SMITHWICK, ROY LOUIS Jr.

Opinion

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TDCJ#622814 M c 11 ~ © 3001 s. Emilch:r.me @UHTOF`A{CHNWN Beeville, Tex. 78102 JUL 08 2015¢]"

Court of Criminal Appeals

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P.O. Box 12308 Austin, Texas 78711

RE: Petition for Writ of Mandamus Dear Clerk, ?- f ?i;::;

Enclosed please find a Petition for Writ of Mandamus relating to wR-29,392-21.

Will you please file and set the cause for review of the Court

to address the issues presented.

Roy L. Smithwick/

7/

NOZ

In THE COURT OF CRIMINAL APPEALS

` In Re ROY LOUIS`SMITHWICK JR.

Roy L. Smithwick, Jr. Pro-Se _ TDCJ#622814 McConnell ' \j 3001 S. Emily Dr. ' Beeville, Tx. 78102

lDENTITY OF PARTIES AND COUNSEL

RELATOR, Is a person confined in the Texas Department of Criminal Justice and may be contacted as addressed below.

Roy L. Smithwick, Jr. TDCJ#622814 McConnell 3001 S. Emily Dr. Beeville, Tx. 78102

Respondent, Is a Clerk for the Court of Criminal Appeals and

£ may be contacted at the address below.

Clerk.of the _

P.O. Box 12308, Capitol Station Beeville, Texas 787ll `

TABLE OF CONTENTS

Identitiy of Parties and Counsel II. Table of Contents;- --II. Index of Authorities II,III. Statement of the Case-- --IlI,IVv Statement of Jurisdiction IV, Issues Presented-- --V- Statement of.Facts V}VI. Arguement-- --l. Prayer 5. Declaration-- -- __6. INDEX OF AUTHORITIES l. Cr. Codes and Proc. Article ll.O7 Sec. 4a(l)(2)- -------- III>3 2. Tex. Gov. Code § 22. -- IV r; ---------- l.

3. Haines v. Mays 404 U.S. 319,320 (1972)----¢---

II.

4; wade v. ways 689 slw.za'ésa,'897 (1985 T¢x.cr.App) ------ 5. Ex Parte Neal Hampton Robbins Qt.Cr;App. No;73/484-02 -~ 6. 83rd. Legislature j H.B.41847, S.B.~825, & S.B.-l€ll---- 7. Will v. United States 389 U.S; 90, 96 (1967) --

3.'Meissner v. Fuchs, 290 s.w.za 941, 944 (Tex.civ.App. - Galveston 1956) ---------------------------------------

9. Wortham v. Walker [133 Tex. 255] 128 S.w.Zd @ llSl (1939)

STATEMENT' OF "THE CASE `

The clerk of the Court of Criminal Appeals has set aside the Legal Statues' of Article § ll.O7 Sec. 4a(l)(2) "New Legal Basis" and "Constitutional Violations" ‘by a State Prosecutor to defer: to the Court of Criminal'Appeals Order to not accept Relators `Application for ll;07 unless he "... is able to show in 'such an application that any claims presented have not been raised previously and .that they could not have been presented in a previous application for a Writ of Habeas Corpus."

The clerk of the Court of Criminal Appeals has the Minister- ial Duty to Obey the Courts Orders within the Statues of Law.

Texas`Criminal Codes and Procedures Art. ll.O7.Sec. 4a(l)(2) allows for a sucessive filingv if a'“NEW LEGAL BASIS"or a "CONSTITUTIONAL VIOLATION " ocurred that no rational juror could havefmn©'&dathGmHIy. beyond a Reasonable Doubt.

Legislation has 'enacted' Article ll.073 `which this Court .of Criminal Appeals has »establishedj is a "NEW LEGAL BASIS" previously unavailable for consideration in a Prior Application.

III.

Relator is citing for the first time that the Trial Prosecutor Knowingly and' Intentionally .violated his Constitutional rights' to a Fair Trial by having pre-Trial Knowledge that the State Offerred Scientific Testimony wa;: going to be Falsified. With out Such fabricated Scientific.Evidence Relator would not have been found Guilty beyond a iReasonable Doubt and Maintained his innocence.

Relator has `Satisfied the `Requirements for a Successive Application 'Under Sec.l 4a(l)(2) due to the "NEW LEGAL'BASIS" previously' unavailable for consideration in a`Prior Application (Article“ll;OV3)'and the'know§hgly fabricated Scientific Evidence ViOlated RelatOr”S""CONSTITUTIONAL RIGHT TO`A FAIR TRIAL" which iSr a "MISCARRIAGE OF_JUSTICE" by“a State Offlcial.

Wherefore the Clerk of the Court of Criminal Appeals has the Ministerial Duty to file and set for review Relators Application for Habeas Corpus Relief or at the Minimum recomend that a Record

be developed to base a decision on.

STATEMENT OF JURISDICTION

This Appeals Court has Jurisdiction to issue Writs of Mandamus over Matters concerning Ministerial Duties of a State Official; Under Tex.Gov't Code § 22.

