with the relevant text as a whole, supports the sentence methodology

used by TDCJ. See Ex parte Forward, 258 S.W.3d 151, 155 (Tex. Crim.

App. 2008) (“The statutory provisions can be harmonized to avoid such

odd results.”).

As it relates to Applicant’s DMS-eligible sentence, the Government

Code defines “mandatory supervision” as:

(5) “Mandatory supervision” means the release of an eligible inmate sentenced to the institutional division so that the inmate may serve the remainder of the inmate’s sentence not on parole but under the supervision of the pardons and paroles division.

Tex. Gov’t Code § 508.001(5) (West 2006) (emphasis added). Obviously,

the statute governing release to “mandatory” supervision uses

mandatory language. See Tex. Gov’t Code § 508.147(a) (West 2006)

(“Except as provided by Section 508.149, a parole panel shall order the

release of an inmate who is not on parole to mandatory supervision when

the actual calendar time the inmate has served plus any accrued good

17

conduct time equals the term to which the inmate was sentenced.”)

(emphasis added); see also Ex parte Ruthart, 980 S.W.2d 469, 472 (Tex.

Crim. App. 1998) (noting that the precursor to § 508.147(a) is

mandatory).

And under the relevant DMS statutes, the Board’s vote to release

an inmate to DMS requires TDCJ-CID to transfer that inmate’s factual

and legal custody to the “state,” see Tex. Gov’t Code § 508.143(b) (West

2006), and particularly to the direct control of the Pardons and Parole

Division of TDCJ (TDCJ-PD), see Tex. Gov’t Code § 508.001(5), and under

the ultimate control of the Board to revoke or continue parole. See Tex.

Gov’t Code § 508.147(b) (“An inmate released to mandatory supervision

is considered to be released on parole.”). Plainly then, the Legislature’s

intent appears to be that an inmate’s “release” to DMS—like his release

to parole—necessarily entails his release from TDCJ-CID’s physical

custody to the control of an entity outside the prison walls.

Indeed, this Court has previously determined that “release” to DMS

cannot occur unless two conditions are met: (1) the inmate cannot have

any “other convictions or warrants authorizing their continued

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confinement,” and (2) “a parole panel has not determined such a release

would endanger the public with the offense having been committed on or

after September 1, 1996.” Ex parte Schroeter, 958 S.W.2d 811, 813 n.4

(Tex. Crim. App. 1997). The Court’s rationale in Schroeter gives strong

support to the common-sense notion under this statutory scheme that

“release” means physical release. See id. Moreover, because Applicant did

not meet both of the requirements in Schroeter, he could not have been

released in 2010. Id.

And the requirement that an inmate’s “release” to mandatory

supervision (or parole) means his physical release from TDCJ-CID’s

custody is implicit throughout both this Court’s opinions, and the

statutory framework mandating the terms of such release. For instance,

in Retzlaff, the Court reasoned that the purpose of the DMS statute was

“to permit a parole panel to exercise some discretion in deciding whether

a person who was eligible for release on mandatory supervision should,

nonetheless, be kept in custody.” 135 S.W.3d at 48 (emphasis added). The

term “in custody” as used in Retzlaff suggests that MS release refers to a

break in an inmate’s continued confinement within TDCJ-CID. See id. In

19

other words, Retzlaff suggests that the Board’s decision to grant DMS

entails a break in the inmate’s continued incarceration for the sentence

upon which DMS was granted. In arriving at this conclusion, the Court

cited the legislative history for the DMS statute. Id. n.8 (citing H.B. 1433

Comm. Report (Amended), 74th Leg. (April 11, 1995) (“[t]he purpose of

this Act is to give the Pardons and Parole Board a lever to close the

‘automatic open door’ of mandatory supervision. . . . This legislation

allows for discretionary release by the Pardons and Parole Board for all

inmates, while still providing for the original intent of the legislation,

supervised release, in most instances”)). When the Legislature referred

to the “automatic open door” under the previous non-DMS scheme, surely

it did not envision that an inmate’s “release” to DMS would result in his

continued incarceration in TDCJ-CID, in the same cell, pursuant to a

different sentence. See id.

And in Ex parte Hale, the Court also distinguished between

conditional releases resulting from parole and MS on the one hand, with

continued incarceration on the other. 117 S.W.3d 866, 872 (Tex. Crim.

App. 2003) (“Conditional releases are highly desired alternatives to

20

incarceration. For the overwhelming majority of defendants, release is

not the penalty; incarceration is. Our files do not bulge with petitions

from prisoners complaining of being punished by being released, and

demanding to be imprisoned.”). Much of the Court’s jurisprudence in this

regard supports this distinction.

More troubling, Applicant’s approach would eviscerate the requisite

constitutional premise upon which this Article 11.07 challenge is based.

If he remained in TDCJ-CID custody after his hypothetical DMS release

in 2010 for his injury to a child conviction, how then would he possess a

liberty interest sufficient to raise the present challenge? As the Supreme

Court explained, absent a physical release, there is nothing to protect:

Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.

Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (emphasis added).

Morrissey is premised on the existence of a conditional liberty interest

created by an inmate’s actual physical release to the “street.” See id. It is

21

the parolee’s change in physical custody, e.g., when his conditional liberty

in continued parole is terminated in favor of his return to prison, which

implicates the Due Process Clause. Id. Absent the possibility of obtaining

the qualified liberty interest identified in Morrissey, there would be no

due process right to protect. Remarkably, Applicant’s statutory

construction removes the minimum constitutional requirement from the

DMS statute for inmates in his circumstance. In other words, if Applicant

obtained a favorable DMS vote in 2010, but—pursuant to his view of

Texas law—remained in TDCJ-CID’s physical custody for his injury to a

child conviction, he would not obtain a conditional liberty interest

sufficient to invoke the minimum procedural due process protections

attendant to the decisions related to the custody he now challenges. See

id. If Applicant’s statutory interpretation was correct, and if he was

permitted to serve his post-DMS-release for his injury to a child

conviction in TDCJ-CID’s physical custody, then this habeas application

would be non-cognizable, because there would be no conditional liberty

interest to protect. Hence, if Applicant is correct, the Court should

dismiss this claim as non-cognizable.

22

The statutory framework that would have governed the terms of

Applicant’s hypothetical “release” to DMS in 2010, also suggest that the

Legislature intended DMS-release to mean the physical release from

TDCJ-CID’s custody. For example, a parole panel shall require as a

condition of mandatory supervision, all of the following:

1. For those releasees guilty of stalking offenses, that the releasee not go near the victim, the victim’s residence, place of employment, or business, nor go near a school or day-care facility where a dependent of the victim is in attendance. Tex. Gov’t Code § 508.190.

2. Any releasee who attended an in-prison substance abuse program “immediately before release,” must continue to attend a “drug or alcohol abuse continuum of care treatment program” after physical release, developed by the Texas Commission on Alcohol and Drug Abuse. Tex. Gov’t Code § 508.185.

3. A releasee for whom a court has made an affirmative finding that the offense was committed because of bias or prejudice, must “perform not less than 300 hours of community service at a project designated by the parole panel that primarily serves the person or group that was the target of the releasee.” Tex. Gov’t Code § 508.188.

4. All releasees who are required to register as a sex offender actually register. Tex. Gov’t Code § 508.186.

23

All of these mandatory conditions assume that the releasee is no longer

in TDCJ-CID’s physical custody. An assumption hard to reconcile with

Applicant’s contrary view.

Moreover, Applicant’s contention that the Board was required to

perform his initial DMS vote in 2010 leads to an array of other bizarre

and absurd outcomes. Again, if we assume the Board granted Applicant

DMS-“release” in 2010 (for his injury to a child conviction), this legal

determination would require TDCJ-CID to transfer custody of the inmate

to a separate entity outside the walls of the prison system, e.g., to TDCJ-

PD—despite the fact that the inmate was concurrently serving another,

longer, prison sentence in CID’s custody. And again, the Legislature

likely intended that DMS-release result in the inmate’s immediate

physical release from the custody of TDCJ-CID. But even assuming that

the Legislature’s intent on this question was non-determinate, in order

to achieve his result, and given there is no statutory framework

authorizing hybrid custody within TDCJ-CID, Applicant necessarily asks

the Court to order TDCJ-PD and the Board to assume legal custody and

24

control of Applicant for his DMS-sentence, while he remains in TDCJ-

CID for another sentence. 10

And his position creates another set of interpretive problems. If

Applicant had been “released” to DMS in 2010 (while still in TDCJ-CID’s

physical custody for his theft offense), how would he continue to earn flat-

time toward his DMS sentence? If Applicant contends that he is entitled

to earn flat-time then he is necessarily asking this Court to order TDCJ-

CID to award flat-time toward the DMS sentence, despite the fact that

Applicant is no longer serving that sentence in TDCJ-CID’s legal custody;

and despite the fact that no other entity has restricted his liberty thereto

by means of a detainer or blue-warrant. See Ex parte Canada, 754 S.W.2d

660, 668 (Tex. Crim. App. 1988) (“[A]pplicant is entitled to receive credit

off his sentence for the seventy-four calendar days in which he was

confined prior to the Board’s withdrawal of the pre-revocation warrant

and the initial continuation of his parole.”). Applicant cites no textual

10 This concern outlines the problem with Applicant’s poorly conceived approach. While there may be nothing in the statutory framework explicitly preventing such hybrid custody within TDCJ-CID, the potential cost to TDCJ-PD and the Board to extend and maintain legal custody and control of such “releasees” strongly suggests that this requirement should come from the Legislature, and not the Court.

25

support for this outcome, and absent a statutory basis upon which to earn

flat-time, his conditional release in 2010 would have prevented TDCJ

from giving him credit toward his sentence. Hale, 117 S.W.3d at 871 (“In

each form of conditional release (probation, parole, and mandatory

supervision) no credit against a sentence is given for the time spent on

conditional release.”).

Or perhaps Applicant means to suggest that inmates in his position

should earn street-time toward their DMS-sentences, despite the fact

that they remain in TDCJ-CID custody for a different sentence. See Tex.

Gov’t Code § 508.283(c) (outlining the circumstances in which a parolee

is entitled to street-time credit). Indeed, if Applicant intends this—and

given the ephemeral and revocable nature of street-time credit—

Applicant is putting all similarly situated inmates in a less advantageous

position than if the 2010 DMS vote had not occurred at all. See id.

In other words, Applicant’s poorly conceived position may make it

impossible for some inmates to discharge, day-for-day, their non-

controlling DMS-sentences, after DMS-“release,” despite the fact that

they remain in prison, and would unquestionably have received flat-time

26

credit if the 2010 DMS-vote had not occurred. Applicant fails even to

acknowledge these serious interpretive problems, let alone to suggest a

way to solve them.

Finally, Applicant’s approach ignores the text of Government Code

Section 508.149(b), which justifies the decision to link Applicant’s DMS-

vote to the presumptive date for Applicant’s MS release for his theft

conviction. Section 508.149 reads, in relevant part:

(b) An inmate may not be released to mandatory supervision if a parole panel determines that:

(1) the inmate’s accrued good conduct time is not an accurate reflection of the inmate’s potential for rehabilitation; and

(2) the inmate’s release would endanger the public.

Tex. Gov’t Code § 508.149 (West 2006). Applicant’s situation

demonstrates the problem with his interpretation. If the Board were

required to perform Applicant’s initial DMS-vote in 2010, more than two

years before Applicant could have been physically released with respect

to his controlling theft conviction, how then could the Board accurately

determine whether his release to DMS “would endanger the public”?

27

As this Court held in an analogous circumstance, to ensure the

accuracy of the Board’s determination to grant or deny DMS release, that

vote must be premised upon timely, up-to-date information regarding the

inmate’s propensity to be a danger to the public. Retzlaff, 135 S.W.3d at

49 (“The two statutory findings that justify non-release are predictive

judgments based upon discrete factual conclusions and subjective

appraisals. Necessarily, then, they are highly contingent upon accurate,

up-to-date information and explanation.”). Like any inmate, Applicant’s

conduct in prison during the intervening two years (between a

hypothetical and favorable 2010 DMS vote, and his ultimate physical

release), could establish that his release would endanger the public.

Applicant’s interpretation could reduce the accuracy of the public safety

inquiry, surely contrary to legislative intent. By requiring a Board vote

in 2010, Applicant would have this Court nullify the textual command

and statutory purpose of § 508.149(b).

In sum, because his “release” to DMS for his injury to a child offense

was impossible—at least for so long as his theft offense was controlling—

28

TDCJ will look to the remaining statutory text as a whole in an effort to

resolve the apparent absurdities.

C. Applicant’s legal rights could not have been violated with respect to his DMS sentence, because the Legislature limited the force and effect of good-time to only his conviction for theft—at least while he was serving his controlling, concurrent sentence for theft.

In circumstances like this, when the text of a statute could lead to

absurd results, the Court has provided those agencies tasked with

enforcing the Legislative mandates with guidance as to how to proceed:

When we interpret statutes, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation. We focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment. Thus, if the meaning of the statutory text should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning. The exception is when application of a statute’s plain language would lead to absurd consequences that the legislature could not possibly have intended; in such a case, we refer to extratextual factors to determine legislative intent.

Ruthart, 980 S.W.2d at 471 (internal citations omitted). As already

established, Applicant’s reading of the relevant DMS statutes necessarily

means that the Board’s initial DMS vote was untimely. But as also

29

established, Applicant’s interpretation leads to several unworkable,

ambiguous, and absurd results.

To this end, TDCJ directs the Court to other provisions within the

relevant statutory framework, which support the manner in which

Applicant’s sentences were calculated here, and which suggest that

Applicant’s initial DMS vote was timely. By harmonizing the statutory

provisions suggesting the necessity of an earlier DMS vote with the

Legislature’s other directives, the methodology used by TDCJ finds

support.

As relevant here, Chapter 498 of the Government Code reads:

(2) “Term” means:

(A) the term of confinement in the institutional division stated in the sentence of the convicting court, if the inmate is serving a sentence for a single offense;

(B) the term of confinement established by Section 508.150, if the inmate is serving two or more sentences consecutively; or

(C) the longest term of confinement in the institutional division stated in the sentence of the convicting court, if the inmate is serving two or more concurrent sentences.

30

Tex. Gov’t Code § 498.001(5) (emphasis added). Plainly then, for purposes

of Chapter 498, in 2010 Applicant’s “term of confinement” referred to his

theft conviction, which was Applicant’s longest, controlling term. See id.;

see also supra, note 2. This definition is important because, later in the

same chapter, the Legislature narrows the force and effect of good-

conduct time to the availability of DMS with specific reference to Chapter

508. Specifically, Chapter 498 states:

Good conduct time applies only to eligibility for parole or mandatory supervision as provided by Section 508.145 or 508.147 and does not otherwise affect an inmate’s term.

Tex. Gov’t Code § 498.003(a) (West 2006) (emphasis added). Again, this

provision is important because it extends—by explicit reference—the

limitations that Chapter 498 places on the relevance of good-time and the

availability of DMS to the “mandatory” command found in § 508.147(a).

See id. By its literal terms then, § 498.003(a) limits the availability of

DMS as derived from § 508.147(a), as follows:

Except as provided by Section 508.149, a parole panel shall order the release of an inmate who is not on parole to mandatory supervision when the actual calendar time the inmate has served plus any accrued good conduct time equals the term to which the inmate was sentenced.

31

Tex. Gov’t Code § 508.147(a) (West 2006) (emphasis added). It bears

repeating: the Legislature explicitly limited the effect of good time, and

specifically its capacity to contribute to the calculation of mandatory

supervised release, to only “the term to which the inmate was sentenced.”

See id. And given that the definition of “term” in Chapter 498 explicitly

extends to the mandatory directive in § 508.147(a), by means of §

498.003(a), inmates like Applicant are legally entitled to DMS for only

their “longest term of confinement,” at least when serving two or more

dissimilar sentences, concurrently.

Indeed, the Court has confirmed TDCJ’s interpretation in a similar

circumstance—unanimously—at least in dicta:

Arguably, the “plain” language of Section 508.147(a)

applies only to an inmate who has been sentenced to a single term and does not apply to an inmate serving multiple sentences. This interpretation would also resolve any conflict between former Article 42.18, § 8(c), and former Article 42.18, § 8(d). This interpretation of Section 508.147(a) would also dispose of applicant’s claim that his eligibility for mandatory supervision for the offense in cause number 0243176D caused the sentence for that offense to cease to operate.

