Smith, Robert Lee

• Court: Court of Appeals of Texas
• Decided: September 2, 2015
• Docket: WR-22,772-05
• Status: Published

Opinion

INMATE'S DECLARATION

, am the applicant I petitioner (cirCle one) and being presently incarcerated in /.&A/kL Cowiii~Y ' , declare under penalty of perjury that, according to my belief, the facts stated in the above application are true and correct. ...

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MOTION FOR LEAVE TO FILE IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN, TEXAS

ROBERT LEE SMITH, NOS:961276 & 966324 APPLICANT, vs. DISTRICT CLERK, HARRIS COUNTY I TEXAS RESPONDENT I

MOTION FOR LEAVE TO FILE \ APPLICATION FOR MANDAMUS

TO THE COURT OF CRIMINAL APPEALS OF TEXAS: NOW COMES ROBERT LEE SMITH. aoolicant. complaininq of District Clerk of ' Harris. Countv. Texas Resoondent. and oursuant to Rule 211 of the Texas Rule of Appellate p~cedure in criminal cas~s moves this court to Grant applicant leave to file this application for a Writ of Mandamus tendered contemporaneous- ly with this motion. Applicant prays that the motion be Granted, the said application for Mandamus be filed and set down for a hearing, that the relief requested be qranted, and for other relief, general and special, including a stay of the proceeding . below until the matters complained of in said application are cured.

Ellis 980 Huntsville,Texas 77343

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above motion for leave to file for Mandamus was delivered or mailed to Resoondent at Resoondentis 'this,?J aav of 5-eo.f:.e.Pnb£/L , ,2o1s:

I'

I

~ '· IN THE COURT ' OF CRIMINAL .APPEALS OF TEXAS !

AT AUSTIN,TEXAS

Robert Lee Smith Nos:961276 & 966324 Applicant, Vs. District Clerk., Harris Countv. Texas Resoondent.

APPLICATION FOR MANDAMUS

TO THE HONORABLE. COURT OF CRIMINAL APPEALS OF TEXAS: ' NCM COMES ROBERT LEE SMITH. APPLICANT.ann asks t.his court to issue a Writ of Mandamus to the District Clerk, of Harris County, Texas respondent, to require the respondent describe relief requested and in support of this appli- cation would show the Court the following; That every since jury trial and on appeal applicant has been informing the respondent about all records along with transcripts, to allow applicant his constitutional rights to prepare for his appeal under the Six Amendment of the United Stat~~-~ns~i-~~.!:~~12..' Due Process Law and eaual Protection. I- FACTUAL BACKGROUND

Applicant was tried for the offense of aqqravated sexual assault <:~·~-~I:!_i_l_?_i!:!_

a case stvled, The State___ ?!__T~x:.::a:.::s_..:..V::::s..:..._....:A:..:.P~::JP~::.:l:..:l::.:.c::;;:a:::n=t' Numbers 961276 & 9.6.6324, in the 184th. Judicial District Court Of Harris County, Texas. The Indic~- --- ---·- ------- --- ment was returned ~~~--24 · day of October, 2003. '!'rial was begun on the 3 day of August,2003, and completed on the 15 day of November,2003. A Jury ·-·---- ---- found applicant guilty and 1assessed punishment at fifty(50)years concurrent '7•

in the Texas Department Of Corrections (see exibi t 'b' attached hereto.) Notice of Appeal was timely filed on the 28 day of November 2005. ('see lm' all exibits attached hereto) Aplicant filed defendant(applellant's request for a transcrip- tion of the Reoorter's ·Notes(see exibits A-B-D-E-F attached hereto). The onlv respondent response was held about request·on Feburary 28,2008,(see exibit C attached hereto). Subsequently, the court reporter has refused to prepare the transcript, contending that. the applicant was · not indigent. (see exibits ~~~· attached hereto) Applicant subseqvently requested the trial court to enfo-

(l). rce his order(see exibit E.F.attached hereto). But the trial court has refused to do so. II.

REQUEST FOR RELIEF

Applicant requests in this application that this court~·direct respondent to order the court reporter to prepare copy of the trial proceedings below without charge to applicant, as required by law. III. JURISDICTION

This court has iurisdiction to consider this aoolication oursuant to art-5,5 of the Texas Constitution and article 4.04 Of Criminal Procedure. IV.

AUTHORITIES AND ARGUMENT

Applicant contends that he is indegent without funds, property or securities in which to pay for trial court records, Therefore, the documents and records should be afforded at no cost to defendant in order that he mav construct an Aooeal. and. suooort of the foreaoina defendant cites the followina cases~