Relator has ,no other Adeguate Legal Remedy to Petition the Clear Ministerial Duty of the Clerk of the Court of Criminal Appeals to follow the Courts Orders within the Statutes of Law to allow Relators Constitutional Right to Access the Court by filing and Setting the Cause for Review.

IV.

ISSUES PRESENTED

The Clerk of the Court of Criminal Appeals has Abused his Discretion and Ministerial Duty by Refusing Relators Due Process Right to Application of Law to file and set for consideration of a successive Application for Habeas Corpus Review which has met the Reguirements set out in Criminal Codes and Procedures Article ll.07 Sec. 4a(l)&(2).

(Article ll.O7 Seo 4a{l])

Relator has a Constitutional Due Process Right to Application of a~ "NEW LEGAL BASIS" I(Art. ll.O73) which was previously unavailable for consideration in a Prior Application.

(Article ll.O7 Sec. 4a[2])

Relator has a Constitutional Right to Due Process of Law to have a FIRST TIME CLAIM of a "Miscarriage of Justice" addressed on the merits concerning the TRIAL PROSECUTORS KNOWINGLY AND"~ INTENTIONALLY falsification and fabrication of scientific testimony which violated Relators Constitutional Due Process Right to a FAIR TRIAL. No rational Juror would have found Relator guilty beyondiireasonable doubt absent the constitutional right'violations

to a FAIR TRlAL by the Prosecutor.

STATEMENT OF FACTS On .3/18/2009 Relator was cited for Abuse of Writ. The Instructions .to the Clerk were not to accept another_Application for Habeas Corpus Relief unless Relator "... is able to show

in such an application that any claims presented have not been

V.

' `l

rasied previously and that' they could not have been presented in a previous application for a Writ ochabeas Corpus~"

On Sep. l, 2013 Legislation enacted an Amendment to Criminal Codes‘ and Procedures to' addv Article ll.073 that pertained to certain Scientific EvidenceQ'

On Nov.` 26, éOl4 the Court of Criminal Appeals found that Article ll;O73 satisfied the requirement for a Successive review for relief under ‘Art.' ll.O7 Secl 4a(l); - A "NEW LEGAL BASIS" previously unavailable for consideration in a prior Application. (See Ex Parte Neal Hampton Robbins, WR+73,484402)

- Before ~Exercising' Relators Newly' Granted Right to review on a NEW LEGAL BAsIs he DILIGENTLY SoUGHT to find'whether the State Prosecutor 'knew the' Expert Testimony~ offered at trial was false and unreliable by requesting the Scientific‘Documents/ Reports used for Pre-Trial Preparation.

83rd' Legislative House. Bill.‘1847r Senate Bill 825, and' Senate» Bill ll6ll enactment all»revolve around the Transparency of `the Prosecutors’ Office to. Disclose information_to met the Pubbics demand 'to prevents or resolve wrongfull convictions and provide a Constitutional Due Process Rights to Fair Trials to Citizens.

.Despite the Publics Demands the Webb Qo. listrict'Attorney refused to .release 'scientific documents/Reports used' by the Trial- Prosecutor to' prepare for Trial. (Relator presents Due Diligence to provide proof of his claims but is being obstructed to his legal right to access the proof for the claims.)

VI.

Relator Applied for Habeas Corpus Relief on or about Jan; 7, 2015 citing the New Legal Basis of Art. ll.073 and a Miscar- riage of Justice;

The Trial Court did.not act as a fact finder applying the NEW LEGAL BASIS standard of review to developF the records for the Court of ~Criminal Appeals clerk or the`court to review and base a decision on the Scientific Trial Testimony that has shown to be intentionally falsified and relied upon by the State to obtain a conviction.

On 3/18/2015 The Clerk of the Court of Criminal Appeals, without a developed‘ record from the Trial Court, found that Relator did not met the standard for review set out in the Appeals Court Order and ignored the legal statue of Article ll.07 Sec§ 4a (l)&(Z).

Relator did met the_ standard for review under the Statue of Art. ll.07y Sec. ;a(l)&(Z); - "NEW LEGAL BASIS" previously unavailable‘ for consideration 'in a' privious application and Constitutional Due Process violations to a Fair Trial by-a State Prosecutor, absent such violations no rational Juror would have

found Relator Guilty beyond a Reasonable Doubt.

ARGUEMENT Relator?fi§“@proceedingrtPro§Se:tin¥ethisscausemandiaskssthe Court ofeCriminal;Appeals toihold him to agless Stringent standard then' formal pleadings made by an Attorney; (See -- Haines v. Hernar, 404 U.S. 319, 320 [1972]) "In determining the specific nature of the Extraordinary

l.

relief sought, this Court will not be limited.by the denomination of Petitioner's pleadings, but will look to the essence of the pleading, including the prayers, as well as the record before

Us." (See Wade v. Mays 689 S.W.2d 893, 897 [1985 Tex.Cr. App,])

On 3/18/2015 The Clerk_ of the Court of 0riminal'Appeals found Relator _did not met the Standard for review under Order set out by the court.

The Court of Criminal Appeals set out in its order that the Clerk was .not. to accept another Application from Relator unless he "... is able to show in such an application_that any claims presentedl have not been raised previously and that they could not have been presented pin a previous application for a Writ of Habeas Corpus."