Ex parte Cowan, 171 S.W.3d 890, 894 n.10 (Tex. Crim. App. 2005)

(emphasis added) (internal citations omitted). Although Cowan involved

32

the analysis of consecutive sentences under Government Code §

498.001(5)(B), and not to concurrent sentences under § 498.001(5)(C),

there is no textual reason to treat the two, co-equal subparts differently.

Moreover, Cowan supports TDCJ’s interpretation because the Court

there resolved a similar interpretive dilemma by construing the word

“term” (as utilized in § 508.147(a)) to refer to a single, identifiable,

controlling sentence. The same rationale exists here.

Thus, a fair reading of the relevant text suggests that Applicant’s

legal rights could not have been violated with respect to his DMS

sentence because the Legislature limited the force and effect of good-time

to only his conviction for theft—at least for so long as his theft offense

was his controlling sentence. In other words, until Applicant’s DMS-

eligible offense became the controlling sentence under Government Code

§ 498.001(5)(C)—which coincided with the initial DMS vote in 2013—he

could not have received the benefit of good time toward calculation of his

DMS eligibility date for his injury to a child conviction. Only after his

DMS sentence became controlling (i.e., only after he qualified for

presumptive MS release for his theft offense), did the mandatory

33

calculation under § 508.147(a) become relevant to his DMS eligible

offense. This is precisely what occurred here, see 1SHCR at 10, and is

wholly consistent with the text of the statute.

Finally, TDCJ acknowledges this Court’s decision in Ruthart, in

which the Court explicitly declined to incorporate the definition of “term”

from Chapter 498 to define “maximum term” as used in former Article

42.18, § 8(c). Ruthart, 980 S.W.2d at 472 (“[T]his definition is specifically

limited to the Government Code.”). TDCJ distinguishes Ruthart for three

reasons. First, the Court there was faced with both a different statutory

framework (e.g., the definition of “maximum term” as used in former

Article 42.18), and a distinct set of interpretive tensions related to

consecutive sentences. Second, the Court neither addressed nor rejected

TDCJ’s present contention that a fair reading of Government Code §

498.003(a) extends the definition of “term” beyond Chapter 498. Finally,

the Court implicitly adopted the methodology TDCJ used here when it

defined a “maximum term” for a concurrent sentence like that of

Applicant, in a manner that supports the methodology here. See id. at

473 (“For an inmate serving two or more concurrent sentences, we believe

34

his “maximum term” must be the longest of the concurrent sentences,

because this is the sentence that will keep him incarcerated for the

longest amount of time.”). Hence, Ruthart actually supports the

calculation below, and is arguably outcome determinative here.

In sum, Applicant is entitled to DMS consideration for his injury to

a child conviction, but only after it becomes his controlling sentence. This

approach acknowledges the fact that his “release” to DMS (i.e., to parole)

could never occur unless he was first released from physical custody for

his longest, concurrent and controlling sentence. In other words, when

interpreting these statutory dictates, the Court should distinguish

between “the when of eligibility for release [to DMS] with the whether of

eligibility for release.” Forward, 258 S.W.3d at 151 (emphasis in original).

And as the facts of this case demonstrate, doing so permits TDCJ-CID to

abide by its legal obligation to maintain legal custody and control over

Applicant for his controlling sentence, while also ensuring that Applicant

ultimately receives an up-or-down DMS vote for his injury to a child

conviction—but only after the DMS sentence becomes controlling. It also

avoids the legal absurdity that would result if TDCJ-CID was presented

35

with a certificate of release for Applicant’s DMS-sentence—signifying his

release to parole—but was nevertheless required to maintain Applicant’s

legal and factual custody for his controlling sentence.

Because Applicant could not have received the benefit of good-time

toward calculation of his DMS-eligibility date for his injury to a child

conviction until after that sentence became controlling, he was not

entitled to a DMS vote in 2010. Hence, the initial DMS vote was not

untimely under the statutory framework, and absent a violation under

that framework, there could not have been a due process violation. See

Retzlaff, 135 S.W.3d at 48–49 (demonstrating that an inmate’s

protectable liberty interest in mandatory release is based on the meaning

and applicability of the relevant statute).

III. Because Applicant’s Theft Offense Ceased to Be the Controlling Sentence As of the Moment He Became Presumptively Eligible for MS Release Thereto, Applicant’s Rights Could Not Have Been Violated.

Applicant also suggests that he was entitled to physical release in

May of 2013 under the pre-1996 MS statute for his theft conviction. See

supra, note 4. Hence, according to Applicant, TDCJ violated his due

process rights by failing to physically release him in 2013, and this Court

36

should order such release immediately, despite the fact that he does not

yet qualify for release for his DMS sentence. For the reasons that follow,

Applicant is incorrect.

A controlling offense “is the conviction that will keep the prisoner

in custody for the greatest amount of time.” Mabry, 137 S.W.3d at 63

(Keasler, J., concurring). When applying the definition of controlling

offense for inmates with dissimilar concurrent sentences, there is no

requirement that the designation be permanent. And yet, Applicant’s

argument is necessarily premised on the idea that his theft offense is

controlling, forever. As TDCJ will establish below, such an assumption

leads to absurd results.

For instance, Applicant’s approach would force TDCJ-CID to

physically release him to MS for his theft conviction, despite the fact that

the statutory requirements authorizing his release for his injury to child

conviction, had not yet occurred. But until the Board affirmatively

releases Applicant to DMS for his injury to child conviction—signified by

a favorable vote and certificate of release under Chapter 508—there

would be no legal mechanism for the Board to impose parole conditions

37

for that sentence. E.g., Tex. Gov’t Code §§ 508.181–.192 (outlining the

conditions governing parole that attach after an inmate’s affirmative

release for a particular sentence). In other words, absent a certificate of

release issued pursuant to § 508.149 for his DMS offense—which

Applicant has never received—neither the Board nor TDCJ-PD would

ever obtain legal custody of Applicant for that sentence. See Tex. Gov’t

Code § 508.147(b) (“An inmate released to mandatory supervision is

considered to be released on parole.”). Without legal control, there can be

no parole conditions to enforce.

If Applicant means to suggest that the Legislature intended he

serve the remainder of his injury to a child sentence without being subject

to parole supervision, he makes no effort to account for this result. If

Applicant means to suggest that the Court should order the Board to

grant DMS release for his injury to a child conviction, to permit him the

benefit of physical release to MS for his theft conviction, he cites no

authority for this either.

Whatever Applicant may intend, if this Court granted his habeas

application, and ordered his physical release to MS for his theft

38

conviction, the Court would effectively allow Applicant to serve the

remainder of his injury to a child sentence beyond the reach and control

of both TDCJ-PD and the Board (at least for that sentence).

There is a strong statutory basis upon which to avoid the

absurdities created by Applicant’s approach. As established above, by

defining “maximum term” to mean the longest remaining concurrent

sentence—as measured at a given point in time—the absurdities implicit

in Applicant’s approach disappear. As applied here, the moment

Applicant’s good-time and calendar-time totaled the twenty-five year

term for his theft offense (i.e., the presumptive MS date), that sentence

no longer qualified as his controlling sentence, because it no longer

served to justify continued incarceration in TDCJ-CID. At that moment

Applicant’s injury to child sentence became controlling, because it was

the only remaining concurrent sentence that required continued

incarceration in TDCJ-CID.

Although Applicant does not complain on this point, it is worth

noting that the Board did not formally issue a certificate of MS release

for his theft offense in 2013, despite the fact that he met his presumptive

39

release date for that sentence. As discussed above, doing so would have

led to the statutory absurdities attendant in “releasing” an inmate to MS

while that inmate remains in TDCJ-CID custody for another sentence,

see supra, Section II. This approach also ensured that Applicant would

continue to earn both flat-time toward his sentence for theft.

Because Applicant’s DMS-eligible sentence became the controlling

sentence (for purposes of the MS release mechanism) as of the date he

was presumptively eligible for MS release for this theft offense, he was

not entitled to physical release in 2013. And absent a statutory violation,

there could not have been a due process violation. See Retzlaff, 135

S.W.3d at 48–49 (demonstrating that an inmate’s protectable liberty

interest in mandatory release is based on the meaning and applicability

of the relevant statute).

40

PRAYER FOR RELIEF

For the foregoing reasons, TDCJ respectfully requests that this

Court dismiss Applicant’s Article 11.07 application as moot, or

alternatively to deny the application, and hold that the manner

methodology used here was correct.11

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

ADRIENNE McFARLAND Deputy Attorney General for Criminal Justice

EDWARD L. MARSHALL Chief, Criminal Appeals Division

/s/ Joseph P. Corcoran JOSEPH P. CORCORAN*

*Lead Counsel Assistant Attorney General Supervising Attorney

for Non-Capital Appeals Criminal Appeals Division State Bar No. 00793549

11If the Court adopts a different interpretation, TDCJ humbly asks the Court to assist it in harmonizing the new approach with the remaining statutory framework. TDCJ has attempted to identify some of the interpretative tensions above, and asks the Court to address at least those questions.

41

Joseph.Corcoran@TexasAttorneyGeneral.gov

P. O. Box 12548, Capitol Station Austin, Texas 78711

ATTORNEYS FOR THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE

42

CERTIFICATE OF SERVICE

Pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate

Procedure, I do hereby certify that if the email address of the attorneys

designated below is on file with the electronic filing manager, a true and

correct copy of the foregoing notice was served electronically by that

electronic filing manager, on the following attorneys via electronic mail:

Kenneth Nash State Counsel for Offenders Attorney for Applicant

Andrea Jacobs Assistant Criminal District Attorney Tarrant County, Texas

Moreover, I do hereby certify that if the email addresses for the

designated attorneys are not on file with the electronic filing manager, a

true and correct copy of the foregoing pleading was served by email,

addressed to:

Kenneth Nash Ken.Nash@tdcj.texas.gov

Andrea Jacobs atjacobs@tarrantcounty.com

/s/ Joseph P. Corcoran JOSEPH P. CORCORAN Assistant Attorney General

43

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF APPELLATE PROCEDURE 73.1(f)

This brief complies with Tex. R. App. Proc. 73.3 in that it contains

9,055 words, as calculated pursuant to Tex. R. App. Proc. 73.1(d), in

Microsoft Word 2013, Century, 14 points.

/s/ Joseph P. Corcoran JOSEPH P. CORCORAN Assistant Attorney General

Nos. WR-31,454-03 & WR-31,454-04

______________________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

______________________________

EX PARTE RODNEY ELNESTO SMILEY, Applicant.

______________________________

On Application for a Writ of Habeas Corpus

Cause No. C-213-010293-1011284-B In the 213th District Court from Tarrant County

Cause No. W94-02594-U(A)

In the 291st District Court from Dallas County

______________________________

APPENDICES

______________________________

KEN PAXTON *JOSEPH P. CORCORAN Attorney General of Texas Assistant Attorney General Supervising Attorney

CHARLES E. ROY for Non-Capital Appeals First Assistant Attorney General Criminal Appeals Division State Bar No. 00793549

ADRIENNE McFARLAND Joseph.Corcoran@TexasAttorneyGeneral.gov Deputy Attorney General for Criminal Justice *Lead Appellate Counsel P. O. Box 12548, Capitol Station EDWARD L. MARSHALL Austin, Texas 78711 Chief, Criminal Appeals Division Telephone: (512) 936-1400 Facsimile: (512) 936-1280

_____________________________

ATTORNEYS FOR THE

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

APPENDIX A

1st Supplemental Clerk’s Record

APPENDIX B

2nd Supplemental Clerk’s Record

0 3I,43V~0V

2nd SUPPLEMENTAL

CLERK'S RECORD

VOLUME 1 of 1

Writ Number: C-213-010293-1011284-B

Filed In the 213TH DISTRICT COURT of Tarrant County, Texas

Vot2£5fe&v Hon. LOUIS E. STURNS, Presiding Judge

EX PARTE: RODNEY ELNESTO SMILEY

'•••••

vs.

THE STATE OF TEXAS

Appealed to the Courtof Criminal Appeals for the State Of Texas

FEB 17 2015

at Capitol Station AUSTIN, TEXAS

ATTORNEY FOR THE APPELLANT

KENNETH NASH, RETAINED STATE COUNSEL FOR OFFENDERS P.O. BOX 4005 HUNTSVILLE, TEXAS 77342-4005 PHONE: 936-437-5203 FAX: SBOT: 14811030 Attorney for RODNEY ELNESTO SMILEY,Appellant

(Court of CRIMINAL APPEALS)

Delivered to the Court of CriminalAppeals for the State Of Cause No.

Texas At Capitol Station, AUSTIN, Texas, on the Filed in the Court of CriminalAppeals for the State of Texas, at CapitolStation, AUSTIN, Texas, this JJ_ day of (eJbTsAAfiA.ZOlS7 tf

THOMAS A. WILDER, DISTRICT CLERK, .day of.

TARRANT COUNTY, FORTWORTH, TEXAS

CfaiiJ&j. LOUISE PEARSON .Clerk

LAUREN RABY By. Deputy

Deputy District Clerk

INDEX

tl1111im)linillIMII1llirnrtr«l«^^ '"'''^''''^^'''llllllllllllllllllllllllllrfflnnfflllM^ ' 'II ' 'iMmVMI^fW™*MMVBmMM™IMW^M1, ~*»m>mmi>nmmmimww^>«»r*iiimm?m»imm<t

Caption 1

Applicant's Response to The Affidavit of Charley Valdez 2

Clerk's Certificate 10

CAPTION

THE STATE OF TEXAS

COUNTY OF TARRANT

At a term of the 213TH DISTRICT COURT of Tarrant County, Texas, the Honorable LOUIS E. STURNS sitting as Judge of said court, the following proceedings were had, to-wit:

Writ Number: C-213-010293-1011284-B

EX PARTE:

RODNEY ELNESTO SMILEY

VS.

THE STATE OF TEXAS

FILED

CAUSE NO. C-2130010293-1011284-B PEBJ ° 20'5 CASE NO. WR-31,454-03 TIME -^-3^ BY cXrrfr ncoiiTY EXPARTE § IN THE DISTRICT COURT

§ 213™ JUDICIAL DISTRICT

RODNEY ELNESTO SMILEY § TARRANT COUNTY, TEXAS

APPLICANT'S RESPONSE TO THE AFFIDAVITOF CHARLEY VALDEZ

TO THE HONORABLE JUDGE OF THIS COURT:

Applicant, RODNEY ELNESTO SMILEY, makes the following response to

certain averments in the Affidavit ofCharley Valdez filed on January 26, 2015, as

follows:

1. On November 26, 2014, the Court of Criminal Appeals instructed this

court to order the Texas Department of Criminal Justice's Office of the General

Counsel to file an affidavit

listing Applicant's sentence begin date and his initial discretionary mandatory supervision eligibility and review dates. The affidavit should indicate whether Applicant's initial review date changed, and if so, why the date was changed and the new date for review. The affidavit shall also indicate the dates of any discretionary mandatory supervision votes.

Exparte Smiley, Case No. WR-31,454-003 {Per Curiam Order filed November 26,

2014). In compliance with the Court of Criminal Appeals' order, on December 11,

2014, this court ordered a representative from the Texas Department of Criminal

Justice (TDCJ) to answer seven questions. Exparte Smiley, Cause No. C-213-

010293-1011284-B (Memorandum and Order filed December 11, 2014). In his

affidavit, Valdez avers:

Because an offender may not be released to mandatory supervision until eligible to be released on all mandatory eligible offenses, TDCJ calculates the projected mandatory release date on the controlling mandatory eligible offense; in this instance cause number F-9402594- U had a projected mandatory supervision date of 5-12-2013, and his DMS notice was based on this date. On 1-29-2013, Applicant was provided notice that he was being reviewed for DMS oncause number, Ti,.T 1011284D, and that he had until 2-28-2013 to provide any information to the Board of Pardons and Paroles (BPP) regarding his release. On 4-10-2013, the BPP voted to deny release to DMS with a next review date of 04/2014.

On 12-12-2013, Applicant was provided notice that he was being reviewed for DMS, and that he had until 1-11-2014 to provide any information to the BPP regarding his release. On 2-18-2014, the BPP voted to deny release to DMS with a nextreview date of 02/2015.

On 10-14-2014, Applicant was provided notice that he was being for DMS, and that he had until 11-15-2014 to provide any information to the BPP regarding his release. On 12-15-2014, the BPP voted to deny release to DMS with a next review date of 12/2015.