ECKRIDGE V. WASHINcm::>N. 357 U.S.214. 7R S.GT. 1067(1959). SMITH V. RF.NNETT.365 U.S. 477 ,83'-:.S.CT. (1963): ORAPER V. WASHINGTON, 372 U.S.487. S.CT. 774ll963l: GRIFFIN V. ILLINOIS, 35 U.S. 2. 76 S.CT.5R5(1956): LONG V. DISTRICT muRT OF I~A, 385 U.S. 92, 87 S.CT.362Cl966): WILLIAMS V. OKI.AHOMA.::\Q'l TT.S. 458,89 S.CT. 1818(1969): GARDNER. V. CALIFORNIA. ::\91 TLS 370~89 S CT.582(1969):NEVER V.CHICAGO, 404 U.S.189,92 S.CT.30(197ll:CURRY V-STATE 488 S.W.2d 606 Tex.CR.APP.(l973): U.S.V. DAVIDSON,483 F.SUPP.l253(1977): EX PARTE MAYS,510 S.W.2d 606(TEX.CR.APP.- 1975): CAR'l'UERIGHT V. STATE,527 S.W.2d 535 CTF.X-CR APP.l975}:COVILLOR V.STATE, 577 S.W.2d 118. 120-128(TEX.CR.APP.l977}: ABNOR V. STATE.712 S.W.2d l3HTEX.-

rn.APP.l986).

(2) ·,

:V.

CONCLUSION

(1) Aoolicant has no other leaal remeov available to him other than this aooli- cation for mandamus

(2) This action sought is, order the facts of this case, is essence, a mere ministerial act which respondent has a legal duty to perform.

(3} Aoolicant has orooerlv requested respondent to perform which respJndent has refused. COPIES OF EXHIBITS SHOULD BE CERTIFIED COPIES ATTACH AFFIDAVIT OF WITNESS TO FACT:

WHEREFORE,PREMISES CONSIDERED. applicant prays that this application be Granted and that respondent be ordered continue with relief requested.

.. ·:-.

Respectfullv 7~'> Robert Lee Smith {pro se) Ellis Unit/1697 FM 980 Huntsville,Texas 77343

( 1).

-~· ~ ~ ... '--. -.r _ _._~:·.:'_ -····· AFFIDAVIT

STATE OF TEXAS· COUNTY OF WALKER

BEFORE ME. the undersigned authority, on this date personally appeared applicant who upon being duly sworn did depose and state;

My name is Robert Lee Smith and I am the relator in the above cause. I have read the above application for Mandamus and state that the- factual allegations and correct.

SUBSCRIBED AND SWORN TO BEFORE ME.the undersigned authority, by the said applicant on this the]/ day of Jee/eJ?16.Etf. 2015, to certify which witness my hand and seal of office.

N9TARX ~UBLIC IN AND FOR ~~~tv.P~ ,COUNTY,TEXAS~

CERTIFICATR :oF SERVICE

I herebv c~rtffv that a coov of the above Aonli~Rtion for Mandamus was delivered or mailed address on this ~) day of_5_·~~-=~l:..¥~~ .. EXHIBIT-A)

EXHIBIT-Al

\ . November 2812007; CAUSE NOS:#961276 & 966324 L

Robert Lee Smith In The 184th.District Court Vs. Of Harris County, Texas The State Of Texas

·~ -.r;::::..- . DEFENDANT 1 PRG-SE LITIGENT 1 REQUEST TO RECEIVE FREE PHOTO-COli~ ~F THE TRIAL COURT REPORTER'S/CLERK'S RECORDS IN THE ABOVE ENTITLED NUMBERED CAUSE ( S) IN ACCORDENCE WITH RULES OF APPELLATE PROCEOORE 20. 2 VERNON 1 S ANN. ,c 'i1 AND THE TEX. CODE OF CRIM. PROC. 26.04(M).

TO THE HONORABLE JUDGE OF SAID COURT:

COMES t-l

Your defendant, Robert Lee Smith, the undersiqned pro se litiqent, is curre- ntlv servinq two050)vears sentences to run concurrent for the offenses of Aaq. - sexual assault on a child in violation of Texas oenal code section ~ 22.021. Defendant was convicted November 17,2005. in The 184th. District Court Of Harris Countv, Texas Before the Honorable JAN KROCKER, JUDGE PRESIDING, and he was subseauentlv sentenced the same dav. II.

The defendant reauest that this motion be construed Liberallv, as Reauired in Haines v. Kerner. 92 S.CT 594 L. Ed 6052 (1971). Defendant is a Lavmen. unskilled and inexoerienced in the araftina of Writs. ana Formal Pleadina of errors, and therefore, is entitled to less strinaent standards that formal pleading Drafted By Lawyers.

(f} The defendant moves this court on his "OWNBEHALF," and according to provisions ofarticle 1, sec. 19, and article 5, sec. 5, of The State Of Texas, article, 1,.05, sec. 4 of The Texas Code Of Criminal Procedure, and under the provisions of the "DUE PROCESS," and Eaual Protection Clause For the Fourteenth Amend ment to the u.s. Constitution.

Defendant asserts that said rules of Aooellate Procedure Rule 20.04(M), Rules Aop. Proc., Rule 20.2, reauires the State to orovide A free Statement of facts to an appellate who appeals in "FORMA PAUPERIS. Rule 20.2, in the case of an indigent defendant, provides for the statement of facts for the Court Of Appeals. Furthermore, to imoose anv financial consideration between an indiaent Prisoner and his execise of his rights to sue for Liberty is to deny him eaual protection of the Law. This motion is presented in good faith so that defendant may obtain Photo-state~copies of all the Documents and trial Records to Aid and assist him in the preparation of an Appeal to a hiqher court of the conviction imposed by this court. The defendant is entitled to rederss by habeas Corpus relief, that which is essential for ' his research, i.e., The trial Court RePorter's/Clerk's Records in'the above cause. III.

