SMITHWICK, ROY LOUIS Jr.

Opinion

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

Clerk of the eourt: of~~:er. imina 1-- Appeals RECEIVED IN P.O. Box 12308 "'"'' !eT 0~ CR.I!IJIINAL APPEALS Austin, Tx. 78711-2308

RE: Filing SEP 29 2U15

Clerk, ~bel Acosta, C!euk Enclosed please find a copy of a Petition for Mandamus

filed to Compel you to Perform Ministerial Duties based;upon

a Developed Record.

Since you have not answered my question in regards to why

I am not allowed Due-Process of law to have NEW LEGAL BASIS

considerd 6n~A1Application for Relief I am left with no other

recourse to to seek my Due-Process of Law rights to consideration.

I was wrongfully convicted with false and Fabricated

Scientific Testimony which mets the bare minimum requirements for

a Fair Trial Under Art. 11.073 NO: ______________________

In THE SUPREME COURT 0~ TEXAS

tn Re ROY LOUIS SMITHWICK, JR.

PETITION FOR WRIT OF MANDAMUS

Roy L. Smithwick, Jr. Pro-se TOCJ~7622814 3001 s. Emily Dr. Beeville, Tx. 78102 IDENTITY OF PARTIES -":!"""':"' .. . . . ...~· ...... ·~:: "tfEL"'i\ToR, -Is--a- pers-on confined tn'the Texas Department of Criminal Justice and may be contacted as asdressed betow.

Roy L. Smithwick, Jr. TOCJ~622814 McConnell 3001 s. Emily or. Beeville, Tx. 78102

Respondent, Is ·a Clark for the Court of Criminal Appeals and may be cont~cted at the address below.

Clerlt of' the · Court of Cri.mlnal ~ppeals P.o. Box 12308, Capitol Station Beeville, Texas 78711

T~SLE OF CONTENTS ~-

·tdentity of Parties --------------------------------------11.

Table of Contents-- --11.

Index of ~uthorities--------------------------------------111.

Statement of the Case-- --111>V.

Statement of Jur\sdictton---------------------------------v;

Issues Presented-- --v1.

Statement of Facts----------------------------------------V1>1.

~rguement-- --1>3.

Prayer--------------------~------------------~------------5.

Declaration-- --s.

II. tNOEX OF AUTHORITIES .. ·, .- ~·

l· Crlm. Codes and Proc. Art. § 11.07 Sec. 4a{ll&(2l~----III>5

2. Tex. Gov~ Code § 22 --v. 3. Hainesv:a~6Q~~~4?4 u.s. 319,320 (1972)---------------v. 4. Wade v. Mays 689 S.W.2d 893, 897 (1985 Tex.Cr.App.)---v.

5. Ex Part(,~Neal Hampton Robbins ct,cr.J.\pp. No.73,484-~2-VI&l.

6. 83rd. Legislature, a.a. 1847, s.a. 825, & s.a. 16lt------vrr&2.

7. Will v. United States 389 u.s. 90, 96 (1967)----------4.

8. Meissner V. Fuch~, 290 S.W.2d 941, '94~ (Te~~Civ.App. . Galveston 1956)-- · - ~-4:

9. Worth~m V. Walker {133 Tex. 255] 128 S.W.2d@ 1151 (1939)3. --5.

STATEMENT OF THE CASE

The Clerk of the Court of Criminal Appeals has set aside

the tegal Statues of Article § 11.07 Sec. 4a(ll&(2) "NEW tEGAt

B~SIS" and "CONSTITUTIONAL VIOLATIONS" by a State Prosecutor

and refused to-- Fit.E ANO SET :::;:,a Application for relief under

Article 11.073, a new statue previously unavailable for considera-

tion in a Prior Application.

The Clerk of the Court of Criminal Appeals has the Minister-

lal Duty to Obey the Courts Orders within the Satatues of Law

to provide Relator his Constitutional Due-Process of Law Rights

to have issues Addressed Under the New tegat Basis granted

by the Texas Legislature and demanded by the Pubttc.

III.. Texas Criminal Codes and Procedures ~rt. § 11.07 Sac. 4a(t)~2)

allow3 for .a successive filing if a "NEW ~EG~t BASIS" or a

"CONST!TUTION~L VIOL~TION" Occurred establLsh\ng that no rational

Juror could have found Relator guilty beyond a Reasonable Doubt.

·Legislation has enacted ~rticle § 11.073 which the Court

of · Criminal Appeals has established ls a "NEW LEGAL BASIS"-

previously unavailable for consideration in a Prior Application.

Relator is citing for the first time that the Trial Prosecutor

Kno~ln~t~ and Iritentionally violated . his Constltut\onal Rights

to a Pair Trial by· bavlng Pre-Trial knowledge that the State

Offerred Scientific _Testimony .was going to ~e ~atsifled. With

out such fabricated Scientific Evidence Relator would not have

been found Guilty beyond a Reasonable Doubt and Maintained his

innocence.