Affidavit ofCharley Valdez at 3.1 2. Valdez's affidavit clearly demonstrates the predicament that Applicant

and other similarly-situated inmates find themselves in due to a so-called policy or

rule in which the BPP and TDCJ's Pardons and Paroles Division refuse to release

an inmate (on mandatory mandatory supervision) until he is eligible for release on

1Valdez also averred that "Applicant's initial review date wasnot changed." Affidavit of Charley Valdez at 3.

all of his sentences.2 Curiously, this policy or rule seems to affect only those

inmates (like Applicant) who were admitted to mandatory mandatory-supervision

release and thereafter committed a new discretionary mandatory-supervision

offense. Because he had not achieved his mandatory mandatory-supervision

release date of April 8,2014,3 on his old sentence, he remained incarcerated

despiteMving become eligible for discretionary mandatory-supervision release on

his new sentence back on September 21, 2010. See Applicationfor Writ ofHabeas

(Exhibit D). After a series ofnegative BPP votes, Applicant's projected release is now scheduled for February 8, 2016, at whichtime he will have discharged his

discretionary mandatory-supervision sentence and must be released on his

mandatory mandatory-supervision sentence (for which he became originally

eligible back on April 13, 2013). See Applicationfor Writ ofHabeas Corpus

(Exhibit E-l).

3. Given the way that the BPP has heretofore successfully enforced its so-

called policy or rule renders discretionary mandatory-supervision release an

illusory concept for inmates like Applicant. See Exparte Bohannan, 350 S.W.3d 116,120 (Tex. Crim. App. 2011) (admonishing TDCJ's Pardons and Paroles

2This same predicament is also presented inExparte Brandon, Case No. WR-81,846-02, also pending before the Court of Criminal Appeals.

3Subsequently, Applicant was promoted in time-earning status and mandatory-supervision releasedate on his old sentence was advanced to May 13,2013. SeeApplicationfor Writ of Habeas Corpus at 8 (Exhibit E-l).

Division to obey the law); cf. Exparte Bohannan, 350 S.W.3d at 121 (Keasler, J.,

concurring).

4. Wherefore, Applicant prays that this court enter appropriate findings of

fact and conclusions of law and recommend to the Court of Criminal Appeals that

the Application for Writ ofHabeas Corpus begranted, and that Applicant

immediately be released on discretionary mandatoryJsuperyision.__.

Respectfully submitted,

State Counsel for Offenders Attorney for Applicant

Kenneth NaslT Texas Bar No. 14811030 P.O. Box 4005 Huntsville, TX 77342 Telephone no. 936-437-5291 Facsimile no. 936-437-5279 E-mail address: Ken.Nash@tdci.texas.gov

CERTIFICATE OF COMPLIANCE

In accordance with Rule 9.4(i)(3), Rules ofAppellate Procedure, I certify

that this computer-generated document is comprised of 773 words (excluding the

matters listed in Rule 9.4(i)(l)).

fc*L^A*~ L Kenneth Nash

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Applicant's Response

to the Affidavit ofCharley Valdez was served upon the attorney for the State,

Andrea Jacobs, at 401 West Belknap, Fort Worth, TX 76196, by first-class United

States mail on February L^> , 2015.

J

<^i^rM^yi^^_l\^_ Kenneth Nash

FEB ! 0 2015

T1MF v3' &fi BY ,*PT1? DEPUTY g>tate Counsel for ®ffenber£ 3 JDititiion ofWexat Btpartment of CriminalJustitt

P.O. Box 4005

Huntsvillc,TX 77342-1005

(936)437-5203

February 4,2015

Tarrant County District Clerk's Office 401W. Belknap =.-J=a^=M=^..-_ Ft.Worth, Texas" 76196"

CERTIFIED MAIL RETURN RECEIPT REQUESTED #7012 1010 0002 5674 5203

Re: The State ofTexas v. Rodney ElnestoSmiley Cause No. C-213-010293-1011284-B in the 213th Judicial District Court ofTarrant County, Texas

Dear Sir or Madam:

Enclosed, please find original and two copies of Applicant's Response to the Affidavit of Charley Valdez.

By copy of this letter, I am forwarding a copy of same to Ms. Andrea Jacobs, attorney for the state. Please return a file-stamped copy ofthe memorandum to the undersigned in the enclosed stamped envelope.

Thank you for your courtesies regarding this matter. If there are any questions, please contact undersigned counsel.

Sincerely,

Kenneth Nash Appellate Section Chief Phone: (936) 437-5291 Fax:(936)437-5295 . . E-Mail Address: Kenneth.Nash@tdcj.texas.gov

Enclosures

cc: Ms. Andrea Jacobs CMRRR #7012 1010 0002 5674 5210 Deputy District Attorney Tim Curry Criminal Justice Center 401 West Belknap Fort Worth, Texas 76196

cc: Mr. Rodney Elnesto Smiley TDCJ# 00693698 Estes Unit —1100 Highway 1807 ' --—....•.•.__..• Venus, Texas 76084

State Counsel for Offenders P.O. Box 4005 Huntsville, TX 7.7342 ' ATTN: Appellate Section 7D12 1D1Q 0DD2 5b74 5203 &$M&

ffiiSB !&:? ^007.6'/°

'-&

^ ;3

FILED

TH«^c^^!TEarK Tarrant County District Clerk's Office 401W. Belknap

FEB 10 2015

Ft Worth, Texas 76196

TWE_ BY_ .DEPUTY

CD

Certified True Copy

THE STATE OF TEXAS

COUNTY OF TARRANT

I, Thomas A. Wilder, Clerk of the District Courts of Tarrant County, Texas, do hereby certify that the above and foregoing is a true and correct copy of ALL PROCEEDINGS HAD.

In Writ Number: C-213-010293-1011284-B

EX PARTE: RODNEY ELNESTO SMILEY VS.

THE STATE OF TEXAS

as the same appears on the file and/or record in my said office.

GIVEN UNDER MY HAND and seal of Said Court at office in the City of Fort Worth, Tarrant County, Texas, this the // ,day of ^JOTUOfU .A.D. ?J)lS .

THOMAS A. WILDER

CLERK, DISTRICT COURTS, TARRANT COUNTY, TEXAS

by rf\nM j 0si

Deputy

APPENDIX C

3rd Supplemental Clerk’s Record • 3rd SUPPLEMENTAL • 3/, 46'-/- 0~

CLERK'S RECORD

VOLUME 1 of 1

Writ Number: C-213-010293-1011284-B

Filed In the 213TH DISTRICT COURT of Tarrant county, Texas RECEIVED IN Hon. LOUIS E. STURNS, Presiding Judge COURT OF CRIMINAL APPEALS

lFEB 26 2015

EX PARTE: RODNEY ELNESTO SMILEY

vs.

THE STATE OF TEXAS

Appealed to the Court of Criminal Appeals for the State OfTexas

at Capitol Station AUSTIN, TEXAS

ATTORNEY FOR THE APPELLANT

KENNETH NASH, RETAINED STATE COUNSEL FOR OFFENDERS P.O. BOX 4005 HUNTSVILLE, TEXAS 77342~4005 PHONE: 936 437-5203 FAX: SBOT: 14811030 Attorney for RODNEY ELNESTO SMILEY, Appellant

Delivered to the Court of Criminal Appeals for the State Of (Court of CRIMINAL APPEALS) Texas At Capitol Station, AUSTIN, Texas, on the Cause N o . - - - - - - - - - - - - -

Filed in the Court of Criminal Appeals for the State of Texas, .B._ day of ~//lA.1j 2/!J J ~ at Capitol Station, AUSTIN, Texas, this

THOMAS A. WILDER, DISTRICT CLERK, _ _ _ day of _ _ _ _ _ _ _ _, _ _ __ TArRANT CO TY, ~EXAS _ _ _ _ _..:.LO=U=I=SE=--'-'PE=A.!!.R=S=Oc:...:N_ _ __. Clerk

By _ _ _ _ _ _ _ _ _ _ _ _ _ _ , Deputy

• INDEX •

Caption ........................ ~ ................................................................................................................................1

State's Proposed Memorandum, Findings of Fact and Conclusions of Law ............................................. 2

Order ..........................................................................................................................................................9

Clerk's Certificate ......................................................................................................................................10

CAPTION

THE STATE OF TEXAS §

COUNTY OF TARRANT §

At a term of the 213TH DISTRICT COURT of Tarrant County, Texas, the Honorable LOUIS E. STURNS sitting as Judge of said court, the following proceedings were had, to-wit:

Writ Number: C-213-010293-1011284-B

EX PARTE:

RODNEY ELNESTO SMILEY

vs.

THE STATE OF TEXAS

. .. , ..

•

NO. WR-31,454-03

NO. C-213-010293-1011284-B

EX PARTE § § § ·DISTRICT COURT OF §

RODNEY ELNESTO SMILEY § TARRANT COUNTY, TEXAS

STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT AND CONCLUSIONS OF LAW

The State proposes the following Memorandum,· Findings of Fact and Conclusions of Law regarding the issues raised in the present Application for Writ of Habeas Corpus.

MEMORANDUM

The applicant, RODNEY ELNESTO SMILEY ("Applicant"), alleges his

confinement is illegal because (1) his right to due process was violated when the

notice and vote of the Texas Department of Criminal Justice- Board of Pardons and

Parole ("TDCJ") were made more than 2 years after he became eligible for

mandatory supervision release and (2) his due course of law rights were violated

when TDCJ's notice and vote were made more than 2 years after he became eligible

for mandatory supervision. See Application, p. 6-9.

The Texas Court of Criminal Appeals. has remanded this application back for

resolution of whether Applicant was denied due process by the late vote to deny him

• • release to discretionary mandatory supervision. See Ex parte Smiley, No. WR-

31,454-03 (Tex; Crim. App. Nov. 26, 2014) (not designated for publication).

In response to an order from this Court, Charley Valdez, Program Supervisor

III for the Classifications and Records Department of the Texas Department of

Criminal Justice- Correctional Institutions Division, has filed an affidavit addressing

Applicant's claims. In light of Applicant's contentions and the evidence presented in

the Writ Transcript,' the Court should consider the following proposed findings of

fact and conclusions of law:

FINDINGS OF FACT

General Facts

1. Applicant pled guilty, pursuant to a plea agreement, to the third degree felony offense of injury to a child with intent to cause bodily injury. See Judgment, No. 1011284D.

2. In accordance with the plea agreement, the State waived the habitual offender notice and the trial court sentenced him to ten years confinement in the Texas Department of Criminal Justice- Institutional Division. See Judgment.

3. Applicant did not appeal his conviction. See Criminal Docket Sheet, No.

1011284D. .

4. Applicant's first application for writ of habeas corpus was dismissed for non-

compliance on August 6, 2014. See Ex parte Smiley, WR-31,454-02, No. C- 213-010241-1011284-A (Tex. Crim. App. Aug. 6, 2014) (not designated for publication).

•

"Late" Consideration for Mandatory Supervision

5. Applicant's sentence date in this case, Cause Number 1011284D, was October 26,2006 with pre-trial credit back to February 8, 2006. See Valdez Affidavit, p. 2.

6. Applicant received a twenty-five year sentence in Cause Number F-9402594-

PU O\lt of Dallas County on November 28, 1994, with credit back to June 28, 1994. See Valdez Affidavit, p. 2.

7. After revocation of parole in Cause Number F-9402594-PU on November 8, 2006, Applicant forfeited four years, four months, and eight days of time. See Valdez Affidavit, p. 2.

8. Applicant's maximum discharge date in Cause Number F-9402594-PU is November 4, 2023, twenty-nine years, four months, and eight days after June 28, 1994. See Valdez Affidavit, p. 2.

I

9. Based on Applicant's sentence and good time credits, Applicant was eligible for release to mandatory supervision on May 12, 2013, in Cause Number F- 9402594-PU. See Valdez Affidavit, p. 3.

10. Because an offender may not be released to mandatory supervision until eligible for release on all offenses, TDCJ did not calculate Applicant's mandatory supervision eligibility in this case separate from his eligibility in Cause Number F-9402594-PU as that offense was the controlling mandatory offense. See Valdez Affidavit, p. 3.

11. It would be unreasonable that an offender is entitled to release to mandatory supervision if he is only eligible for release on one offense but not all offenses.

12. It is unreasonable for TDCJ to consider an offender for release to mandatory supervision on an offense if he is not eligible for release to mandatory supervision on all offenses because, even if granted release to mandatory supervision on one offense, Applicant will not be released to mandatory supervision unless eligible for release on all offenses.

13. Applicant was notified on January 29, 2013, that he would be reviewed for release to mandatory supervision and that he had until February 28, 2013, to provide any information in support ofhis release. See Valdez Affidavit, p. 3.

. '

• • 14. On April 10, 2013, Applicant was denied release to mandatory supervision.

See Valdez Affidavit, p. 3.

15. On December 12, 2013, Applicant was given notice that he would be considered for release to mandatory supervision and that he had until January 11, 2014, to provide any information in support of his release. See Valdez Affidavit, p. 3.

16. On February 18, 2014, Applicant was denied release to mandatory supervision. See Valdez Affidavit, p. 3.

17. On October 14, 2014, Applicant was notified that he would be reviewed for release to mandatory supervision and that he had until November 15, 2014, to provide any information in support of his release. See Valdez Affidavit, p. 3. ·

18. On December 15, 2014, Applicant was denied release to mandatory supervision. See Valdez Affidavit, p. 3.

19. Applicant's next review date is December, 2015. See Valdez Affidavit, p. 3.

20. Applicant will currently discharge the sentence in this case on February 8;

2016. See Valdez Affidavit, p. 2.

CONCLUSIONS OF LAW

General Writ Law

1. In a habeas corpus proceeding, the burden of proof is on the applicant. Ex parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). An applicant "must prove by a preponderance of the evidence that.the error contributed to his conviction or punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001 ). ·

2. Relief may be denied if the applicant states· only conclusions, and not

1

specific facts. Ex parte McPh,erson, 32 S.W.3d 8?0, 861 (Tex. Crim. App. 2000). In addition, an applicant's sworn allegations alone are not sufficient to prove his claims: Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988). .

• • "Late" Consideration for Mandatory Supervision

3. Applicant has failed to prove that he was eligible for release to mandatory supervision in this case prior to May 12, 2013.

4. Applicant has failed to prove that his consideration for mandatory supervision in this case was late.

5. An inmate has a constitutional due process right to 30 days' advance notice before being considered for release to mandatory supervision. Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004).

6. Applicant received proper notice before he was considered for release to mandatory supervision.

7. Applicant has failed to prove that he was denied due process when TDCJ reviewed him for release to mandatory supervision in 2013.

8. This Court recommends that Applicant's first ground for relief be DENIED.

9. Applicant has failed to prove that he was eligible for release to mandatory supervision in this case prior to May 12, 2013.

10. Applicant has failed to prove that his consideration for mandatory supervision in this case was late.

11. An inmate has a constitutional due process right to 30 days' advance notice before being considered for release to mandatory superv1s1on. Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004).

12. Applicant received proper notice before he was considered for release to mandatory supervision.

13. Applicant has failed to prove that he was denied course of law when TDCJ reviewed him for release to mandatory supervision in 20 13.

14. This Court recommends that Applicant's second ground for relief be DENIED.

• • WHEREFORE, the State prays that this Court adopt these Proposed Findings

of Fact and Conclusions of Law and recommend that Applicant's grounds for relief

be DENIED ..

Respectfully submitted,

SHAREN WILSON Criminal District Attorney Tarrant County ·~ · Andrea Jacobs

Assistant Criminal District Attorney State Bar No. 24037596 401 West Belknap Fort Worth, TX 76196-0201 Ph.one: 817/884-1687 Facsimile: 817/884-1672

CERTIFICATE OF SERVICE

A true copy of the above has been mailed to Applicant, Mr. Rodney Elnesto · Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas 77342 on the 18TH day of February, 2015.

Andrea Jacobs

CERTIFICATE OF COMPLIANCE

I certify that the total number of words in ·this State's Memorandum, Proposed

Findings of Fact and Conclusions of Law is 1528 words as determined by Microsoft

Office Word 2013.

r----··· Andrea Jacobs .

• • NO. WR-31,454-03

NO. C-213-010293-1011284-B

EX PARTE § IN mE 213th JUDICIAL § § DISTRICT COURT OF §

RODNEYELNESTOSN.ULEY § TARRANT COUNTY, TEXAS

ORDER

The Court adopts the State's Memorandum, Findings of Fact and Conclusions of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY ("Applicant") requests should be DENIED. The Court further orders and directs:

1. The Clerk of this Court to file these findings and transmit them along with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by law.