Defendant is fully entitled to the trial court records souqht herein which are essential in the preparation of his Appeal by habeas Corpus Application. Therefore, defendant would show this court which records he knows to be essen- tial to which he is entitled; l)THE COURT REPORTER'S NOTES/TRANSCRIPTS/STATEMENT OF FACTS: 2). A COPY OF THE COMPLAINANT 1 S. 3) A COPY OF THE INDICTMENT(S). 4). A COPY OF THE WARRANT( S) • 5) • A COPY OF THE JURY CHARGE ( S). 6) ·. A COPY OF THE OOCKET SHEET( S). 7) • A COPY OF THE JUDGMENTS AND SENTENCE ( S). 8) • A COPY OF THE TRANSCRIPTION OF TESTiftt)NY ON ARGUMENT( S) • 10) • A COPY OF THE TRANSCRIPTION TESTIMONY ARGUMENTS ON PUNISHMENT. 11) A COPY OF THE TRANSCRIPTION OF INNOCENCE TESTIMONY. 12). A COPY OF THE COMPLETE GUILT PHASE/CASE-IN-cHIEF 'IRANSCRIPTION. 13) • COPIES OF ALL TRIAL MOTION FILED BY· STATE AND THE DEFENDANT. 14). A COPY OF ALL UNSPECIFIED IXJCUMENTS NO!' NAMED HEREIN THAT ARE RELEVANT TO THE ABOvE ENTITLED AND NUMBER CAUSE ( S) (9) •• A COPY OF THE TRANSCRIPTION ON "VOIR DIRE".

CON"T TO NEXT PAGE (;t) Defendant asserts without the above documents number one throuah Fourteen in the uooer oaraaraoh he would be unable to oreoare fairlv within the meanina of a Writ of habeas. Corous oursuant to article ll-07 of the V.A.C.C.P •. (A) ann in the hest interst of justice. A Writ in support of defendant's post conviction Application and that All of the requested documents listed above will be utilized in preparation of this defendant's post trial Writ, and not for the abuse of the proceedinas. The defendant need and request access the trial court records to vindicate his Leaal Riahts to a collateral Attack of his Illeaal conviction(s), IV.

Defendant avers that he is pauper without funds, orooertv or securties in which to pay for the trial court records. The fee that the District Clerk and court reporter are asking. Therefore, the documents and records should be afforded at No Cost to defendant in Order that he may construct an Appeal, and in support of the foreaoina defendant cites the followina cases: ECKRIDGE- v. WASHINGTON, 357 U.S.214, 78 S. CT. 1067,(1959): SMITH V. BENNETT, 365 U.S. 477, 83 ·:s;CT.(l963}: ORAPER V. WASHING'1'0N, 372 U.S.487. S.CT.774(1963}: GRIFFIN V. ILLINOIS. 3§1 U.S.12. 76 S.CT. 585(1956}: LONG V. DISTRICT COURT OF IOWA, 385 U.S.192, 87 S.CT. 362(1966}: WILLIAMS V. OKLAHOMA, 395 U.S.458. 89 S.CT. 1818(1969}: GARDNER V. CALIFORNIA, 393 U.S.370, 89 S.CT.582(1969}: NEVER V. CHliCAGO. 404 U.S. 189. 92 S.CT.30(197ll :Currv V.STATE. 488 S.W.2d. 606 Tex.cr.APP. (1973): U.S. V. DAVIDSON. 483 F.SUPP.1253(1977):EX PARTE- MAYS, 510 S.W.2d 606 (TEX.CR.APP.1975): CARTUERIGHT V. STATE. 527 S.W.2d. 535(TEX.CR.APP.1975 )COUILLOR V. STATE. 577 S.W.2d. 118. 120-12HTEX.CR.APP. 1977): ABNOR V. STATE. 712 S.W.2d. 136(TEX.CR.APP.1986).

v. The Supreme Court held that States are required to established avenues of Appellate review but it not fundamental that once established these avenues must be kebt free from unreasonable distinctions that can onlv imoede ooen and eoual access to the courts. Defendant contends that, If denied the reauested ohotostat cooies of the trial court reporter's/Clerk's Records, he is therefore, beina denied the riaht to Appeal. said denial would be a violation of the Fourt- eenth Amendment to the u.s. Constitution. To imoose anv further financial con- dition between an indiaent orisoner of the State and his execise of a State riaht to sue for Libertv, is to denv that prisoner the "EQUAL PROTECTION OF THE LAW" In the case of LANE V. BRCIW. SUPRA THE COURT REAFFIRMED THE FUNDAMENTAL PRI- NCIPLES OF GRIFFIN V. ILLINOIS SUPRA, BY STATING TO FOLLOWING: A DESTI'l'l:n' DEFENDANT .MUST BE AFFORDED AS ADEQUATE