Relator has satisfied . the requir~ments for a Successive

Application Under Art. U.07 Sec. 4a(l)&(2) due to the "NEW LEGAL

BASIS" (ART. llt07Y) being previously unavailable for consideration

in a prior Application and tna State Prosecutor knowingly

~ABRICATED scientific evidence violating Relator's ncONSTITUT!ONAU'

DUE PROCESS RIGHTS TO A FAIR TRI~L" which i~a nMiscarrlage

of Justice". NOTE: Relator had no reason to suspect Fraudulent

acts were committed by the Trial Prosecuto~ but upon being suspect

Relator Excerslced DUE OILEGENCE to investigate the issue by

requesting the Scientific Records and was dented the information.

Wherefore the Clerk of the Crlminat Court of Appeals has

a Constitutional Due-Process of Law Duty to FILE AND SET FOR IV. . -~"-'·---·~

REVIEW Relators ~ppli.cation for Habeas Corpus Relief or at the Minimum recomend that a Record be d_eveloped to base a .de.cisi()n. ' ,.

S'l'i\TEM'f!:NT 0&" 3URISDIC'l'tON The Supreme Court of Texas has Jurisdiction to Hear Issues of Constitutional Civil Due-Process of taw Rights granted by the Texas tegi.slatio~ tnat requires the Performance Of Ministerial Duties of a St.ata·· · Official Clerk, Under Tex. Gov. Code i 22 • . ·. . '. Relator. has presented. this·.i.ssue to .. the Court of Criminal '·. .·- .. _ ~ ;· • ;;.; ·' •. ·. ·.- ~· ~~- ·-. .l .. -e ·. _'-l .~ •• • •• ~.·: • : ';~ ·-:; •• • : "-:::_:..-: ~;~1 ~.~ ... '1- - " : ... .:-0 . . - --· ,.-- ~- ' Appeals- · .f'or review and the issue went ··unaddressed. The~~for:·e '

.- Relator i.s aware ~f no other adequat& means .to compel Clear Constitutional Due-Process of taw Ministerial Duties performed ~

by the Clerk of the Court .of Criminal ~ppeats to ~ItE ~ND SET FOR REVIEW a ~ppticatton for Habeas Corpus Relief Under New Le:ga.i"~ Basis previ.ou~ly Unavailable for c;ons·ldi;?'ra·tion~:Jn a -:.Ptl.or· Application for Relief. Relator is procee~ing Pro-Se in this cause and asks the Suprema Court of Texas to hold him to a less Stringent standard then formal P.lead_tngs made by an 1\tt.o,rney. (See -- Haines v. Hernar, 404 u.s. 319, 326 [1972]) "In determining. the specific nature of the Extraordinary relief ought, this court witt not be limited by the denomlnat\on ' • I ' •

of Petitioner's pleadings, but will ~ook to the essence of the pleading, including the prayers,· as ' . well as the record . before • !"' ' .

Us ... (See- \iade v. Ha/s·, 689 S.W.2d 893, 897 [1985 Tex.Cr.App.)) 1\

v. ' ~ . ' . . '. ,, :- . ~ ~

;··.

;.~ ..~ . . .' i , ....., IS.SUES .PRESENTED

The· Clatk of th•'dou~t o~ drtmlnal ~ppeals has ~bused hl~ Discr~tion ~~d MlQlstetlal Duty by refusin~ t~l4tors Du~~Ptoce~s ·- Appl icaliion of Laif ·r:equi.r:eing l{lin · ur 'Flf~. ~No =~F2.! ·_Fq_g_ · HEVrnEW. ' a .,.,;11/'fo-. ~ ~udces~tve Appltcatlon for Habeas dorpus Relief whW~h .~·· w

has "~mel/the Requi.rements ~at out in Criminai Codes and Pro.cedures ~·.

~rtlcle § 11.07 Sec. 4a(l)&(2).

-~~EMENT.OF. FACTS ·~ ...... ., ,. _1:,., On 3/18/2015. Relator was cited for Abuse of Writ. .. .···· ....... '~;~nstruc~ions to the Clerk were not to accept another Application •.. ,. . .

· for Habeas Cor: pus Relief· unless Relator "·•· is able 'to show '' ' ' .. in •t ~ : • ' ..... such an application that any claims presented have.not been

rasied pr:eviously and that they could not have .been presented . t·. ) ' 'I I ~ : 1

in a p~•vious application for a Writ of Habeas Corpus."