2. The Clerk of this Court to furnish .a copy of the Court's findings to Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas · 77342 (or to Applicant's most recent address), and to the post-conviction section of the Criminal District Attorney's Office.

SIGNED AND ENTERED this _ _ day of _ _ _ _ _ _ _ _, 2015.

JUDGE PRESIDING

•• • FILED THOMAS A WILDER, DIST. CLERK · TARRANT COUNTY. TEXAS

FEB 24 2015

NO. WR-31,454-03

NO. C-213-010293-1011284-B TIME ' I ;d., Lp BV ___~~:;:::::::e:::...J DEPUTY EX PARTE § IN THE 213th JUDICIAL § § DISTRICT COURT OF §

RODNEY ELNESTO SMILEY § TARRANT COUNTY, TEXAS

ORDER

'

The Court adopts the State's Memorandum, Findings ofF act and Conclusions of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY ("Applicant") requests should be DENIED. The Court further orders and directs:

1. The Clerk of this Court to file these findings and transmit them along with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by law.

2. The Clerk of this Court to furnish a copy of the Court's findings to Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas 77342 (or to Applicant's most recent address), and to the post-conviction section of the Criminal District Attorney's Office.

SIGNED AND ENTERED this __2_±_ day of:E_.J.-Q..-~b=--.~1~-.- _ __ : , 2015.

,9

Certified True Copy

THE STATE OF TEXAS §

COUNTY OF TARRANT §

I, Thomas A. Wilder, Clerk of the District Courts of Tarrant County, Texas, do hereby certify that the above and foregoing is a true and correct copy of ALL PROCEEDINGS HAD.

In Writ Number: C-213-010293-1011284-B

EX PARTE: RODNEY ELNESTO SMILEY vs.

THE STATE OF TEXAS

as the same appears on the file and/or record in my said office.

GNEN UNDER MY HAND and seal of Said Court at office in the City of Fort Worth, Tarrant County, Texas, this the 2!1.._, day of~, A.D. ~) S

CLERK, DISTRICT COURTS, TARRANT COUNTY, TEXAS ::-· . ·-

APPENDIX D

Clerk’s Record .... --··

RECE~VED ~N • _,,

~}

:•: ... .. '• • - <

CO\JRT OF CR\M\NAL APPEALS SEP 25 2014 CLERK'S RECORD Abel Acosta, Clerk VOLUME 1 of 1

Writ Number: C-213-010293-1011284-B

Filed In the 213TH DISTRICT COURT of Tarrant County, Texas

Hon. LOUIS E. STURNS, Presiding Judge

EX PARTE: RODNEY ELNESTO SMILEY

vs.

THE STATE OF TEXAS

Appealed to the Court of Criminal Appeals for the State Of Texas

at Capitol Station AUSTIN, TEXAS

ATIORNEY FOR THE APPELLANT

KENNETH NASH, RET AI NED STATE COUNSEL FOR OFFENDERS P.O. BOX 4005 HUNTSVILLE, TEXAS 77342-4005 PHONE: (936) 437-5203 FAX: SBOT: 14811030 Attorney for RODNEY ELNESTO SMILEY, Appellant

Delivered to the Court of Criminal Appeals for the State Of (Court of CRIMINAL APPEALS) Texas At Capitol Station, AUSTIN, Texas, on the Cause N o < - - - : - - - - - : - - - - - - : - : = - - -

Filed in the Court of Criminal Appeals for the State of Texas, _2:!L dayof~/Py, ~)tf at Capitol Station, AUSTIN, Texas, this

_ _ _ day of _ _ _ _ _ _ _ _ _ _ __

_ _ _ ___,L,_,O=U=IS'-'=E'-'-P-'=EA'-"R_,S=O=N,___ __.. Clerk

By _ _ _ _ _ _ _ _ _ _ _ _ _ , Deputy

Deputy District Clerk • Application for Writ of Habeas Corpus from Tarrant County, Texas

213TH DISTRICT COURT

Ex Parte:

RODNEY ELNESTO SMILEY

WRIT NO. C-213-010293-1011284-B

CLERK'S SUMMARY SHEET

APPLICANT'S NAME: RODNEY ELNESTO SMILEY

OFFENSE: INJ CHILD/ELD/DISABL-BI

PLEA: GUlL TY

CAUSE NO: 1011284D

SENTENCE: 10 YEARS IDTDCJ

SENTENCE DATE: 10/26/2006

TRIAL JUDGE'S NAME: HONORABLE ROBERT GILL

APPEAL NO: NONE

CITATION TO OPINION: N/A S.W. N/A

HEARING HELD: NO

FINDINGS & CONCLUSIONS FILED: YES

RECOMMENDATION: DISMISS AS MOOT

HABEAS JUDGE'S NAME: HONORABLE LOUIS E STURNS

NAME OF COUNSEL IF APPLICANT IS REPRESENTED: KENNETH NASH • INDEX •

Caption ....................................................................................................................................................... 1

Application for Writ of Habeas Corpus ....................................................................................................... 2

Waiver of Service .....................................................................................................................................52

State's Response to Application for Writ of Habeas Corpus ................................................................... 53

State's Proposed Memorandum, Findings of Fact and Conclusions of Law ........................................... 60

Order .......................................................................................................................................................65

Clerk's Certificate ......................................................................................................................................66

ce

CAPTION

THE STATE OF TEXAS §

COUNTY OF TARRANT §

At a term of the 213TH DISTRICT COURT of Tarrant County, Texas, the Honorable LOlliS E. STURNS sitting as Judge of said court, the following proceedings were had, to-wit:

I( \

Writ Number: C-213-010293-1011284-B

EX PARTE:

RODNEY ELNESTO SMILEY

vs.

THE STATE OF TEXAS

(. FILED \... -~~M~~RK.

AUG 25 2014

Case No. TIME /:4~1;;

(The Clerk of the convicting court will fill thi~ yne in.) sv_·:.:.::_:-:-:,B~.~-:?g~:::-0-EP-UlY--.. C,- ·~ \y 0lD 213- ID)J·zBci- ·- F3 IN THE COURT OF CRIMINAL APPEALS OF TEXAS . .

APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME: Rodney Elnesto Smiley

DATEOFBIRTH: _fu~ly~12~,_1_96_4__________________________~----------

PLACE OF CONFINEMENT: Sanders "Sandy" Estes Unit (TDCJ)

TDCJ-CID NUMBER: _00_6_93_6_9_8 --------- SID NUMBER: _03_3_6_12_0_5_ _ _ __

(1) This applicatio~ concerns (check all that ~pply):

D a conviction D · parole

D a sentence 0 mandatory supervision

D time credit D out-of-time appeal or petition for discretionary review

(2) . What district court entered the judgment of the conviction you want relief from?

(Include the court number and county.)

213th District Court ofTanant County, Texas

(3) What was the case number in the trial court?

1011284D

(4) What was the name of the trial judge?

Robert K. Gill

Effective: January 1, 2014 1

(-·

(5) · Were you represented by counsel? If yes, provide the attorney's name:

Yes; Joetta Keene

(6) What was the date that the judgment was entered?

October 26, 2006

(7) For what offense were you convicted and what was the sentence?

Injmy to a Child; 10 years' confinement in Institutional Division, TDCJ

(8) · If you were sentenced on ·more than one count of an indictment in the same court ,at the same time, what counts were you convicted of and what was the sentence in each count?

(9) What was the plea you entered? (Check one.)

D guilty:-open plea IV Iguilty..:plea bargain D not guilty · D nolo conte1idere/no. contest If you entered different pleas to counts in a multi-count indictment, please explain:

(10) What kind of trial did you have?

0nojury

B jury for guilt and punishment jury for guilt~ judge for punishment

I I

(11) Did you testify at trial? If yes, at what phase of the trial did you testify?

(12) Did you appeal from the judgment of conviction?

~no

. . If you did appeal, answer the following questions:

(A) What court of appeals did you appeal to?

(B) What was the case number?

(C) Were you represented by counsel on appeal? If yes, provide the-attorney's name:

(D) What was the decision and the date of the decision?

_ (13) Did you file a petition for discretionary review in the Court of Criminal Appeals?

Dyes

If you did file a petition for discretionary review, answer the following q:nestions:

(A) What was the case number?

(B) What was the decision and the date of the decision?

(14) Have you previously filed an application for a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure challenging this conviction?

~yes Ono

lfyou answered yes, answer the following questions:

WR-454-02-

(A) What was the Courf of Criminal Appeals' writ number?

3 - 4

.c. ce Dismissed; August 6, 2014 (B) Whatwasthedecision and the date ofthe decision?

(C) Please identify the reason that the current claims were not presented and could not have been presen~ed on your previous application.

(15) Do you currently have any petition or appeal pending in any other state or federal court?

~yes 'Ono··

If you answered yes, please provide the name of the court and the case number:

291st District Court ofDallas County, Texas; Cause No. W94-02594-U(B)

(16) If you are presentinga claim for time credit, have you exhausted your administrative remedies by presenting your claim to the time. credit-resolution system of the Texas Department of Criminal Justice? (This requirement applies to any finaf felony conviction, including state jail felonies) ·

Ono

If you answered yes, answer the following questions: .

· (A) What date did you present the claim?

(B) Did you receive a decision and, if yes, what was the date of' the decision?

If you answered no, please explain why you have not submitted your claim:

ce ce Not applicable, see Ex parte Long, No. WR-64,125-01, 2006 Tex. Crim. App.

Uni:mb. LEXIS 515 at *1-2 (per curiam order delivered March 8, 2006).

Moreover, Applicant is excused from the exhaustion requirement by Sec~

501.0081(c), Government Code.

(17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each . ground. You must present each ground on the form application and a brief summary.ofthe.facts. lfyour groUJ~ds and briefsumma~y of~hefacts have not been presented Oil the fomi application, the f;ourt Wi/lnot consider you_r groUTlifS. Ifyou have more than four grounds, use pages 14 and 15 of the form, which you m~y copy as many times as needed to give you a separate page for each ground, with ~ach ground numbered i~ sequence. tile recitatio~ of the facts supporting e~ch ground must be no longer than the two pages provided for the ground in the form.

You may include with the form a memorandum of law if you want to present legal authorities, but the Court will not consider grounds for relief set out in a ~emorandum of hiw that -yvere not raised on the for:m. The citations imd arg~ment must be in a memorandum that compli~s with Texas Rule· of Appellate Procedure 73 . and does not exceed 15,000 words if computer-generated or 50 pages if not. If you are challenging the validity of your conviction, please include a summary of the facts pertaining to your offense and trial in your memorandum.

5 6

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GROUND ONE: Applicant's right of due process was violated when TDCJ's notice was given and BPP's vote

was taken more than 2 years after Applicant became eligible for mandatory supervision release.

FACTS SUPPORTING GROUND ONE: ·On November 28, 1994, Applicant was convicted ofthe offense of Theft ofProperty and

sentenced to 25 years' confinement in the TDCJ-ID. See Exhibit A. On August 30, 2001,

Applicant was released from custody on parole supervision. See Exhibit B-4. On October 26,

2006 (and while on parole supervision), Applicant was convicted of the offense oflnjury to a

Child and sentenced to 10 years' confmement in TDCJ-ID. See Exhibit C. On Nove~ber 8,

2006, the Board of Pardons and Parole (BPP) revoked Applicant's parole. See Exhibit B-3. On

December 7, 2006, TDCJ-ID determined Applicant's mandatory supervision release date on his

old sentence as April 8, 2014 and his (discretionary) mandatory supervision release date on his

new sentence as September 21, 2010. See Exhibit D. Subsequently, Applicant was promoted in

time-earning status and his mandatory supervision release date on his old sentence was advanced

to May 13, 2013. See Exhibit E-1. According to a document entitled NDMS Information dated

January 14, 2013, well after Applicant achieved his eligibility for release on (discretionary)

mandatory supervision, TDCJ notified Applicant that he would be reviewed for (discretionary)

ce

mandatory supervision release. See Exhibits F and B-1. On April10, 2013, a BPP parole

panel issued its decision to deny mandatory supervision release (DMS). See Exhibits G and B-1.

TDCJ re-established Applicant's (discretionary) mandatory supervision release date on his new

sentence as February 8, 2016. See Exhibit E-1.

According to TDCJ's original calculations, Applicant would have become eligible for

(discretionary) mandatory supervision release on his new sentence on September 21,2010. See

Exhibit D. However,'TDCJ and BPP delayed more than . 2 years before.taki'ng any . action. See

Exhibit R-1. Applicant should be immediately relea~ed on mandatory supervision on his new

sentence.

7 8

ce.

GROUND TWO: Applicant's due-course-of-law-rights were violated when TDCJ's notice was given and BPP's

vote' was taken more than 2 yeai·s after Applicant became eligible for mandatmy supei-vision.

FACTS SUPPORTING GROUND TWO: On November 28, 1994, Applicant was convicted of the offense of Theft of Property and

sentenced to 25 years' confinement in the TDCJ-ID. See Exhibit A. On August 30, 2001,

Applicant was released from custody on parole supervision. See Exhibit B-4. On October 26,

2006 (and while on parole supervision), Applicant was convicted of the offense oflnjury to a

Child and sentenced to 10 years' confinement inTDCJ-ID. See Exhibit C. On.November 8, ·

2006, the Board ofP~donsand Parole (BPP) reyoked Applicant's parole. See Exhibit B-3. On

December 7, 2006, TDCJ-ID determined Applicant's mandatory supervision rekase date on his

. . .

ol4 sentence as April '8, 2014 ~hd his (discretionary) ma~datory supervision·.release date on his

new sentence as September 21, 2010. See Exhibit D. Subsequently, Applicant was promoted in

time-earning ·status and his mandatory supervision release date on his old senten~e was advanced

ilil to May 13, 2013. See Exhibit E-1. According to a document entitled NDMS Information dated

January 14, 201:3, well after Applicant achieved his eligibility for release on (discretionary)

mandatory supervision, TDCJ notified Applicant that he would be reviewed for (discretionary)

re. ce mandatory supervision release. See Exhibits F and B-1. On April10, 2013, a BPP parole panel

issued its decision to deny mandatory supervision release (DMS). See Exhibits G and B-1.

TDCJ re-established Applicant's (discretiomny) mandatmy supervision release date on his new

sentence as Feoruary 8, 2016. See Exhibit E-1.

According to TDCJ's original calculations, Applicant would have become eligible for

(discretionary) mandatory supervision release on his new sentence on September 21, 2010. See

Exhibit D. However, TDCJ and BPP delayed more than 2 years before taking any action. See

· Exhibit B-1. Applicant should be immediately releas·ed on mandatory supervision on his new

sentence.

GROUND THREE:

FACTS SUPPORTING GROUND THREE:

. (.

11. 12

GROUND FOUR:

FACTS SUPPORTING GROUND FOUR:

ce .c.

GROUND:

FACTS SUPPORTING GROUND:.

14

15

' il ce

15 .16

WHEREFORE, APPLICANT PRAYS THAT THE C.OURT GRANT APPLICANT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

VERIFICATION

This application must be verified or it will be dismissed for non-compliance. For verification purposes, an applicant is a person filing the application on his or her own behalf. A petitioner is a person fiiing the application on behalf of an applicant, for example, an applicant's attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the "Oath Before a Notary Public" before a notary public or the "Inmate's Declaration" without a notary public. If the i:rimate is represented by a licensed attorney, the attorney may sign the "Oath B~fore a Notary Public" as petitioner and then complete "Petitioner's Information." A non-inmate applicant must sign the "Oath Before a Notary Public" before a notary public unless he is represented by a licensed attorney, in which case the attorney may sign the verification as petitioner.

A non-inmate non-attorney petitioner must sign the "Oath Before a Notary Public"

before a notary public and must also complete "Petitioner's Information." An inmate petitioner must sign either the "Oath Before a Notary Public" before a notary· public or the "Inmate's

a

Declaration" without notary public and must also· complete the appropriate ''Petitioner's Information."

OATH BEFORE A NOTARY PUBLIC

STATE OF TEXAS

COUNTY OF Walker

-------

Kenneth Nash . · , being duly sworn, under oath says: "I am the applicant /~titio:ii.¢(circle one) in this action and know the contents of the above

a

application for writ of habeas corpus and, according to my beiief, the facts stated in the · application are true."