APPELLATE REVIEW AS DEFENDANT WHO MAY HAVE TO BUY

TRANSCRIPP

IrtLane Supra, The court went on to observe that Smith v. Bennett,. 365 U.S.477 83 S.CT. 768 reaffirmed these Principles when iustices sais in pertinent part: "That; these Princioles were Not"Limitted .to D1'rect Apn.o.=-ls" F · ~~~-;~:::=-::-~~~-=~~~------~~==:~=:::~::r:o:m~c~r~~minal Con- ~--dner.• Sup-a victions: It is further stated in UCU.' ._, that a layman actina in his .:.: own defense, or his own behalf, ·~needs the court records even more so that an Attornev actina in his behalf would." In the case at bar, defendant asserts that his need of the records are essential, and are reauired to present his case in the most favorable liaht, and he must procure said records to prove his errors pertaininq to the issues in a 11.07 Writ Of Habeas Corpus to the trial court and the Court Of Appeals, .as well as the higher court.

Defendant asserts that . his Constitutional Guaranteed Rights have been violated, but cannot be pursued by Post-Conviction Writ Of Habeas Corpus::;due to .the lack of his trial records and other essental documents. Defendant avers that if he is denied the right to the trial records of his case in the above styled and number cause, that he would be denied the Right to Adequate Remedy Of Equal Access To Exhaustion The Issues Regarding his Illeqal Convictions, and The Judae may not deny Defendant the trial Court Records On Discretion That A Fair Trial Was Held. Eskeridqe v. Washinqton, 78 S.CT. 1061(1961): Smith V. Bennett, 365 U.S. 708 81 S.CT. 895. THE COURT MADE CLEAR THAT THESE PRINCIPLES WERE NOT TO BE LIMITED TO DIRECR APPEALS FROM CRIMINAL CONVICTIONS, BUT EXTENDED TO STATE POST-CONVICTION PROCEEDINGS. The court also stated in Smith v. Bennett, 81 S.CT. at 898 that the Fourteenth Amendment weiqhs the interest of Rich and poor criminai in equal scale and its hand extends as for to each. The court also· stated in Griffin v. People, 76 S.CT.at 590----'- "THUS TO , DENY ADEQUATE REVIEW TO THE POOR MEANS THAT MANY OF THEM MAY LOSS THEIR LIFE LIBERTY AND OR PROPERTY BECAUSE OF UNJUST CONVICTION WHICH APPELLATE COURTS WOULD SET ' ASIDE." .•

Defendant avers that·all said NOTES and Documents Of The Proceeding Occur- rina before, during.and after the trial on the instant case are in the possess- ion of the Court Reporter and The Court Clerk Of The 184th. Judicial District CdlitETin Harris Countv,Texas The Cost Of Said Records Must be Assumed By the State In This Regard Under The Jurisdiction, citing, Griffin Supra.

WHEREFORE, PREMISES CONSIDERED, the defendant respectfully request and beseech this Honorable Court To Grant The Relief Sought herein, or in the alte- rnative, set this matter on the Docket for an evidentiary hearinq on the merits, or Grant any further Relief that this court deems proper and/or just.

U338999 Ellis Unit/1697 FM 980 Huntsville.Texas 77343

AFFIDAVIT OF INDIGENCE

I ROBERT LEE SMITH, Do hereby swear and certify under the penality of perjury that I am indigent and destitute and have no money, funds nor assets or financial ability to retain counsel are pay for court records in the above cause are oav the cost of these leoal oroceedinos.

Robert Lee Smithil338999 pro se. Litiqent

·(_S) DECLARATION

I, ROBERT LEE SMI~, TDCJ NUMBER-1338999, being presently incarcerated in The O.B.Ellis Unit Of The Texas Department Of Criminal Justice rin:;G:!

EXECUTED ON THE 28, DAY OF NOVEMBER, 2007,

CERTIFICATE OF MAILING

I, Robert Lee Smith, herebv certifv that a true correct copy of the foreooino motion was delivered to the district Court In Harris County, Texas By Placing a copy of same in the Inmate Postal Service Mail Box 1697 FM 980, Ellis Unit/ Huntsvill, Walker County, Texas 77343 on the 28 day of November 2007. CAUSE NOS:i961276 & 966324

IN THE !84th. DISTRICT COURT OF

ROBERT Lee Smith HARRIS COUNTY, TEXAS vs. THE State OF TEXAS

ORDER

The above motion to receive photo-copies of trial transcriPts and records in accordance with Rules Of Apoellate Procedure 26.04 and 20.2 free of charae I

to defendant was presented/heard on the dav of ------------------,20

GRANTED

DINIED ----------------------------------------

SIGNED ON THIS day of 2007. ---------- ----------~-----------

JUDG PRESIDING

(/) . ' )v ! ' -':7.~- \ -~- ,• , .•,.•' .... EXHIBIT.:_B) l (J -·· ....

' .- < ' - ' !

...... /'

EX·HIBI'T-~)

/

( 8.-.LHliHX!!I ., OOR.ROBERT SNll'l'H#1338999 IN THE COURT OF APPEALS ELLIS 1 UNIT ,, 1697 FlV! 980 fO.R '.rHE FIRsT .DISTRICT HUNTSVILLE,TX.77343 OF TEXAS

Deara CARINNE McCULLOUGH "CLERK"

' . . ·Please find enclosed one (1) affidavit requesting the cost of affiant s clerk record s and transeipt. .. Also, affiant request the cost of each potion of the" trial trainseipt i.e., .vior doir, Guilt/ Innocence phaser e.nd the se':'ltencing phase.