2. On Sap·. 1, 2013 Legislation enacted an Amendment to Criminal ·.\'

Codes and . Procedures to . add. Artlcle 11.073 that pertained to ,, certain ~scientif1e Evidence". j

·' 3. On Nov~ 26, · 2014 the Court of Cci~lnal Appeals found that ' I ' ; \ :,

Article 11.073 satisfi~d ihe requirement for a Successive review \ ~~~ .. \

for relief under: Art~ 11.07 Sec. 4a(l): -A "NEW LEGAL BASIS"

previously unavailable for consideration in a pri~r A~plicati~~. ' . ' (See Ex Parte Neal Hampton Robbins, Wr-73,484-02)

4. · Article· 11.073 i~ a· NEW LEGAL BASIS previously una~ailable·

~~, to relator for consideration in a prior a~plication~and t~e~efore

a STATUTORY ENTITLEMENT EXISTS. for conside~ation under.~h~

requirements set out bt L~glslation to·provide fo~ PAIR TRiALS. VI. s. Before Excerciaing Relators Newly Granted Due-Process Right to review under the New Legal Basis he DILIGENTLY SOUGHT to

find whether the State Prosecutor knew the Expert "Scientific Evidence" testimont offerred at trial was false and unreliable

by requesting the Scientific Documents/Reports used for Pre-Trial Preparation. 6. Texas 83rd Legislative House Bill 1847, Senate Bill 825,

and Senate Bill 1611 enactment all revolve around the Trans- parency of the Prosecutors· Office to Disclose information to : ' ' '

met the Publics demand to prevent wrongful! convictions and provide a Constitutional Due-Process Right to a FAIR TRIALo 1. Despite the Publics Demands the Webb Co. District Attorney

refuse9 to release scientific Documents/Reports used by the Trial Prosecutor to prepare for Trial. (Relator Presents Due Diligence to provide positive Proof of his claims but is being Obstructed to his legal right to access the proof for the claims.) s. Relator Applied for Habeas Corpus Relief on ot about Jan.

7, 2015 citing the "NEW LEGAL BASIS" of Art. 11.073 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 develop the records

for the Court of Criminal Appeals Clerk or Court to review and

make a informed decision on the Scientific Trial Testimony that

has shown to ba intentionally falsified and relied upon bf the

State Prosecutor to Obtain a conviction. VII. 10. On Mar. 3, 2015 The Clerk of the Court of Criminal Appeals, without a developed record to base an informed decision, found

that Relator did not met the Standard for review set out in

the Appeals Court Order and ignored th·e legal 'St-at~'_t~~ of Article 0 11.07 Sec. 4a(l)&(2). 11. The NEW LEGAL statute'of Article 11.073 meta the Requirements set out in Article 11.07 Sec. 4a.and the Courts Order. Relator is ENTITf-4ED BY stat_ut:e to Due-Process of Law requiring the Clerks. 0 Ministerial Duty to File and Set the Ap~lication for Review for an infotmed decision based on a Oeveloped Record.

; '· ARGUEMBNT

On 3/18/2015 The Clerk of the Court of Criminal Appeals \.

found Relator did not met the standard for review under the Order made by the Court of Crim. App. t0..rf:, the presented Application Under Article 11.073, see ccAe29,892-2l.

The Ct. of Crim. App. set out in a previous Order that

the Clerk of the court was not to accept another Application

from Relator unless: Relator u • • • is able to show in such an application that any claims presented hove not been raised pr~viously and that they could not have been presented in a previous application for a Writ of Habeas Corpus."

The Court of Crim. App. has established in Ex Parte Neal

a. Robbins, Wr-73-848-02, that "Article 11.073" is a 0 NEW LEGAL

BASIS 0 previously unavailable for consideration in a prior

application Under Article 11.07 Sec •. 4a. 1. Relator is citing article 11.073 as a "NEW LEGAL BASIS" for relief as the Article was previously unavailable for consid- ation in a prior application for celief. The 11.073 Statuit.e· established a new standard of review that was to ensure a Fair

Trial was provided to an Applicant in instances w~ere the State relied upon scientific testimony that has been discredited. Relator has therefore met the standards for relief under the legal .Statue of Article ll.07.Sec. ·4a(l) to have the issues .... addressed, but ·the · 'l'rial Court failed to develop~>~ the record to make an informed decision. ~~i Also, Relator is citing for the FIRST TIME that a "Miscarriage

of Justice" occurred by tne Trial Prosecutor's knowingly and intentionally offerred false and unreliable Scientific ~estimony

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 BEOND A REASONABLE DOUBT.

Relator has therefore met the Standards for relief under the legal Statutte of Article 11.07 Sec .. 4a( 2) to have the issue addressed, but the Trial Court failed to develop the record to make an informed decision.