Lo4>

SUBSCRJBED AND SWORN TO BEFORE ME THIS~ DAY OF August , 2014

.4~!:.~~!':.:.\ ~~y...A:;_···~ \~.~··. ~ . .{J

\

LISA MARIE ~OSS

Notary Pu•hc STATE OF TEXAS

d;~iYhA~dlliro Signature of Notary Public '··~~:!i~.~··· My Comm. Exp. May 20, 2017

PETITIONER'S INFORMA TJON

Petitioner's printed name:_K_e_nn_e_th_N_a_sh_ _ _ _ _ _ _ _ __

State bar number, if applicable: _1_4_8_11_0_3_0_ _ _ _ _ _ _ __

Address: State Counsel for Offenders

P.O. Box 4005

Huntsville, TX 77342

Telephone: (936) 437-5291

Fax: (936) 437-5279

INMATE'S DECLARATION

. .

I, - - - - - - - - - : - - - - - - - ' am the applicant/ petitioner (circle m~e) and

being presently incarcerated in _ _ _ _ _ _ _ _ _ _ _ _ _· _, declare urider penalty of

perjury that, according to my belief, the facts stated in the above application are true and correct.

Signed on---.,..-------' 20__·_.

Signature of Applicant I Petitioner (circle one)

PETITIONER'S INFORMATION .. , . d Kenneth Nash Pettt10ner s pnnte name: -----'-·- - - - - - - - - - ' - - - - . Address: State Counsel for Offenders

P.O. Box 4005

HUn.tsville, TX 77342

(936) 437-5291

T eep I h one:-----~--------------

Fax: (936) 437-5279

'Z-0

Signed on August yf ,20~.

. Signature ofPetitioner .

:I I

20

ce FILED TH9.~',~;f,{Nr~8fi~~RK

AUG 25 201~

Case No. - - - - - - - - - - - - - - - - - - = T I M E Dlf_t0 BY ~ . DEPUlY .

Ex parte In the 213th Judicial

District Court of

Rodney Elnesto Smiley, Tarrant County, Texas Applicant

Memorandum in Support of

Application for a Writ of Habeas Corpus

Pursuant to Rule 73.1 (c), Rules of Appellate Procedure, Rodney Elnesto

Smiley (hereinafter "Applicant"), files this memorandum in support of his

application for a writ of habeas corpus, as follows:

Facts

On November 28, 1994, Applicant was convicted of the offense of Theft of

Property and sentenced to 25 years' confinement in the TDCJ-ID. See Exhibit A. 1

On August 30, 2001, Applicant was released from custody on parole supervision.

See Exhibit B-4. On October 26, 2006, and while on parole supervision, Applicant

was convicted of the offense of Injury to a Child and sentenced to 10 years'

confinement in the TDCJ-ID. See Exhibit C. On November 8, 2006, the Board of

Pardons and Paroles (BPP) revoked Applicant's parole. See Exhibit B-3. On

December 7, 2006, the TDCJ determined Applicant's mandatory-supervision

1 All references to exhibits herein are to those exhibits attached to the application for a writ of habeas corpus.

ce .• (.- .

release date on his old sentence as April 8, 2014, and his discretionary mandatory-

supervision release date on his new sentence as September 21, 2010. See Exhibit

D. Subsequently, Applicant was promoted in time-earning status, and his

mandatory-supervision release date on his old sentence was advanced to May 13,

2013. See Exhibit E-1. On January 14, 2013, the TDCJ notified Applicant that he

would be reviewed for discretionary mandatory-supervision release. See Exhibit F

and B-1. On April10, 2013, a parole panel of the BPP issued its decision to deny

discretionary mandatory-supervision release (DMS). See Exhibits G and B-1. The

TDCJ re-established Applicant's discretionary mandatory-supervision release date

on his new sentence as February 8, 2016. See Exhibit E-1.

Issues

1. Did the Texas Department of Criminal Justice and the Board ofPardons

and Paroles violate Applicant's right of due process because the TDCJ's notice

was given, and the BPP's vote was taken, more than 2 years after Applicant

became eligible for .discretionary mandatory-supervision release on his new

sentence?

2. Did the Texas Department of Criminal Justice and theBoard ofPardons I

I i and Paroles violate Applicant's right of due course because the TDCJ' s notice was

given, and the BPP's vote was taken, more than 2 years after Applicant became

. eligible for discretionary mandatory-supervision release on his new sentence?

2 21

Argument

As a preliminary matter, habeas-corpus claims alleging illegal confinement

arising after a felony conviction, but not contesting the validity of the judgments,

may be raised under Art. 11.07, Code of Criminal Procedure. Ex parte Geiken, 28

S.W.3d 553, 556 (Tex. Crim. App. 2000).

An inmate has a constitutional due-process right to 30 days' advance notice

. of the specific month.and year in which he will be reviewed for release on

mandatory supervision so that he has sufficient opportunity to submit materials on

his behalf. Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004) (holding

that notice to an inmate that he will be reviewed for mandatory-supervision release

at some unspecified time before his projected release date does not constitute

timely notice consistent with due process)? See also Ex parte Shook, 59 S.W.3d

174 (Tex. Crim. App. 2001); and Ex parte Barry, 109 S.W.3d 510 (Tex. Crim.

App. 2003). An inmate, however, may not be released on discretionary mandatory

supervision if a parole panel determines that: ( 1) his accrued good conduct time is

not an accurate reflection of his potential for rehabilitation; and (2) his release

would endanger the public. Section 508.149(b), Government Code.

/

[T]he onus is on a parole panel to invoke the review process and make its findings, not on the eligible inmate to request a review. Without a

2 The Court of Criminal Appeals has interpreted the due-course-of-law provision to provide the same procedural rights and protections as its federal analog. Fleming v. State, 341 S.W.3d 415, 416 (Tex. Crim. App. 2011) (Keasler, J., concurring).

3 22

ce

parole panel's two statutory findings, made only after timely due process notice to the inmate giving him an opportunity to submit materials, the Texas Department of Criminal Justice-CID must release an eligible inmate to mandatory supervision.

Ex parte Retzlaff, 135 S.W.3d at 51. Accord Ex parte Hill, 208 S.W.3d 462, 464

(Tex. Crim. App. 2006).

As stated above, the TDCJ's notice and the BPP's vote (to deny mandatory-

supervision release) occurred more than 2 years after Applicant's original

discretionary mandatory-supervision release date of September 21, 2010; therefore,

mandatory-supervision review process was untimely. Hence, Applicant is entitled

to immediate release on mandatory supervision. 3

Prayer

Wherefore, Applicant prays that the Court of Criminal Appeals grant his

application for a writ of habeas corpus and order the Texas Department of Criminal

Justice and the Board of Pardons and Paroles to immediately release him on

mandatory supervision from the sentence imposed in Cause No. 1011284D for the

felony offense of Injury to a Child.

3 Applicant's case is distinguishable from Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008) ~herein the Court of Crim.inal Appeals resolved the ."complex problem" involying a sentence ineligible for mandatory-supervision release stacked upon a sentence eligible for mandatory-supervision release.. In contrast, Applicant's old sentences and his new sentence are all eligible for mandatory-supervision release.·

4 23 'I

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Respectfully submitted,

State Counsel for Offenders Attorney for Applicant

/~,il~~ Kenneth Nash · Texas BarNo. 14811030 P. 0. Box 4005 Huntsville, TX 77342 Telephone no. 936-437-5291 Facsimile no. 936-437-5279 E-:-mail address: ken.nash@tdcj.texas.gov

Certificate of Compliance

In compliance with Rule 73.1(f), Rules of Appellate Procedure, I certify that

the foregoing computer-generated Memorandum in Support ofApplication for a

Writ ofHabeas Corpus is comprised of 83 7 words.

Kenneth Nash

Certificate of Service

I certify that a true and correct copy of the foregoing Memorandum in

Support ofApplication for a Writ ofHabeas Corpus was served upon opposing

counsel noted below by first-class United States mail on August~, 2014:

Joe Shannon, Jr. Tarrant County Criminal District Attorney Tim Curry Criminal Justice Center 401 West Belknap Fort Worth, TX 76196

Kenneth Nash

5 24

-···· (F\EV .. 10/·16/91)

TH2 STATE OF TEXAS F-9402594-PU ce

IN THE 291ST JUDICIAL DISTRICT \.JS. COURT OF RODNEY ELNESTO SMILEY DALLAS COUNTY, TEXAS

/

11

~UDGI_'1ENT ON PLEA OF GUILTY OR NOLO CONTENDERE BEFORE COURT ~ ..., WAIVER OF JURY TRIAL .

JULY TERM 7 A.D.? 1994 JUDGE PRESIDING: GERRY MEIER DATE OF JUDGMENT: 11/28/94

ATTORNEY ATTORNEY FOR STATE: B COX FOR DEFENDANT: RICK MAGNIS

OFFENSE CONVICTED OF: AHEFT OF PROPERTY OF THE VALUE OF $750 OR MORE, BUT LESS THAN $20~000

i

DEGREE: THIRD <ENHANCED> DATE OFFENSE CO~TTED: 02/08/94 \ --------------------------------------------------------------------------------------

CHARGING I NSTRUI'1ENT: INDICTMENT PLEA: GUILTY

TERI'1S OF PLEA BARGAIN <IN DETAIL)·: :OPEN

=·LEA TO ENHANCEMENT FINDINGS ON =·ARAGRAPH ( S) : PLED TRUE TO 2ND&3RD ENHANCEMENT: FOUND

=-INDINGS ON USE JF DEADLY WEAPON: NONE

)ATE SENTENCE /.· [ MPOSED : .____/ 11 /2f.: /94

=-UN I SHMENT AND =-LACE OF .· 25 YEARS :ot-JF I !\IEM!='Il.Pl"": CONF I NEM'ENT IN THE I NST I TUT I ONAL DIVIS I ON ~-· ·oF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE 11/28/94 . AND A FINE OF -.Q-

I ----------------------------------------------------~------------------~-r----------

1\ 'If1E CREDIT_!;:D: 062894--112::::94 'I / --------------------------------------------------------------------------~----------

1 :ON CURRENT UNLESS OTHERWISE SPECIFIED.

ON THIS. DAY, SET FORTH ABOVE THE ABOVE. STYLED AND NUMBERE:;:D CAUSE CAME 0 TRIAL. THE STAlE OF TEXAS AND DEFENDANT APPEARED BY AND THROUGH THE ABOVE AMED ATTORNEYS AND ANNOUNCED READY FOR TRIAL. DEFENDANT APPEARED IN PERSON IN H VOL. 198 PAGE 187 EXHIBIT

A 25

.OPE;N COLJF:T ~ ~·JHERE DEr(l····NT WAS NOT F:EF'RESENTE(·-···X COUNSEL DEFENDAI'H f:J\.JO!tJI Ni;JL Y. I NTEL.L I GENTLY . D VOLUNTARILY t.<JA I VED TH HT TO HEF'F~ESENTAT InN BY COUNSEl. DEFENDANT, t~·r RSON AND .IN W~ITING IN 0~~ COORT HAVING WAIVED' HiS· F\IGHT OF TRIAL BY JURY, At-..ID WHEF:E SHOvJN ABOVE THAT THE CHARGING INSTRUMENT vJAS BY INFORMATION INSTEAD OF INDICTMENT~ THE DEFENDANT DID, WITH THE CONSENT AND APPROVAL~F HIS ATTORNEY, OF THE ATTuRNEY FOR THE STATE, AND THE COURT. WAIVE HIS RIGHT TO F'FWSECUTION BY INDICTt'iENT ··AND AGF:EE TO BE TRIED ON AN AFi="IDAVIT AND INFORMATION; ALL SUCH WAIVERS, AGREEMENTS AND CONSENTS BEING IN WRITING AND FILED IN THE F'Ar'ERS OF THIS CAUSE PRIOF: TO THE DEFENDANT ENTERING HIS PLEA HEREIN, WAS DULY ARRAIGNED AND IN OPEN COURT ENTERED THE ABOVE PLEA TO THE CHARGE CONTAINED IN THE CHARGING INSTRUMENT~ AS SHOWN ABOVE. DEFENDANT WAS ADMONISHED BY THE COURT OF THE CONSEQUENCES OF THE SAID PLEA AND DEFENDANT PERSISTED IN ENTERING SAID PLEA, AND IT PLAINLY APPEARING TO THE COURT THAT DEFENDANT IS MENTALLY COMPETENT AND SAID PLEA IS FREE AND VOLUNTARY THE SAID PLEA WAS ACCEPTED BY THE COURT AND IS NOW ENTERED OF RECORD AS THE PLEA HEREIN OF DEFENDANT. DEFENDANT IN OPEN COURT~ IN WRITING HAVING WAIVED THE READING OF THE CHARGING INSTHUMENT AS SHOWN ABuVE THE APPEARANCE, CONFRONTATION AND CROSS-EXAMINATION OF WitNESSES! AND AGREED THAT THE EVIDENCE MAY BE STIPOLATED AND CONSENTED TO THE INTRODUCT ON OF TESTIMONY ORALLY, BY ~UDICIAL CONFESSION. BY AFFIDAVITS, llJRITTEN STATENENTS OF l.rJITNESSES AND ANY OTHER DOCUMENTAF:Y EVI_: DENCE AND SUCH WAIVER AND CONSENT HAVING BEEN APPROVED BY THE COURT IN WHITING AND FILED IN :fHE PAPERS OF THE· CAUSE· AND THE COURT HAVING HEARD DEFENDANT···s WAIVER OF THE READING OF THE CHARGIN~ INStRUMENT~ AS SHOWN ABOVE, DEFENDANT'S PLEA THERETO, THE EVIDENCE SUBMITTED AND THE ARL:tUMENT OF COUNSEL, IS OF THE OPINION FROM THE EVIDENCE SUBMITTED tHAT DEFENDANT IS GUILTY OF THE OFFENSE AS 5HOl•JN ABOVE AND THAT THE OFFENSE WAS CONMITTED BY SAID DEFENDANT ON THE DATE 3ET FORTH ABOVE. THE COURT FURTHER MAKES ITS FINDING AS TO DEADLY WEAPON AND RESTITUTION OR REPARATION AS SET FORTH ABOVE.

AND WHEN SHOWN ABOVE THAT THE CHARGING INSTRUMENT CONTAINS ENHANCE-

'iENT PARAGRAPH(S), WHICH WERE NOT WAIVED OR DISMISSEI:r+ THE COURT .. AFTER HEARING fHE DEFENDANT/S PLEA TO SAID PARAGRAPH(S)~ AS SET OU. ABOVE AND AFTER HEARING =-uF:THER EVIDENCE ON THE ISSUE OF PUNISHMt.NT, THE COURT 1"1AKES ITS FINDING AS 3ET OUT ABOVE;_ IF THUEt THE COURT IS OF THE OPINION AND FINDS DEFENDANT HAS 3EEN HERETOFOKE crn~VIC ED OF SAID OFFENSE(S) ALLEGED IN THE SAID ENHANCEMENT =·ARAGRAPH {S > AS MA 'i BE SHOWN ABOVE.

AND WHEN SHOWN ABOVE THAT THERE WAS A PLEA BARGAIN AGREEMENT, THE }EFENDANT WAS INFORMED AS TO WHETHER THE COURT WOULD . FOLLOW OR HE.JECT SUCH ~GREEMENT ~~ IF THE COURT REJECTED SUCH AGF£EMENT THE DEFENDANT WAS GIVEN AN ]PPORTUNITY TO l•JITHDRAW HIS PLEA PRIOR TO ANY FINDING ON THE PLEA-

WHEN IT IS SHOWN ABOVE THAT RESTITUTION HAS BEEN ORDERED BUT 7 "THE :OURT DETERMINES THAT THE INCLUSION OF THE VICTIM/S NAME AND ADDRESS lN THE JUDGMENT IS NOT IN THE BEST INTEREST OF THE VICTIM THE PERSON OR AGENCY JHOSE NAME AND ADDRESS IS SET OUT IN THIS JUDGEMENT WILL ACCEPT AND FORWARD THE ~ESTITUTION PAYMENTS TO THE VICTIM.

AND WHEN IT IS SHOWN BELOW THAT PAYMENT OF THE COSTS OF LEGAL )ERVICES PROVIDED TO THE T~E~~IANT IN THIS CAUSE HAS BEEN ORDEREia, "THE COURT ~INDS THAT THE DEFENDANT HAS THE FINANCIAL RESOURCES TO ENABLE.THE DEFENDANT TO JFFSET SAID COSTS IN THE AMOUNT ORDERED. .