THANK YOU IN ADVANCE FOR YOUR ASSISTANCE ' .". ~

INTO TH! MATTER AT HAND. . ·::

Si.ncilrely, ROBERT SMI:J:'H II , -· , ~ _ .. 2 · f((!)--(JJ)vf~-t.?tlu fl-! 3 :; f.(; 7; ;

Datea 2/ 25/008 '; .'

. \~ \ ~ ;. ( 1) . :;: Cause Numbersa9612?6 &.966'324

Ex Pe.rtea

ROBERT SMITH, In The Court Of Appeals For AFFIANT The First District Of T~txas · THE STATE OF TIDCAS COURTY OF HARRIS

AFFIDAVIT

BEFORE ME, the undersigned authority, on this day personally appeared Robert Smith, Who, being by me duly sworn on his oath depose as fpllowse

·Comes now ROBERT SMITH, in a req'uest to obtain the :full cost of all clerk record and transcip in the aforesaid cause numbers and would swear and affirm thata JT ( 1) ON Auguet .J 200J 1. a felony criminal complaint was filed Ill,.., against affiantG'in cause numbers 961276 & 966J24a

(1) ::;_. . . ·. ' . . ~' . ·~

(2) ··- '·~' \' .~.

-(2) • On OCTOBER 24 200'3• , affiant was ir&dicted for the off~nses of aggravated sexual asse_ult of a child in eaus~

numb~r~ 961276 & 9663241 (3). On ~OVEMBRR 15, 200S, Affiant's was convicted for the offenses of e.ggravated sexual assault of a child in cause num- btl!rs .9612Z6 & 966324, and confined to a fifty (50) year sentence in TDCJ 1 t:~-. (4). On NOVEMBER, 28 '2005.,{ a direct appeal was taken in cause numbers 9612Z6 and 966)241.

(5). On 'JANUARY 11, 200?, Affiant's direct appeal was denied 1 in cause numbers 961276 and'·' 966J24r

(6). on JANUARY 19, 2001, Af':f'ia~t·s . ' P.D.R. was file in.caus:~ ~ ),

numbers 9612?6 and 966324, ( '

(7). On JUNE 6, 200? Affiant's P.D.R. WAS Denied in caustt numbers 961276 and 966324,

.(8). On o~r~BER 19, 2007. Affiant filed a motion reques,ting a copy of his el~+k' 8 record' a and trial transorlpt in cati·s~ · numbers 961276 and 966324•

((9). On NOVEMBER 1Z;200S, Affiant's requested a copy of his clerk records and transetipt from the 184th. District Co:urt of' Harris County. 'l'exasa

( 10). On NOVEMBER 28, 200?, Affiant aga,dn requestf!d information as to the cost of his clerk's record's and trial transcri.pt· from MRS .. CARINNE McCULLOUGH IN cause numbers 961276 and 966J24J

(2) ( ))

(11). On JANUARY. 22,2008, Af:f'ie.nt filed, two seperate pleadtng requesting information as to the cost of his clerk records and trial transcript in cause numbers 961276 and 966J24J ~y ( t!). Affiant has declared that he is indigent and :-the . ~'·- "· hA request from thie court thfll cost of his clerk's reco·rd~;

and transcripts in cause numbers 961276 and 966J24t and ·' that this court gi vee him a breakdown of each poti()n ot . the clerk's record's as well as tne court prceeding in his transcript of cause numbers 961276 and 966324~

AFFIANT

BEFORE ME, the undersigned author~ ty on this the f3 c;- DAY of.;. F.eJ , 2008, and personally ~ppeared ':!' Rob..,rt Smith, ' and sworfll and affirmed the truth of the contents recited hereinabOve •. He stated, under oath, that his testimony was true and correct· and given fo.r· th~ purposed considerati.ons recited.

Notary Public In m\d For · .The State Of ~EXAS

MY COMMISSION EXPIJmSa

0 .(J) EXHIBIT-C)

EX·HIBIT-~;1 . ··::- ~t

EXHIBIT-:C) ' c: ll THERESA CHANG HARRIS COUNTY DIST~ICT CLERK

February 29, 2008

MR. ROBERT SMITH TDCJ #1338999 ELLIS UNIT 1697 FM 980 HUNTSVILLE, TX 77343

Re: Your Letter Received: 02-18-08 Reference Naine: ROBERT SMITH·

Dear MR. SMITH:

The document(s) in the cause number(s) you requested and the number of pages are listed as follows: Cause No Document No. of Pages

961276,966324 COMPLAINTS 2 INDICTMENT 2 JURY CHARGES 14 DOCKET SHEETS 17 JUDGMENTS 6 PRETRIAL MOTIONS 16 STATEMENT OF FACTS 144

THESE COSTS ARE SENT TO YOU PER ORDER OF JUDGE KROCKER

The fee for a certified or uncertified copy is $1.00 per page. If you wish to purchase a copy of any document(s) listed, please request the document(s) by name and cause number.