The‘ Clerk -of“ the Court has the Ministerial Duty_to also apply the Statues of Law aside from the Courts Order.

The Court has established ink Ex Parte Neal H. Robbins, WR-73,484-02, that-Article ll.073 is a FNEW LEGAL BASISF previously unavailable for consideration in a prior application and satisfies them requirements for a successive application Under Art. ll.07 Sec. 4a(l).

Relator is citing article _ll.073 as a "NEW LEGAL BASIS" for relief as the Article was previously unavailable for consider- ation in a prior application for relief.

Relator has therefore met the Standards for relief under Legal'$tatue oqurticle ll.07 Sec. 4a(l).

2.

Also, Relator“is citing for the FIRST TIME that a "Miscarriage of Justice" occurred by the Trial Prosecutor knowingly and inten- tionally offerring~ false and unreliable Scientific testimony which denied Relator's‘ Constitutional"Due-Process Right to a FAIR TRIAL by a State Official. Absent this Constitutional Due-Process violation no rational Juror would have found Relator guilty beyond a reasonable doubt.

Relator has therefore met the_ Standard for relief under

Legal Statue of Article ll.07 Sec.4a(2).

NO DEVELOPED RECORD

lt should be noted that there has never been a developement of the records considering the Affidavits and Exhibits that show the Trial Prosecutor'"KN®WINGLY" relied upon false scientific testimony to obtain a-conviction which denied Relator a Constitu- tional Right to a Fair Trial by a State Official;

Should the Trial Court have developed the record there exsist 'the 1 likely hood _of finding' a Miscarriage of Justice Occurred and the 'Clerk‘ of -the Court would have not made the erroneous 'findings ‘because* a record would have been`available

fDUE DILIGENCE OBSTRUCTED Relator.'has attempted to address the Miscarriage of Justice claim~ by ireguesting ‘the Scientific 4Documents/Reports used to prepare for Trial by the Prosecutor.- Relator is legally entitled

3;

to the scientific Doucuments/Reports through new Laws passed. to prevent or resolve wrongfull convictions but the Prosecutors Office refused to disclose' the’ information 'even though the Public demanded- Legislators 'to enact Laws for the Trahsparency of the Prosecutors Office as the result of wrongfull convictions due to the Prosecuots withholding evidence. and Reports»

'A Non-Disclosure raises the_ presumption of correctness of Relators` claims. .The Prosecutors office' does not negate the `claims by providing' the Scientific Documents/Reports Used by the Trial Prosecutor which Relator is legally entitled to.

Relator has Shown a'Due Diligence~ to investigate and properly present the 'claim of_a Miscarriage of Justice but the Webb Co; D.A.'s office does~ not `want to ’abide by the basic priciples of the U.S. Constitution.' `This x"undermines-the Publics Trust in the Governments ability to Proviaé FAIR~TRIAL.to it'S citizenry.

y Such Constitutional Violations` can not be set aside as

part of Justice and go unaddressed.

CONCLUSION Relator ~has shown a new legislative granted right of a "NEW LEGAL BASlS" standard of review, presents a clear Ministerial Duty to file and set the issues for Habeas Corpus Relief to be addressed on their Merit with a Developed Record. ~ §§ A First time claim sf a State Prosecutor violating.Relatorfs Constitutional Due Process Right to a Fair Trial has never been

'4.

addressed on; the_ merits.dtThis claim will show that absent the

constitutional violation to a‘Fair Trial No~Rational Juror would

have found relator guilty beyond a reasonable doubt;' Thus Relator is entitled to the tMinisterial Duty of the Clerk to file and

set for the Apeals Courts review issues presented.

Relator has- Diligently sought_ to provide the Scientific Documents used by the Trial Prosecutor but-has been denied access to the information even though -disclosure is' required by Law enacted by the `public demands of State Legislators\ to provide fair trials to its citizenry.

The entitledment to review is "Indisputable" Will v. United States 389 U.S. 90, 96 (1967) and "Abundantly clear." Meissner v. Fuchs, 290 S.W.Zd 941, 944 (Tex.Civ.App. - Galveston 1956) Relator has. presented an~ "Issue to require the execution of matters ,whose merit -is beyond dispute..." (Wartham v. Walker

[133 Tex_255] 128 S.W.Zd at 1151 [1939])

PRAYER Wherefore Relator Prays that lthe `Clerk' of the Court of Criminal__Appeals be instructed to FILE ANb SET for Review the Application .for'Habeas Corpus Relief recieved on 3/6/2015 and/or~ that the Court consider other.relief.such as having the Trial Court develope a record for review by conducting an evidentairy

hearing addressing the claims.

’Roy L. Smithwick'Jr. TDCJ#622814~McConnell 3001 S. Emily Dr.

` Beeville, Tx. 78l02

`DEcLARATIoN

4I, Roy L. 'Smithwick,v Jr.' Do"Here-by Declare under the penality of perjury that every statement in the foregoing Petition for Writ _of Mandamus` is true and correct. Also-that every conclusion made from the information available to me is also true and correct to the best of my knowledge. -

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