THEREUPON THE SAID DEFENDANT WAS AS~ED BY THE COURT WHETHER HE HAD ;NYTHING TO SAY WHY SAID SENTENCE SHOULD NOT BE PRONOUNCED AGAINST HIM.:z..._AND HE tNSWERED NOTHING IN BAR THEREOF~ AND IT APPEARING TO THE COURT THAT Dt.rENDANT S MENTALLY COMPETENT AND UNDERbTANDING OF THE PROCEEDINGS.

· . IT IS THEREFORE CONSIDERED AND ORDERED BY THE· COURT IN THE 'RESa-tCE Of DEFENflANT, AND tHS ATTORNEY, THAT SAID .JUDGMENT As· SET FORtH ABDVE.7- S HEREBY IN ALL THINGS APPROVED AND CONFIRNED, AND THAT SAID DEFENDANT Bt::. ,IJJUDGED GUILTY OF THE OFFENSE AS SHOWN ABOVE, AND THAT SAID DEFENDANT BE 'UN I SHED IN ACCOF<:DANCE WITH THE PUNISHMENT SET FORTH ABOVE~ AND DEFENDANT IS ENTENCED TO A TERM OF IMPRISONMENT OR FINE OR BOTH.:z. AS St.T FORTH ABOVE.l.. AND EFENDANT SHALL BE DELIVERED BY THE SHERIFF TO THe. DIRECTOR OF THE INbTITU- IONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, OR OTHER ERSON LEGALLY AUTHORIZED TO RECEIVE SUCH CONVICTS FOR THE PUNISHMENT ASSESSED EREIN, AND SAID DEFENDANT SHALL BE CONFINED FOR THE ABOVE-NAMED TERM IN ACCOR-

)ANCE WiTH THE PROVISION --~.AW GOVERNING SUCH PUNT -(1. •TS. IT IS FU~ JR[tERED THAT THE DEFENDA't-....\ 1 THE FINE .COURT COST.-, TS AND EXPENSES _EGAL SERVICE PROVIDED BY ·,~E COURT APP6INTED ATTORNE)· . ~HIS CAUSE, 'IF ·~ ~NH RESTITUTION DR REPARATION. AS SET FORTH HEREIN. . · DEFENDANT IS HEREBY ORDERED REMANDED TO JAIL UNTIL SAID SHERIFF C JBEY THE DIRECTIONS OF THIS JUDGMENT.

FOLLOWING THE DISPOSITION OF THIS CAUSE THE DEFENDANT~s FINGERPRIN lAS, IN OPEN CDURTt PLACED UPON A CERTIFICATE OF FINGERPRINT. SAID CERTIFICAT~ S ATTACHED HERE 0 AND IS INCOHPORATED BY REFERENCE AS A PART OF THIS IUDGMENT.

COURT COSTS IN THE AMOUNT OF $124.50

JUDGMENT

.(.

CcrlTIFICATE OF THUMBPRINT

CAUSE NO. rq~-- oa set tt PLL THE STATE OF TEXAS IN THE -""Z'-1.0.._/'J_·f_ _ __

vs. DISTRICT COURT ~ ~rY1'u0/r QDd oG---/ &_ DALLAS COUNTY, TEXAS

Right Thumb* Defendant•s --~~~---- hand

THIS IS TO CERTIFY THAT THE FINGERPRINTS ABOVE ARE THE ABOVE.,: NAMED DEFENDANT• S FINGERPRINTS TAKEN AT THE TIME OF DISPOSITION OF TllE ABOVE STYLED AND NUMBERED CAUSE.

DONE IN COURT THIS d_L DAY OF ::...J.-1'---<>-1/-=-------' 191>=__. ~ /0''2._11-L

~ i:t.~~ BALF/DEPUTY SHERIFF J-S1 .

*Indicate here if print other than defendant's right thumbprint is placed in box:

left thumbpri~t left/right index finger

other,

29

. ·- . - - " - -" --

reRK···s. CERTIFICATE ce THE STATE OF TEXAS:

COUNTY OF DALLAS

I, BILL LONG, CLERK OF THE DISTRICT COURTS WITHIN AND FOR THE STA.TE AND COUNTY AFOF:ESAID, DO HEREBY ·cERTIFY THAT THE "ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY OF .JUDGMENT AND IMPOSITION OF SENTENCE IN CAUSE NO. F-9402594-PU ENTITLED THE STATE OF TEXAS VS. RODNEY ELNESTO SMILEY AS THE SAt1E APPEARS ON RECORD IN VOL. 1 98 PAGE 1B7 NOW ON FILE IN 1'1Y OFFICE.

GIVEN UNDER NY HAND AND SEAL OF OFFICE IN DALLAS COUNTY, TEXAS, THIS 29T!-:! !:JAY OF NOVEMBE.,t::~, 1994

BILL LONG DISTRICT CLERK DALLAS INTY,

\. I ·BY:

I - - _- - - - - - - ·- - - - - - - -·-·- ·_- . . . . . .- .- - - - - - - ( - - - - :·- - - - - .- - - . . _ _ _. _________________-----c.- 3) tdc01ftp·- PASSPORT • Tuesday, -&x ---------- - :- -· - :- - - - - - - - - - - · 13, 2014, 10:21:58 AM

:SSUKA25 TEXAS DEPARTMENT OF CRIMINAL JUSTICE 10:21:52 CLEMENCY AND PAROLE SYSTEM 05/13/14 MINUTES BROWSE SCREEN

'DCJID NUMBER: 00693698 SID NUMBER: 03361205 PIA NUMBER: 000000 ~pp NUMBER: NAME: SMILEY,RODNEY ELNESTO :URRENT STATUS: CURRENTLY IN ID :EL ACTN DATE PROCESS ACTN TYPE OF ACTION 02-19·-2014 CURRENTLY AN INMATE STLTR TP DATE ST~TUS LTR 02-18-2014 CURRENTLY AN INMATE DMS RECORD HAS NO ACTION TYPE 12-03-2013 REVIEW PROCESS PIMR RECORD HAS NO ACTION TYPE ' 12-02-2013 CURRENTLY AN INMATE NDMS NOTICE OF DMS REVIEW 04-11-2013 CURRENTLY AN INMATE . STLTR TP DATE STATUS LTR 04-10-2013 CURRENTLY AN INMATE DMS RECORD HAS. NO ACTION TYPE . 01-14-2013 REVIEW PROCESS NDMS NOTICE OF DMS REVIEW 12-18-2012 REVIEW PROCESS PIMR RECORD HAS NO ACTION TYPE 12-13-2012 CURRENTLY AN INMATE STLTR TP DATE STATUS LTR 12-12-2012 CURRENTLY AN INMATE SA RECORD HAS NO ACTION TYPE 11-13-2012 REVIEW PR0CESS PIMR RECO~D HAS NO ACTION :TYPE 06-05-2012 REVIEW PROCESS NTO BOARD VOTE 06-05-2012 REVIEW PROCESS CASEP MONTHLY CASE PULL . PFl=HELP PF2=BOARD ACTIONS MENU PF5=DETAIL PF3=CAPS MENU PF6=REFRESH PF7=SCROLL BACK PF8=SCROLL FORWARD PF10=CROSS REF 'PF12=TDCJ MENU. CLEAR=EXIT . HERE ARE MORE M~NUTES RECORDS TO.BE D~SPLAYED I

.,: 'l

II - '

EXHIBIT

6-1 30

I I

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CLEMENCY AND PAROLE SYSTEM 05/13/14 MINUTBS BROWSE SCREEN

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SSUKA25 TEXAS DEPARTMENT OF CRIMINAL JD~ ICE 10:22:02 CLEMENCY AND PAROLE SYSTEM 05/13/14 MINUTES BROWSE SCREEN

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SSUKA25 TEXAS DEPARTMENT OF CRIMINAL Ju;:, ICE 10:22:07 CLEMENCY AND PAROLE SYSTEM 05/13/14 .MINUTES BROWSE SCREEN

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ce.

/ASE NO. 1011284D

THE STATE OF TEXAS § IN THE 213TH DISTRICT

VS. § COURT OF RODNEY ELNESTO SMILEY § TARRANT COUNTY, TEXAS

JUDGMENT ON PLEA OF GUlLTY OR NOLO CONTENDERE BEFORE COURT . W AlVER OF JURY TRIAL

Judge Presiding HON. ROBERT K. GILL Date of Judgment OCTOBER 26, 2006 Attorney for State Assistant District District Attorney TIM CURRY Attorney SHANE LEWIS

I

Attorney for Defendant JOETTA KEENE Charging Instrument: INDICTMENT

Offense Date /Convicted Offense

AUGUST I, 20 I INJURY TO A CHILD WITH INTENT70 AUSE BODILY INJURY

~;· • Count • Plea

3RD ELEVEN GUILTY Findings on Deadly Weapon NONE Tenns of Plea Bargain 10 YRS IDTDCJ, WAIVE COUNTS ONE THROUGH TEN Plea to Enhancement Paragraph(s) NONE Plea to Habitual Paragraph(s) HABITUAL OFFENDER NOTICE- WAIVED BEFORE PLEA Findings· on Enhancement/ Habitual Paragraph{s) j NONE Date Sentence hnposed OCTOBER 26, 2006 Date to Commence : OCTOBER 26, 2006 Punishment : COUNT ELEVEN -TEN (10) YEARS Place of Confinanen/: INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE

Time Credited 260DAYS Court Costs $253.00 Reparation $1,000.00 Restitution NONE

RECOMMEND THAT APPOINTED COUNSEL FEES UNDER TEX. CODE OF CRlM. PROC., ANN., ARTICLE 26.05 OF $1,000.00 BE PAYABLE TO AND THROUGH THE DISTRlCT CLERK'S OFFICE OF TARRANT COUNTY, TEXAS, AS CONDIDON OF PAROLE.

On this day, set forth above, this cause came for trial and came the State of Texas by its above-named attorney, and the Defendant appeared in person and by the above-named attorney for the Defendant, or, where a Defendant is not·represented by counsel, that the Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel; and announced ready for tri::!, the Defendmt h:1.ving been heretofore :1.rraigned, or having waived arraignment in open court, and having agreed that the testimony may be stipulated in this· cause and the Defendant, his counsel, and the State's attorney having agreed in writing in open court to waive a jury in the trial of this cause and to submit this cause to the Court, and the Court having agreed to the same, the said attorney for the State read the instrument charging the offense as shown or the reading of the charging instrument having been waived by the Defendant in open court; the Defendant entered the above shown plea thereto; and it appearing to the Court that the Defendant is mentally competent and the plea is free and voluntary, and the Court having duly admonished the Defendant as to the consequences of such plea, including the range of punishment attached to the offense and the fact that any recommendation of the prosecuting attorney as to punishment is not binding on the Court, yet the Defendant persisted in entering such plea; said plea is by the Court receilled and now entered of record upon the minutes of the Court, is of the opi¢on and so finds that the said Defendant is guilty of the offense as confessed and set forth above.

And when shown above, that the charging instrument contains enhancement paragraph(s), which wert?;~4waived, """ "'''~ Dofmdmi lo hm h= ~•kiol p~•lo~ly of my fol=y m off=~ fo1 lho pwpo~ o f " " " - ' 75~ "'"""'

EXHIBIT

IIMmlifliliilfilliii~OOI f VOLUME PAGE A OF CASE NO. I011284D

e3a

___ .:;. _____ _______ . - -- ... ·-----. --- -· .... :. __________ , --~----:..__ ____.

CID #0267313

59B

JUDGEMENT

CERTIFICATE OF THUMBPRJNT

CAUSE NO 1011284

THE STATE OF TEXAS IN THE CRIMINAL

vs. DISTRICT COURT D213

SMILEY. RODNEY E TARRANT COUNTY,TEXAS

:.~ ..

Defendant';\( i @';'\. J-: hand Right .Thumb*

THIS IS TO CERTIFY THAT THE FINGERPRINTS ABOVE ARE THE ABOVE- NAMED DEFENDANT'S FINGERPRINTS TAKEN FOR THE ABOVE STYLED AND NUMBERED CAUSE•

. TAKEN ON TIDS dLO DAY OF 0c~JoJo.el2. , ~C) \o d--D~

JXJ·~

DEPUTY SHERIFF

. .

*Indicate here if print other than defendant's right thumbprints placed in box:

_ __cLeft thumbprint _ _Left/right index finger

- -Other

NAME RODNEY ELNESTO SMILEY OFFENSE SEXUAL ASLT CHILD (AGG) ADDRESS 532 CLAIRE CT DA1E 6/1/2003 Habitual ARLINGTON TX 76012 · I.P. TERRIKA DYKES .

RACE B SEX M AGE41 DOB 7/12/1964 CASENO. 1011284 DA1EFILED 2113/2006 AGENCY Fort Worth PO CID NO. 0267313 OFFENSENO. 05154991 COURT 213th District Court

INDICTMENT NO. 1011284 j)

INTIIENAMEANDBY AUTHORITYOFTIIESTA1EOFTEXAS: THE GRAND JURORS OF TARRANT COUNTY, TEXAS, duly elected, tried, empaneled, sworn, and charged to inquire of offenses committed in Tarrant County, in the State of Texas, upon their oaths do present in and to the 372nd DISTRICT COURT

of said County that RODNEY ELNESTO SMIT..EY, hereinafter called Defendant, in the County of Tarrant and State aforesaid, on or about the 1st day of June 2003, did

THEN AND TiffiRE INTENTIONAILY OR KNOWINGLY CAUSE TilE PENEffi.ATION OF TilE FEMALE SEXUAL ORGAN OF TERRIKA DYKES, A CHILD YOUNGER TilAN 14 YEARS OF AGE WHO WAS NOT TiiE SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER INTO HER FEMALE SEXUAL .. ORGAN,

COUNT TWO: AND IT IS FURTilER PRESENTED IN AND TO SAID COURT TIIAT TilE DEFENDANT IN TilE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JUNE, 2003, DID THEN AND TIIERE INTENTIONAILY, WITH TilE INJENTTO AROUSE OR GRATIFY THE SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING 11I.E FEMALE SEXUAL ORGAN OFTERRIKA DYKES, A CHILD YOUNGER TIIAN 17 YEARS AND NOT .THE SPOUSE OF TiiE DEFENDANT, . · .

COUNT TiiREE: AND IT IS FURTiiER PRESENTED IN AND TO SAID COURT TIIAT TilE DEFENDANT · IN TiiE COUNTY OF TARRANT AND·STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JUNE, .

2003, DID THEN AND TiffiRE INTENTIONAILY OR KNOWINGLY CAUSE THE PENEIRATION OF TilE ANUS OFTERRIKA DYKES, A CHILD YOUNGER TilAN 14 YEARS OF AGE WHO WAS NOT TilE SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER INTO HER ANUS,

COUNT FOUR: AND IT IS FURTiiER PRESENTED IN AND TO SAID COURTTIIAT TilE DEFENDANT IN TilE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JUNE, 2003, DID THEN AND TiffiRE INTENTIONALLY, WITH TilE INTENT TO AROUSE OR GRATIFY TilE SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACI' BY TOUCHING TilE ANUS OF TERRIKA DYKES, A CHILD YOUNGER THAN 17 YEARS AND NOT 1HE SPOUSE OF THE DEFENDANT, . .

COUNT FIVE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT TIIAT TilE DEFENDANT IN TilE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT Tiffi 1ST DAY OF JULY, 2003, DID THEN AND TiffiRE INTENTIONALLY OR KNOWLINGLY CAUSE Tiffi SEXUAL ORGAN OF, TERR.IKA DYKES, A CHILD YOUNGER TIIAN 14 YEARS OF AGE WHO WAS NOT THE SPOUSE OF SAID DEFENDANT TO CONTACT TilE SEXUAL ORGAN OF TilE DEFENDANT, COUNT SIX: ·AND IT IS FURTIIER PRESENTED IN AND TO SAID COURT TIIAT THE DEFENDANT IN THE COUNTY OFTARRANT AND STATE AFORESAID ON OR ABOUT TilE 1ST DAY OF JULY, 2003,

NAME RODNEY 'ELNESTO SMILEY CASE NO. 1011284 ce.