We accept ONLY cashier's checks; money orders, inmate trust fund checks, or Texas law firm checks payable to Theresa Chang, District Clerk. To expedite your request, please return this letter and a self-addressed stamped envelope along with your payment to the District Clerk, Attention: Criminal Correspondence, 1201 Franklin Avenue, 3rct Floor, Room 3138, Houston, TX 77002.

20 I CAROLINE • PO Box 4651 • HOUSTON, TEXAS 77210-4651 THERESA CHANG HARRIS COUNTY DISTRICT CLERK ·Sincerely,

By. • ·· Theresa Chang, District Clerk

7:tMr~ T. Moore, Deputy District Clerk

201 CAROLINE • PO Box 4651 • HOUSTON, TEXAS 77210-4651 .,

~·-. EXHIBIT-D)

I -· I

EXHIBIT-D) . )•

ROBERT LEE SMITH#l338999 O.B.ELLIS UNIT/1697 FM 980 Huntsville,TEXAS 77343

MS LOREN JACKSON HARRIS COUNTY DISTRICT CLERK, HOUSTON,TEXAS 77002 NOVEMBER, 21/009 RE:CAUSE:i01-05-01095-CR & 01-05-01096-CR:

MOTION TO PRODUCE TRIAL TRANSCRIPTS AND AUDIO SOUND RECORDING

Now Comes, ROBERT LEE SMITHi1338999,petitioner pro se respectfully

moves this court pursuant to Rulle 13.1 and 13.2 of The Texas Rules Of Appellate Procedures for Orderinq Transcripts and Audio Sound Tape Recording. Petitioner is entitled to a copy of his Transcripts and Audio Sound Tape Recording in Order to prepare his Post-Conviction Habeas Corpus Pursuant to Article 11.07 Code Of Criminal Procedures and 28 § u.s. 2254. The Court's Attention is directed to State v. Creel, 895 S.W~2d 899, 900(Tex. App. Waco 1995, Oriq. Pro.) Which states the ~ourt Reporter's Duties Under this R~le are Not Met Simply by filing the Reporter's record with apprpriate court. The reporter's record filed must be complete and accurate. It follow's petitioner submits that Texas Rule Of Appellate Procedures Rule 13.1 and 13.2 in pertammq~

and provides the followinq;

(A) ATTEND COURT· SESSION'S AND MAKE A FULL RECORD OF THE PROCEEDING UNLESS EXCUSED BY AGREEMENT OF PARTIES. T.R.A.P.l3 COURT REPORTER'S AND COURT RECORD: 13.1 ADDITIONAL DUTIES OF COURT REPORTER'S AND RECORDS. ADDITIONAL DUTIES OF COURT REPORTER THE OFFICIAL COURT RECORDER MUST ALSO:

(B) ENSURE THAT THE RECORDING SYSTEM FUNCTION'S PROPERLY THROUGHOUT THE PROCE~DING'S AND THAT A COMPLETE CLEAR AND TRANSCRIBALE RECORDING IN MADE.

(1 ) . ~ (C) After the recordino end's file with the clerk the orioinal

(D) HAVE THE ORIGINAL RECORDING STORED TO ENSURE THAT IT IS PRSERVED AND ACCESSIBLE AND:

(E) ENSURE THAT NO ONE GAIN'S ACCESS TO THE ORIGINAL RECORDING'S WITHOUT THE COURT WRITTEN ORDERS.

The above and foregoing language is clear and it's requirement are mandatory. ThiA prespective has also been recoonized by the United States Supreme Court in that State that a criminal defendant has a right to accurate record on appeal. Which a complete Transcripts of the preceeding at trial. See Hardy v. United State 375 U.S. 277 84 S.CT. 424 111. Ed.2d 33(1964). In view of the foregoing and above petitioner heretofore request's this court to produce the Audio Tape Recording's and Transcripts pertinent to petitoner's sentence in which was held

"SEPTEMBER,l7,2005,' see HANDSON V. STATE, 956 F.2d 245(11 CIR.(l992). In Re Jose A Coronado No;04-98-00596-CR.states an indiqent criminal defendant is entitle as a matter of equal protection or of Due Process to obtain a free statement of facts and transcrips in order to assist in perpration of a petition of habeas corpus"ABSENT" a showing that the Writ of Habeas "ACTION" is not" Frivolous" and there is a "SPECIFIC" need for the trial records which are sought. ESCOBAR V. STATE, 880 S.W.2d 782, 873(TEX. APP.(HOUSTON lST.Dist.l993).

Applicant/Petitioner claims he is ACTUAL INNOCENT, and without The Fundamental Miscarriage Of Justice Applicant/Petitioner would never been convicted and or illegally sentenced, so he need's these record's. Abuse of discretion and prosecutorial Misconduct by volume. Page and lines, to establish that there are unadjudicated meritoious allegations of United States Constit- utional Rights Violations. WHEREFORE, premises considered Appellant/Petitioner prays that this' court GRANT this motion. The court Reporter's to produce the entire volumes of Audio Sound Tape Re~ordinq Of the ~3

transcripts of Appellant/Petitioner Trial and Sentencinq proceedinq and exhibits.