DISTRICT ATTORNEY WITHHOLDING EVIDENCE Relator has attempted to address the Miscarriage of Justice

claim by requesting the scientific documents/reports used to

prepare for and introduced at - Trial by th Prosecutor. 2. Relator is legally entitled to the information that was testified to at trial and through New Laws passed to prevent a wrongful! conviction the Public now demands Transparency of

the District Attorneys Office to stop withholding evidence that nas resulted in wrongful! c.onvrtf6·ri.S> of innocent Citizens. The District Attorney's withholdi~g of Documents/Reports 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 R~lator is Legally entitled to due to the apparent matterial value to the claims made. Relator has SHOWN A DUE DILIGENCE to investigate and ?roperly present . the claim of a "Miscarriage of Justice" as required

under Article 11.07 Sec. 4a, but the Webb co. District Attorneys continues to withhold Scientific inform~tion and refuses to abide by the Basic Priciples of the u.s. Constitution to provide for Due-Process of Law. Further the Trial Court failed to DEVELOP the Records to address the issue for the higher Courts to MAKE AN INFORMED DECISION.

These Actions of State Officia!s undermine the Publics Trust in the Governments ability to provide FAIR TRIALS to it's

Citizenrt• Such Constitutional Violations can not be set aside as

merely part of Justice and go unaddi:"~$ses.~, ,, Justice is to ;serrve-~:~···· as a Truth Finding Function on behalf of. the Citizenry.

3. CONCLUSION Relat6r has shown a "New Legislative granted due process right" of Art. 11.073 established a "NEW LEGAL BASIS" standard of Review· which previously was unavailable to Relator• This satisfies the requirements f~~~,;a successive Application and presents a Ministerial Duty upon the Clerk of the Court of Criminal appeals - to file and set the issues for review basad upon a·daveloped and infqrmed recor~.

~ FIRST TIME CLAIM of a State Prosecutor violating Relator's Constitutional Due Process Right to a Pair Trial has never been addressed on the merits. This 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

has satisfied the ~equirements for· a successive Application and· Presents a Ministerial Duty ·upon ·the Clerk of the Courtf.',.Qg

Criminal Appeals to file and set the issues for review based upon a developed and informed record. Relator has Diligently sought to investigate and provide

the Scientific Information used ::·by the !rial Prosecutor but

has been denied access to the information even though disclosure

basic priciples of taw and further demanded by the Public through New Sb:t.t~te: to provide Pair Trial to the Citizens.

The entitlement to Mandamus re~i~w is "Indisputable" Will

v. United States, 389 u.s. 90, 96 (1967) and "Abundantly Clear"

Mei~snar. v. Fuchs, 290 s.w.2d 941, 944 (Tex.Civ.App. - Galveston

1965). Relator has presented. an "Issue to cequic~ the execution 4. of matters whose merit is beyond dispute •• n (Wartham v. Walk~r,

{133 Tex. 255], 128 s.w.2a at 1151 (1939]).

PRAYER Wherefore Relator Prays that the Cle~k : 6f the ~6urt 6f Criminal Appeals . be instructed tb FILE ANb SET PbR REV~EW the Application for Rabeas Corpus Relief recieved on 3/6/2615 Court of Crimihal Appeals Cause No. 29,892-21,~ Also find that a informed decision c~n ·not b~ made without a dev~lb~ed·re~o~~ from the Trial·Court ~ddr•ssirig: 1) The Disdredite~ ~cientifid Testimony Under the 'New legal Basis of Article 11.073 which was created to provid~ for FAIR TRIALS on acc~rate Scientific Testimony. and. 21 The Trial Prosectitors Pre~Trial Knowledge of the inaccurate Scientific Evidence: B6tti which affect Consti- tutional Civil Rights·to a FAIR TRIAL by a Stat• Official~

Respectfully

~Smithwick, TOCJ#622814 McCtinnell Jr.

3001 s. Emily Dr. Beeville, Tx.~~~OCl

DECLARATION I, Roy L. Smithwick, Jr. do Here-By declare under the penality of perjury that every state~ent in the ~oregoing Qocumerit are True and Correct. Also that every conclusion made from from the information av~ilab1e to ~e is also tr~e ·and Correct to the beat of my knowledge.

s. AFFIDAVIT OP INDEGENCE Y, Roy L. Smithwick Jr., Do Here-By Declare under the Penality of Perjury that in the Trial Cause of the ~oregoing

issue in the 49th District Court No. 1992CRA00041-Dl and on all appeals I have b•en found indegent and allow•d to pro~~ed

without cost:.$. !:' I am -~·p~;e:".iantally incarcerated and do not ·obt~in"

wages-for my labor for which I am consider~ a Ward of the State of Texas. I therefore. ask to. be al.lowed to proceed without costs in /

the foregoing issue to 6ompel Performance of Ministerial Duties of a State Official.

Reap ctfu1ll1S~-

~~"~/. . . ~/l~' Ro • Smithwick Jr. TDCJ#622814 McConnell 3001 s. Emily Dr. Beeville Tx. 78102