PAGE 2 of 3 DID THEN AND THERE INTENTIONALLY EXPOSE HIS PENIS TO TERRIKA -DYKES, A CHll..D YOUNGER 1HAN 17 YEARS AND NOT HIS SPOUSE, KNOWING SAID CHlLD WAS PRESENT, WITH THE INTENT TO AROUSE OR GRATIFY THE SEXUAL DESIRE OF SAID DEFENDANT,

COUNT SEVEN: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT TilE DEFENDANT INTHECOUNTYOFTARRANT AND STATEAFORESAIDON OR ABOUT THE 1ST DAY OF AUGUST, 2004, DID THEN AND THERE INTENTIONALLY OR KNOWINGLY CAUSE THE PENETRATION OF THE FEMALE SEXUAL ORGAN OF TERRIKA DYKES, A CHTI...D YOUNGER THAN 14 YEARS OF AGE WHO WAS NOT THE SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER IN HER FEMALE SEXUAL ORGAN,

COUNT EIGHT: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 1ST DAY OF AUGUST, 2004, DID THEN AND THERE INTENTIONALLY, WITH THE INTENT TO AROUSE OR GRATIFY THE SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING THE FEMALE SEXUAL ORGAN OF TERR1KA DYKES, A CHll..D YOUNGER TIIAN 17 YEARS AND NOT THE SPOUSE OF THE DEFENDANT,

COUNT NINE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 1ST DAY OF AUGUST, 2004, DID THEN AND TIIERE INTENTIONALLY OR KNOWINGLY CAUSE THE PENETRATION OF THE ANUS OF TERRIKA DYKES, A CHll.D YOUNGER THAN 14 YEARS OF AGE WHO WAS NOT THE SPOUSE OF SAID DEFENDANT BY INSERTING HIS FINGER INTO HER ANUS, ·

COUNT TEN: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THATTIIE DEFENDANT IN THECOUNTYOFTARRANTANDSTATEAFORESAIDONORABOUTTHE1STDAYOFAUGUST,· 2004, DID TiffiN AND TIIERE INTENTIONALLY, WITH THE INTENT TO AROUSE OR GRATIFY THE SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING THE ANUS OF TERRIKA DYKES, A CHll..D YOUNGER THAN 17 YEARS AND NOT THE SPOUSE OF THE DEFENDANT,

HABITUAL OFFENDER NOTiCE: AND IT IS FUR1HER P.RESENTED TO SAID COURT THATPRIOR TO THE COMMISSION OF THE OFFENSE OR OFFENSES SEf OUT ABOVE, THE DEFENDANT WAS FINALLY CONVICTED OF THE FELONY OFFENSE OF BURGLARY OF A BUll.DING, IN-THE 297TH CRIMINAL DISTRICT COURT OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 0341914D, ON AUGUST 29, 1988, AND, THAT PRIOR TO THE COMMISSION OF THE OFFENSE OR OFFENSES FOR · WHICH THE DEFENDANT WAS CONVICIED AS SEf OUT ABOVE, THE DEFENDANT WAS FINALLY CONVICTED OF THE FELONY OFFENSE OF BURGLARY OF HABITATION, IN THE 291ST nJDICIAL . · DISTRICT COURT OF DAlLAS COUNTY, TEXAS, IN CAUSE NUMBER F94-23105-U, ON MAY 9, 1994,

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NAME RODNEY ELNES10 SMILEY CASE NO. 1011284 (. '1. •• •

·... __,'

PAGE 3of 3

Filed (Cierk"s use only)

AGAINST TIIE PEACE AND DIGNITY OF TIIE STATE.

Criminal District Auorney TarrantCOuncy,Tex~ INDICTMENT- ORJGINAL

EPORT :· ITS40 9SO T. D.C.,- INSTITUTIONAL DIVISIIJ~!.,. 12/07/2006 49 ' . . ( TE TRACK~NG SYSTEM .. (1 '~ MMITMENT DATA FORM ~ PAGE 1

ID NO •... : 03361205 TDC NO: DD693698 PIA NO: DODD DO M1E ...... : SMILEY,RODNEY ELNESTO DOB: D7/12/1964 RACE: B SEX: M ECE IVED .. : Ol/3D/1995 UNIT .. : ND JOE F GURNEY ENT BEGN. : D6/28/1994 . L1 ET SENT .. : D025Y DOM ODD LEGISLATURE: 73RD OUT OF CUST. : 1588 IN EXP DT: D4/D8/2D14 MS CALC CD. : y BONUS TIME •. : 0 f.. X EXP DT: 11/D2/2023 PAR CALC CD: FLAT & GOOD TDC CALC PAR: D4/07/20D7

OFFENSE MAX. TERM YMD OFF DATE SENT DATE CC P COURT/COUNTY DESCRIPTION /SENT BEG CU L CAUSE /MIN EXP /MAX EXP /PAROLE /OUT OF CUST.

--------------------------------------------------------------------------

. . .

INJURY TO CHILD 0010Y OOM ODD 08/D1/20D4 1D/26/2D06 CC G 213 TARRANT WIT CAUSE BI 02/08/2006 JAIL GT:Y 1011284D CNT:11 09/21/2010 02/08/2016 04/07/2007 MSCLC: PRLCL:N

liL GOOD TIME CREDITED FROM SENTENCE BEGIN DATE llH/72ND/73RD LEGIS: MANDATORY SUPV' PROSPECT JT ELIGIBLE FOR SB1167 PER TDCJ BOARD POLICY J~sfit · ~MARKS •.• : 2-8 6G!RET'D FROM PAROLE STATUS FROM TARRANT COW/.-~· NEW IOYR CONV. OOC_4-4-20. JGT ALLOWED FROM 2-8-06 ONLY. LlW EFF 2-8-06. 11-16-06 HW . REC'D ·JCN CHANGING REARREST DATE FROM 02~os-b6 TO 01-24-06. CHANGING OOC FROM 4-4-20 TO 4-4-6. DENIED HB~649 MIDPOINT. KH 12-07-06

I[ il III

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CSIMF800/INI801 COMMITMENT INQUIRY ' 05/13/14 10:43:57 INMTCICS/KNA1251 /1FTP TDCJ-ID NO: 00693698 SIDNO: 03361205 . NAME: SMILEY,RODNEY ELNESTO APPL: STATUS: A RK VS S3 · #OFF: 04 OLD TDC#: 00592793 CNTY CONV: 057 . 73RD OFF-REC: 2321 PRJ RL: 02-08-2016 REC: 01-30-1995 MAX-TERM: 25Y OM OD PEN-REC: 031.030 MAX-EX: 11-02-2023 BEGIN: 06-28-1994 PAR-ELIG: 01-01-0001 INMATE TYPE: ID HB1433: N HB1433 VOTE:

DYNAMIC RISK ASSESSMENT: . TYC: HB1433 MIN EXP: · OFFCD: 23210000 THEFT PROP 0/750 L/20,000 3DEG 73RD PENAL:031.030 MS:Y PLEA:G CAUSE:F-9402594-PU CNT:OO OFF:02-08-1994 CC CNTY OFF:057 CNTY/CRT:057 291 MAX TERM: 25Y OM OD BEG:06-28-1994 MIN EXP:05-13-2013 MAX:ll-02-2023 PAR'ELIG:Ol-01-0001 SENTENCED:ll-28~1994 HB1433:N HB1433 VOTE: HB1433 MIN EXP: REST: N OFF TDCNO: 00693698 CTO DATE 01-01-0001 OFFCD: 13990043 INJURY TO CHILD WIT CAUSE BI 3DEG 73RD PENAL-:022.040 MS:Y PLEA:G CAUSE:1011284D CNT:11: OFF:-08-01-2004· CC CNTY OFF:220 CNTY/CRT:220 213 MAX TERM: lOY OM OD BEG:02-08-2006 MIN EXP:02-08-2016 MAX:02-08-2016 PAR ELIG:Ol-01-0001 SENTENCED:l0-26-2006 HB1433:Y HB1433 VOTE:DMS HB1433 MIN EXP:04-14-2010 REST: N OFF TDCNO: 00693698 ·cTO DATE 01-01-0001 PF7:UP,PF8:DOWN,.PF2:TOP OF LIST,OR NEXT REQUEST/TDC - - - - - - - OR SID - - - - - - -

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~---~-~~~-~_!_t:_~--=-;- P~-~--~-~-~~!_-----(·- ____ _------:-----------._T_~e. s da ¥(.~[_} 3 ,~~-'--~.0 ~-!~__:__1_?___~~-- :SIMF800/INI801 COMMITMENT INQUIRY 05/13/14 10:44:05 INMTCICS/KNA1251 /1FTP TDCJ-ID NO: 00693698 SIDNO: 03361205 NAME: SMILEY,RODNEY ELNESTO APPL: STATUS: A RK VS S3 #OFF: 04 OLD TDC#: 00592793 CNTY CONV: 057 73RD OFF-REC: 2321 PRJ RL: 02-08-2016 REC: 01-30-1995 MAX-TERM: 25Y OM OD PEN-REC: 031.030 MAX-EX: 11-02-2023 BEGIN: 06-28-1994 PAR-ELIG: 01-01-0001 INMATE TYPE: ID HB1433: N HB1433 VOTE:

DYNAMIC RISK ASSESSMENT: TYC: HB1433 MIN OFFCD: 22090000 BURG OF HABITAT 1DEG 70TH PENAL:030.020 MS:Y PLEA:G CAUSE:F91-31080-P CNT:OO OFF:04-16-1991 CC CNTY OFF:057 CNTY/CRT:057 203 MAX TERM: 15Y OM OD BEG:05-24-1991 MIN EXP:09-22-2008 MAX:04-01-2012 PAR ELIG:01-01-0001"SENTENCED:06-05-1991 HB1433:N HB1433 VOTE: HB1433 MIN EXP: REST: N OFF TDCNO: 00592793 DISCHARGED 04-01-2012 OFFCD: 22090000 BURG OF HABITAT 1DEG ENH 70TH PENAL:030.020 MS:Y PLEA:G CAUSE:F91-41655-HP CNT:Q-0 OFF:04-02-199i CC CNTY OFF:057 CNTY/CRT:057 203 MAX TERM: 15Y OM OD BEG:OS-24-1991 MIN EXP:09-22-2008 MAX:04-01-2012 PAR ELIG:01-01-0001 SENTENCED:06-05-1991 HB1433:N HB1433 VOTE: HB1433 MIN EXP: REST: N OFF TDCNO:. 00592793 · DISCHARGED 04-01-2012 'F7:UP,PF8:DOWN,PF2:TOP OF LIST,OR NEXT REQUEST/TDC OR·SID - - - - :No OF OFFENSES; ALL OFFENSES 'HAVE BEEN .DISPLAYED

EXHIBIT

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~CTION DATE: 01/14/2013

~RD DATE: 05/12/2013

3IGNATURE DATE: 01/29/2013

~DDITLONAL INFORMATION .DEADLINE: 02/28/2.013

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:OMMENTS: NOTICE OF INIT DISCRETIONARY MAND. REVIEW AUTOMATICALLY. (NOTICE OF DMS)

'F1=HELP . PF3=PREV MENU ·PF5=MINUTES PF12=TDCJ MENU CLEAR= EXIT REQUESTED MINUTES DETAIL IS DISPLAYED.

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~EASONS: 9D1 9D2 1D 2D 5D )PEC COND: - - - - - - - - - - - - · - - - - - - - - - - - - - -

"Z" COUNTIES: "A" COUNTY:

:OMMENTS:

lFl=HELP . ' PF3=PREV MENU PF5=MINUTES PF12=TDCJ MEN:U CLEAR='EXIT.

REQUESTED MINUTES DETAIL. IS DISPLAYED.

EXHIBIT

c, 47

48

~tate <!Coun9'el for ®ffenber9'

1!1 :IDibision of 'Oi:exas :roepartment of QJ:riminal3Jnstice P.O. Box 4005

Huntsville, TX 77342-4005 FILED (936) 437-5203 THOMAS A WILDE~.J>JST. CLERK TARRANT COUN I T, TEXAS

August 20, 2014 AUG 2~ 2014

Tarrant County District Clerk's Office 401 W. Belknap Ft. Worth, TX 76196 TIME BY

Jilifl _____ DEPUTY

Re: Tlte State of Texas v. RodneyElnesto Smiley Cause No. 1011284D in tlte 213tlt Judicial District Court of Tarrant County, Texas

Dear Sir or Madam:

Enclosed, please find original and two copies of Mr. Smiley's Art. 11.07 Application for Writ of Habeas Corpus with reference to Cause No. 1011284D. ·

Please forward a file stamped copy of this application to the Tarrant County District Attorney's Office as provided in Art. 11.07, Sec. 3. Please return a file-stamped copy of the application to the undersigned in the enclosed stamped envelope.

Thank you for your courtesies regarding this matter.

Sincerely,

Is/ Kenneth Nash Kenneth Nash Appellate Section Chief

KNA/lmm Enclosures

cc: Rodney Elnuesto Smiley TDCJ# 00693698 Estes Unit 1100 Highway 1807 Venus, TX 76084

ce. ce

~tate (!Counsel for <l&ffenbers I1I IDibision of m:cxi15 ?Dcpilrtmcnt of <!rriminn131usticc

P.O. Box 4005

Huntsville, TX 77342-4005 (936) 4:37-5203. . . FILED .

THOMAS A WILDE~,.J),IST. CLERK August 20, 2014 TARRANT COUI'II T. TEXAS

Tarrant County District Clerk's Office AUG 2.:1 2014 401 W. Belknap TIME j: tf (p Ft. Worth, TX 76196 BY 13 R - DEPUTY Re: The State of Texas v. Rodney Elnesto Smiley Cause No. C-213-010241-1011284-A in the 213tlz Judicial District Court of Tarrant County, Texas

Dear Sir or Madam:

Enclqsed, please find original and two copies of Applic~nt's Memorandum in Support of Application for a Writ of Habeas Corpus with reference to Cause Number C-213-010241-1011284-A.

By copy of this letter, I am forwarding a copy of same to Mr. Joe Shannon, Jr., attorney for the state. Please return a file..:.stamped copy of.the memorandum to the undersigned in the enclosed stamped envelope.

Thank you for your courtesies regarding this matter. If there are any questions, please contact undersigned counsel. .

. Sincerely, 5}'2-5/w!L-f-. Is/ Kenneth Nash Kenneth Nash pev ehot1G V'~

Appellate Section Chief \'\J.rittl JfeMVIcfill f'(a£h, Ph: (936) 437-5291 E-Mail Address: Kenneth.Nash@tdcj.texas.gov ·-n/)~ JV18rvJ~tV'/lt~!~S I

cAY~ 6uA.?t~Dr-h 114 uocuM'd; · KNA/jma Enclosures w ~ rwvJ "fJ " .

wwr. ~:!_;~ 1 It' age 49

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cc: Joe Shannon, Jr.

Tarrant County Criminal District Attorney Tim Curry Criminal Justice Center 401 West Belknap Fort Worth, TX 76196

cc: Mr. Rodney Elnesto Smiley TDCJ# 00693698 Estes Unit 1100 Highway 1807 Venus; TX 76084

2JPage 50

,·~ State Counsel for Offenders -. ···~~.,~··· ·'P.o. Box 4005 Huntsville, TX 77342 ATTN: Appellate Section ... :· ...

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Tarrant County District Clerk's Office '·40!W. Belknap· -- :·- ·{

Ft. Worth, TX 76196

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UNITED STLITES POSTLILSERVICE

Visit us at usps.com

Label107, January 2008

52

Writ Number: C-213-010293-1011284-B

213TH DISTRICT COURT

OF

TARRANT COUNTY, TEXAS

EX PARTE

RODNEY ELNESTO SMILEY

WAIVER OF SERVICE

Now comes Joe Shannon, Jr., Criminal District Attorney of Tarrant County, Texas and hereby acknowledges that he has this date, August 25, 2014, received from the District Clerk a copy of the petition for Writ of Habeas Corpus filed in the above entitled and numbered cause and he hereby waives delivery to him of said petition by certified mail.

It is further acknowledged that the answer to this petition, if any, will be filed within fifteen (15) days from this date.