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AFFIDAVIT/UNSWORN DECLARATION CERTIFICATE OF SERVICE

State Of Texas, County Of Walker County, I Robert Lee Smith, TDCJI- 1338999, du1tv sworn depose attest and.sav unde~ oena1tv or oreiurv that the foregoing and following statement are to the best of mv knowledqe pursuant 28 § u.s.c. 1746. I have serve. file this inst- rument bv ol~cihci ~am~ within ~.o.c:J~ID#. Irtternal mailina svstem an officiallv ~eoositorv of U.S.P.S. In a cost oaid orooerlv addr- e,~s wraooer to infra, and herebv veri tv under oen,al tv of ore iurv that the foreaoina is true and correct to the best of mv knowledae.

EXCUTED THIS DAY 1 December. 21 1009 :··-· -

;:

Robert -Ellis Unit/1697 FM 980 Huntsville,Texas 77343

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(.~ ) .. r; EXHIBIT-E)

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EXHIBIT-E)

/ ··~· ROBERT LEE SMITHil338999 ElliS UNIT 1697 FM 980 Huntsville.Texas 77343 JUNE 15.2010:

( RE:TRIAL COURT N0Si961276 & 966324) APPEAL COURT NOS·: 01-05-01095 & 01-05-01096- CR.)).

DEAR CLERK, Enclosed, please find mv motion, for the l84th.Judicial District Court to Produce trial court transcriPt for on a Temporarv Loan 1 Basis. Under both Texas & Federal Law. Petitioner has The Riaht t to Pursue Post-conviction habeas Relief from the iudaement and sentenced imposed on him.

Please Clerk of the court. Please file this Motion with the Judae of this court for inspection olease.

r. also reauest that vou-notifv court's,rulina on mv motion.

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CAUSE NOS:#961276 ~ 966324

IN THE 184th.JUDICIAL DISTRLCT

COURT OF HARRIS COUNTY, TEXAS THE STATE OF TEXAS vs. ROBERT LEE SMITH

MOTION TO OBTAIN TRANSCRIPTS RECORD

COMES NOW, Robert Lee Smith, defendant 1n the above entitled ~nd numbered ~aused, and move~this Court for an Order to Grant Records of Transcriptss from hearing. ) __!_•• Defendant was convicted on 11/17/05, for the offense of aggrava- ted sexual assault. II.

Defendant was confined at Harris Countv Jail, 1200 Baker Street. Houston.Texas 77002~and is indiaent. Sa. such defendant is unable to oav anv and all costs of transcrios records.

WHEREFORE. DEFENDANT PRAYS, that this court Grant this motion and have all said transcriots records forward to the defendant.

RESPECTFULLY SUBMITTED, THIS 17th DAY OF DECEMBER.

K~~ RJbert Lee Smith

I Robert Lee Smith, beinq presently incarcerated in Harris Countv, Texas declare under oenaltv of puriurv that the foreaoina is true and correct. EXECUTED ON DECEMBER 17, 2005: 1 ORDER on this,the 14 dat of December 2005, came to be heard defendant's motion and it should be. GRANTED DENIED ------- (2) -------------- ) SO ORDERED

JUDGE PRESIDING

GRANTED ---------------- DENIED -----------------

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~ )Afi' .l~, /' . . EXHIBIT-F)

EX·HIBIT.\})

. EXHIBIT-F) '\ t;J;f)tr [,1ft( Cause No;i961276 & 966324

· Robert Le Smith In The 184th District Court §f pro se, vs. Harris County, Texas The State Of Texas

MOTION TO REVIEW THE TRIAL RECORDS ON TEMPORARY BASIS:

Dear Ms Jackson,

greeting, I pray all is well with you and yours, Ms Jackson this motion I

am filing in The 184th. District Court please, file said motion and bring

it to the attention of the Honorable Judge of said court.

,- Your Assistance and consideration and cooperation with regards to this

matter will be most sincerely appreciated. Thank you in advance.

I look forward to receiveing your reply in the near furture;

Res~~ 9/19/011 ~prose ·' Cause No;#961276 & 966324

Robert Lee Smith In The 184th District Court· Of Vs. Harris County, Texas The State Of Texas

MOTION TO REVIEW THE TRIAL RECORDS. ON TEMPORARY LOAN BASIS:

To The Honorable Judge Of Said Court;

comes's now, Robert Lee Smith, Movant, pro se in the above styled and numbered

cause, and would respectfully move this honorable court to provide Movant

with a copy of the trial records herein referredto as the the"Records" in

trial cause ·numbers 961276 & 966324, on a temporary loan basis, in support

of this Honorable Court is the following;

I. JURISDICTION

This Honorable court has original and continuing jurisdiction over the parties

and subject matter raised within this faith motion.

II. OPEN RECORDS ~T

Movant's request is made, in part, pursuant to those provisions enacted through

legislation under The Texas Public Information Acts, Codified Under Government

Code§ 552.000 Ct.Seg. V.T.C.A.,

III. RECORDS FOR REVIEW

[A] Movant have in the furture have tried to prepare and submit a pro-se

application for Writ Of Habeas Corpus, Pursuant to Texas Code Of Criminal

Procedures Annoate Article 11.07.

{1).

\ [B] within the body of the application for Writ Of Habeas Corpus Movant expects

to raise the following constitutional Error's but not limited to these alone;

1). Ineffective Assistance Of Counsel;

2). Insufficiency Of Evidence;

3 ) . That •.• ect.

[c) as a matter of law Movant would state further that undser the proof Stand~

ard of Tex.code crim. pro. Ann. Art.ll.07 and exparte Maldonado 688 S.W.

2d. 114 (Tex. cr. app. 1985) The applicant must state facts which, if true

would entitle the applicant to relief. ID merely stating Legal Conclusion

is not enough see Exparte Hernandez 705 S.W.2d 700 (Tex.cr.app.l996).

Futher more an applicant, ,to be entitled to relief, must plead and

prove that the complained of error did infact, contribute to his conviction and /

punishment. Exparte Barber 879 S.W.2d 889(Tex.cr.app.l994) Movant would respect-

fully contend that, there is no way for him to be able to raise and or/plead

factual errors on an application for Writ Of Habeas corpus without first

being able to both review the "CLERK" RECORDS AND THE "REPORTERS RECORDS"within

this cause;

[D] Movant would futthermore point out as a matter of law that in the event he

was thus, forced to raise claims on his state writ, which were the denied

thereafter, both by the Honorable Court and then the Court Of Criminal Appeals

The overall harm from such a denied would not just stop here.

This harm would follow Movant into the Federal Courts as well.

Under the Antiterrorsim and effective Death Penalty Act Of 1996, [AEDPA]

habeas relief under title 28-USCA §2254?, will not be granted for any claim

adudicated on the merits in state courts unless the decision was (l)contrary to

(2) or involved an unreasonable application of "FEDERAL LAW" CLARLY established

by The Supreme Court, or (2)" BASED ON AN UNREASONABLE DETERMINATION OF FACTS," see 28-USCA 2254 (d)(l) & (2).

Movant would in same likeness, be unable to meet these required standards with-

out first being able to review the records, since Movant is indigent (see attached

declaration in support, tThis failure or denial of the right to raise such

claims on habeas corpus, because the Honorable court would not allow Movant a

free viewing of the records would both be unconstitutional and against the

Well Established holding under The United States Court Case Law.

IV. AS A MATTER OF THE SUPREME COURT LAWS OF THE LAND

[a] Movant would contend that the United States Supreme Court has consistently

held under certain circumstances, that trial records should be made availiable

to indigent prisoners without prepayment of the cost and fee's proving such

records and that prisoners access to the courts cannot be condition upon

the amount of money he/or she may have, (see M.L.B.V.S.L.J., 117 S.CT. 555 (1996),

Griffin v. Illonis 351 US 12,-76 s. CT. 35 (1956, The Plurality in Griffin reconized "The Importance Of Habeas Review To Correct

Adjudication of guilt or innocence Id. at 18,76 s. Ct. St 590 ..

[T]O deny adequate review to the poor. "The Plurality Observed" means that

many of them may loose their life, liberty or property, because of unjust

conviction which habeas courts would set aside. Id. at 19,-76 S.CT. 590 The

rational has been applied various other forms of review.

[C] as a matter of facts Movant would point out that it is common practice

on the prison Unit that prisiners receive records from the courts as loan

basis to the "Warden Of The Unit" The Warden Allow offenders to review said re

cords within the Unit Library, Under the constance supervision of its staff off-

icers.

(3) When the pre-established viewing time limitations by the Honorable court has been exhausted, The Warden then mails the Records back to the court, at the offenders expense.

v. PLEA

Movant spectfically request this Honorable court to allow him in same, as the above said section IV. Subsection(C) and would plea that he only wishes to review the records, not retain a free copy of said records on the Unit that he is signed to. If the court is in agreement of this request, then Movant would specifically request the court for the following;

[A] that the above mentioned trial appeallate records in this cause Number 961276 & 966324, including(l) The clerks records and/or transcripts, and (2) The reporteds records and/or testimonal minutes.

(B) that the court . Order the District Clerk Of Harris County, Texas to Mail the complete Records to Senor Warden Of The Ellis Unit, 1697 FM 980 Huntsville, Texas 77343 , to confirm receipt by calling the Wardens Secretary, at________________________;

[C] Movant specifically request Ninety(90)days to Review the Records in the Law Library, on the Ellis Unit Under Supervision Of The Warden Designee .•

VI CONCLUSION

Movant is making this reasonable and just request in good faith, to deny this request after having made this good faith attempt, as an indigent prison- er of this state, would be for the court to deny Movants constitutional vested rights to equal protection and due process of the law under both u~s. constitu- tion Amendment(S) and XIV: and Texas Constitutions Article 1 & 10, § § 19. let this Honorable Court make the fair and just decision to uphold Movants constit- utionally protected rights by granting this motion. VII. PRAYER

Wherefore Premises considered, Movant would Respectfully pray thatt this motion to review trial records on temporary ;nos#961276 & 966324.

9/19/011

(4).