JOE SHANNON, JR. CRIMINAL DISTRICT ATTORNEY

TARRANTCOUNTY, TEXAS

FILED

THOMAS A. WILDER, DIST. CLERK TARRANTCOUNTY,TEXAS

August 25, 2014

·~

2

:24

Tm~e----~~~--------- By -----"'!.....:....l£<'--"------'' Deputy

FILED

THOMAS A WILDER, DIST. CLERK TARRANT COUNTY, TEXAS

SEP 0.~14

C-213-010293-1011284-B

TIME BY

~

EX PARTE § IN THE 213th JUDICIAL DEPUTY § § DISTRICT COURT OF §

RODNEY ELNESTO SMILEY § TARRANT COUNTY, TEXAS

STATE'S RESPONSE TO APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

C01\1ES NOW THE STATE OF TEXAS, by and through her Tarrant County

Criminal District Attorney, and in opposition of the Application for Writ of Habeas

Corpus respectfully states the following to the Court based on its information and

belief:

I. HISTORY OF THE CASE

The applicant, RODNEY ELNESTO SMILEY ("Applicant"), pled guilty,

pursuant to a plea agreement, to the third degree felony offense of injury to a child

with intent to cause bodily injury. See Judgment, No. 1011284D. In accordance with

the plea agreement, the State waived the habitual offender notice and the trial court

sentenced him to ten years confinement in the Texas Department of Criminal Justice

- Institutional Division. See Judgment.

SCANNED 53

Applicant did not appeal his conviction. See Criminal Docket Sheet, No.

1011284D.

Applicant's first application for writ of habeas corpus was dismissed for non-

compliance on August 6, 2014. See Ex parte Smiley, WR-31,454-02, No. C-213-

010241-1011284-A (Tex. Crim. App. Aug. 6, 2014) (not designated for publication).

II. APPLICANT'S ALLEGATIONS

Applicant alleges his confinement is illegal because ( 1) his rights to due

process was violated when TDCJ's notice was given and BPP's vote was taken more

than 2 years after he became eligible for mandatory supervision release and (2) his

due course of law rights were violated when TDCJ's notice was given and BPP's

vote was taken more than 2 years after he became eligible for mandatory supervision.

See Application, p. 6-9.

III. NECESSITY FOR AN EVIDENTIARY HEARING & EXPANSION OF THE RECORD

There is no need for an expansion of the record. Applicant's grounds for relief

can be resolved based on the record before this Court. Applicant need NOT be

brought back to Tarrant County for a hearing.

2 54

IV. ARGUMENT AND AUTHORITIES

A. General Writ Law

In a habeas corpus proceeding, the burden of proof is on the applicant. Ex

parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). An applicant "must prove by

a preponderance of the evidence that the error contributed to his conviction or

punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). In

order to prevail, the applicant must present facts that, if true, would entitle him to the

relief requested. Ex parte Maldonado, 688 S.W.2d 114 (Tex. Crim. App. 1985).

Relief may be denied if the applicant states only conclusions, and not specific facts.

Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an

applicant's sworn allegations alone are not sufficient to prove his claims. Ex parte

Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).

B. Applicant's first and second grounds for relief should be DISMISSED AS MOOT because he has already been reviewed, and denied, twice for discretionary mandatory supervision since the alleged error.

Applicant alleges that he should have been considered for discretionary

mandatory supervision in 2010, but he wasn't. See Application, p. 6-9. Applicant

admits that he was, however, considered for, and denied, release to discretionary

mandatory supervision in April, 2013. See Application, p. 7, 9; Memorandum,

Exhibits B-1, G. Applicant was also considered for, and denied, release discretionary

3 55

ce

mandatory supervision in Ferbruary, 2014. See Attachment A: Parole Information

Review, No. 00693698.

While Applicant may have had a claim from 2010 to 2012, the relief to which

he would have been entitled was immediate review for mandatory supervision. See,

e.g., Ex parte Retzlaff, 135 S.W.3d 45, 51 (Tex. Crim. App. 2004) ("Given the

repeated failures to provide adequate and timely notice to this particular applicant, we

conclude that applicant is entitled to the specific habeas corpus relief that he has

requested- a new review 'as soon as possible.'"). However, as Applicant has been

reviewed, and denied, release to mandatory supervision twice since then, Applicant's

claim that he was not timely considered for release to mandatory supervision is now

moot. See, e.g., Ex parte Ramos, 2004 WL 2241000, *2 (Tex. Crim. App. Sept. 29,

2004) (not designated for publication) ("His constitutional claim, though previously

valid, is now moot. Accordingly, we dismiss the application"). 1

Applicant's grounds should be DISMISSED AS MOOT.

1 Because unpublished opinions "must not be cited as authority," this case is included only for precedential value.

4 56

V. CONCLUSION

Wherefore, premises considered, the State prays that this Court recommend

that Applicant's application for writ of habeas corpus be DISMISSED AS MOOT.

Respectfully submitted,

JOE SHANNON, JR. Criminal District Attorney Tarrant County

Ai:Idrea Jacobs State Bar No. 24037596 401 West Belknap Fort Worth, TX 7 6196-020 1 Phone: 817/884-1687 Facsimile: 817/884-1672

CERTIFICATE OF SERVICE

A true copy of the above has been mailed to Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas 77342 on this the 9th day of September, 2014.

Mdrea Jacobs

CERTIFICATE OF COMPLIANCE

I certify that the total number of words in this State's Response, combined

with the accompanying State's Proposed Findings of Fact and Conclusions of Law, is

1818 words as determined by Microsoft Office Word 2010.

~ Andrea Jacobs

5 57

TDCJ Offender Details

ce

http://offender.tdcj.state.tx.us/OffenderSearch/reviewDetail.action?s ...

[EJ TDCJ Home - New Offender Search

Name: SMILEY,RODNEY ELNESTO SID Number: 03361205 TDCJ Number: 00693698

Parole Review Information

Parole Review Status Not in Parole Review

The offender is currently not in the review process.

Last Parole Decision Denied on 02/18/2014

OMS (02/2015)- Deny release to Discretionary Mandatory Supervision and set for next review. Denial reason(s): 901, 902, 1D, 20, 50

* Note: One or more of the components indicated in each paragraph may apply, but only one is required for denial (D).

1D CRIMINAL HISTORY- THE RECORD INDICATES THAT THE INMATE HAS REPEATEDLY COMMITTED CRIMINAL EPISODES OR HAS A PATTERN OF SIMILAR OFFENSES THAT INDICATES A PREDISPOSITION TO COMMIT CRIMINAL ACTS WHEN RELEASED; OR THE RECORD INDICATES THAT THE INMATE IS A LEADER OR ACTIVE PARTICIPANT IN GANG OR ORGANIZED CRIMINAL ACTIVITY; OR THE RECORD INDICATES A JUVENILE OR AN ADULT ARREST OR INVESTIGATION FOR FELONY AND MISDEMEANOR OFFENSES.

2D NATURE OF OFFENSE- THE RECORD INDICATES THAT THE INMATE COMMITTED ONE OR MORE VIOLENT CRIMINAL ACTS INDICATING A CONSCIOUS DISREGARD FOR THE LIVES, SAFETY, OR PROPERTY OF OTHERS; OR THE INSTANT OFFENSE OR PATTERN OF CRIMINAL ACTIVITY HAS ELEMENTS OF BRUTALITY, VIOLENCE, OR CONSCIOUS SELECTION OF VICTIM'S VULNERABILITY SUCH THAT THE INMATE POSES A CONTINUING THREAT TO PUBLIC SAFETY; OR THE RECORD INDICATES USE OF A WEAPON.

50 ADJUSTMENT DURING PERIODS OF SUPERVISION -THE RECORD INDICATES UNSUCCESSFUL PERIODS OF SUPERVISION ON PREVIOUS PROBATION, PAROLE, OR MANDATORY SUPERVISION THAT RESULTED IN INCARCERATION, INCLUDING PAROLE- IN-ABSENTIA REVOCATIONS.

901 DISCRETIONARY MANDATORY SUPERVISION -THE RECORD INDICATES THAT THE

1 of2 9/9/20

TDCJ Offender Details

(• ce http://offehder.tdcj.state.tx.us/OffenderSearch/reviewDetail.action?s ...

iNMATE'S ACCRUED GOOD CONDUCT TIME IS NOT AN ACCURATE REFLECTION OF THE INMATE'S POTENTIAL FOR REHABILITATION.

9D2 DISCRETIONARY MANDATORY SUPERVISION -THE RECORD INDICATES THAT THE INMATE'S RELEASE WOULD ENDANGER THE PUBLIC.

Next Parole Review Date 0212015

... Ba~::k . .

The Texas Department of Criminal Justice updates this information regularly to ensure that it is complete and accurate, however this information can change quickly. Therefore, the information on this site may not reflect the true current location, status, scheduled termination date, or other information regarding an offender.

For questions and comments, you may contact the Texas Department of Criminal Justice, at (936) 295-6371 or webadmin@tdcj. state. tx. us. This information is made available to the public and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution.

New Offender Search TDCJ Home Page

I[ 'I

59

2 of2 9/9/2014 11:10 AM

THOMAS A FILED

! TARRANfb~Q~'TYDIST. CLERK , TEXAs

C-213-010293-1011284-B S~ fll12D14 TIME G:·fd

EX PARTE § IN THE 213th JUDI~~ :Jt:: - DEPUTY § § DISTRICT COURT OF §

RODNEYELNESTOSNOLEY § TARRANT COUNTY, TEXAS

STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT AND CONCLUSIONS OF LAW

The State proposes the following Memorandum, Findings of Fact and Conclusions of Law regarding the issues raised in the present Application for Writ of Habeas Corpus.

MEMORANDUM

The applicant, RODNEY ELNESTO SJ\1ILEY ("Applicant"), alleges that he

is being unlawfully confined ( 1) his rights to due process was violated when TDCJ' s

notice was given and BPP' s vote was taken more than 2 years after he became

eligible for mandatory supervision release and (2) his due course of law rights were

violated when TDCJ's notice was given and BPP's vote was taken more than 2 years

after he became eligible for mandatory supervision. See Application, p. 6-9.

In light of Applicant's contentions and the evidence presented in the Writ

Transcript, the Court should consider the following proposed findings of fact and

conclusions of law:

SCANNED 60 i II

' ''

FINDINGS OF FACT

General Facts

1. Applicant pled guilty, pursuant to a plea agreement, to the third degree felony offense of injury to a child with intent to cause bodily injury. See Judgment, No. 10112840.

2. In accordance with the plea agreement, the State waived the habitual offender notice and the trial court sentenced him to ten years confinement in the Texas Department of Criminal Justice -Institutional Division. See Judgment.

3. Applicant did not appeal his conviction. See Criminal Docket Sheet, No.

1011284D.

4. Applicant's first application for writ of habeas corpus was dismissed for non-

compliance on August 6, 2014. See Ex parte Smiley, WR-31,454-02, No. C- 213-010241-1011284-A (Tex. Crim. App. Aug. 6, 2014) (not designated for publication).

Mandatory Supervision

5. Applicant alleges that he was not timely reviewed for release to mandatory supervision in 2010. See Application, p. 6-9.

6. Applicant was reviewed for release to mandatory supervision in April, 2013.

See Application, p. 7, 9; Memorandum, Exhibits B-1 and G.

7. Applicant was reviewed for release to mandatory supervision in February, 2014. See State's Response, Attachment A: Parole Information Review, TDCJ-ID No. 00693698.

8. Applicant was denied release to mandatory supervision in 2013 and 2014. See Application, p. 7, 9; Memorandum, Exhibits B-1 and G; State's Response, Attachment A.

9. Applicant is set for review for release to discretionary mandatory supervision in February, 2015. See State's Response, Attachment A, p. 1, 2.

2 61

10. Because Applicant has been reviewed for release to mandatory supervision twice since the date he alleges he was not timely reviewed, Applicant's claims are MOOT.

CONCLUSIONS OF LAW

General Law

1. In a habeas corpus proceeding, the burden of proof is on the applicant. Ex parte Rains, 555 S.W.2d 478 (Tex. Crim. App. 1977). An applicant "must prove by a preponderance of the evidence that the error contributed to his conviction or punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001 ).

2. Relief may be denied if the applicant states only conclusions, and not specific facts. Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an applicant's sworn allegations alone are not sufficient to prove his claims. Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).

Mandatory Supervision

3. "Given the repeated failures to provide adequate and timely notice to this particular applicant, we conclude that applicant is entitled to the specific habeas corpus relief that he has requested - a new review 'as soon as possible."' Ex parte Retzlaff, 135 S.W.3d 45, 51 (Tex. Crim. App. 2004).

4. Because Applicant claims he was not given a timely review for release to mandatory supervision, the relief would be a new review as soon as possible.

5. Because Applicant has been afforded two reviews for release to mandatory supervision since the date he complains he was denied timely review, his claims are MOOT.

6. This Court recommends that Applicant's first ground for relief be DISMISSED AS MOOT.

7. This Court recommends that Applicant's second ground for relief be DISMISSED AS MOOT.

3 62 li

WHEREFORE, the State prays that this Court adopt these Proposed Findings

of Fact and Conclusions of Law and recommend that Applicant's application be

DISMISSED AS MOOT.

Respectfully submitted,

JOE SHANNON, JR. Criminal District Attorney Tarrant County ~ Andrea Jacobs Assistant District Attorney State Bar No. 24037596 401 West Belknap Fort Worth, TX 76196-020 1 Phone: 817/884-1687 Facsimile: 817/884-1672

CERTIFICATE OF SERVICE

A true copy of the above has been mailed to Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas 77342 on or before the 9TH day of September, 2014.

Andrea Jacobs

CERTIFICATE OF COMPLIANCE ,, 1

' The total number of words in this State's Proposed Findings of Fact and

Conclusions of Law, combined with any State's Response, is 1818 words as

determined by the word count feature ofMicrosoft Office Word 2010.

Andrea Jacobs

4 63

64

C-213-010293-1011284-B

EX PARTE § IN THE 213th JUDICIAL § § DISTRICT COURT OF §

RODNEYELNESTOSNULEY § TARRANT COUNTY, TEXAS

ORDER

The Court adopts the State's Memorandum, Findings of Fact and Conclusions of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY ("Applicant") requests be DISNUSSED AS MOOT. The Court further orders and directs:

I. The Clerk of this Court to file these findings and transmit them along with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by law.

2. The Clerk of this Court to furnish a copy of the Court's findings to Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon. Kenneth Nash, at State Counsel for Offenders, P.O. Box 4005, Huntsville, Texas 77342 (or to Applicant's most recent address), and to the appellate section of the District Attorney's Office.

SIGNED AND ENTERED this _ _ day of _ _ _ _ _ _ _ _, 2014.

JUDGE PRESIDING

• C-213-010293-1011284-B "- •

TIME~

FILED

HOMAS A WILDER, DIST. CLERK TARRANT COUNTY, TEXAS

SEP 18 2014

v

a..· D c::: ./

BY~-.~--~~""?'~-0-E-PUTY__...

EX PARTE § IN THE 213th JUDICIAL § § DISTRICT COURT OF §

RODNEYELNESTOSN.ULEY § TARRANT COUNTY, TEXAS

ORDER

The Court adopts the State's Memorandum, Findings of Fact and Conclusions of Law as its own and recommends that the relief RODNEY ELNESTO SMILEY ("Applicant") requests be DISM1SS~J),~S M:oor.. The Court further orders and directs:· . f. < .. The Clerk of this Court to file th~se frridfugs ancl transmit them along with the Writ Transcript to the Clerk of the CoUrt of Criminal Appeals as required by law. ; •,.

2. The Clerk of this Court to furnish a copy of the Court's findings to Applicant, Mr. Rodney Elnesto Smiley, by and through his attorney of record, Hon. Kenneth Nash; at State Counsel for Offenders, P;O. Box 4005·, Huntsville, Texas 77342 {or to Applicant's most recent' address), and to the appellate section of the District Attorney's Office.

'•. ; >

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65

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66

':' .· .··.

Certified True Copy

. ; !

THE STATE OF TEXAS · ' ) ~ .

COUNTY OFTARRANT § ·.:.·

I, Thomas A .. Wilder, Clerk of the District Courts of Tarrant County, Texas, do hereby certifY that the above and foregoing is a true and co~ectcdpy ALL PROCEEDINGS HAD.

of . . .

In Writ Number: C-21,3-010293-1011.284-B

EX PARTE: :Jl~DNEY ELNESTO SMILEY vs.

THE STATE OF TEXAS

as the sa.rrie appears on the file and/or record in my said office.

GIVEN UNDER MY HAND and seal of Said Court at office in the City of Fort. Worth, Tarrant County, Texas, this the z.? , day of~~.D.25V7 7£ .

. :.. :: ::

----'-------'----"-.~T~H=O=l\1A,S A. WIL='D=E=~R~. ....;..._-....,...----

CLERK, DISTRICT COURTS, TA~NT COUNTY, TEXAS