Webb, William Charles

Opinion

No. -------- IN THE COURT OF CRIMINAL APPEALS

IN RE WILLIAM CHARLES WEBB DEC 10 2015 Abal AooD, Clerk

MOTION FOR LEAVE OF COURT TO FILE A WRIT OF MANDAMUS PRO SE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, William Charles Webb, who files this his MOTION FOR LEAVE OF COURT TO ~ILE A WRIT OF MANDAMUS, and would show the court the following:

(1) Mr.Webb is seeking to file a writ of Mandamus in this court.

(2) It is only proper to file a motion for leave in order to file anything in this court.

WHEREFORE, based on the above Mr.Webb request that this court grant his motion and allow him to file a writ of Mandamus in this Honorable Court. Respectfully Submitted, William C. Webb#1888883 Hughes Unit Rt.2 Box 4400 Gatesville,Texas.76597 u.s.A . Tit Executed on this the~day of December,2015 Cause No.2012-675-C2E William Charles Webb IN THE 54TH JUDICIAL TDCJ-ID#1888883, RELATOR DISTRICT COURT OF v. JON R. GIMBLE (CmUNTY DISTRICT CLERK): IN HIS OFFICIAL CAPACITY, McLENNAN COUNTY,TX RESPONDENT

A. PLAINTIFF'S ORIGINAL APPLICATION FOR WRIT OF MANDAMUS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, William Charles Webb, Relator, pro se in the above- styled and numbered cause of action and files this Original Application For Writ of Mandamus, pursuant to Art.11.07 Sec.3(c) of the Texas Code of Criminal Procedure, and would show the Court the following: 1.

B. RELATOR 1.01 William Charles Webb, TDCJ#1888883 is an offender incarcerated in the Texas Department of Criminal Justice and is appearing pro se, who can be located at the Hughes Unit (Rt.2 Box 4400) Gatesville,Texas.76597. 1.02 Relator has exhausted his remedies and has no other ad2 adequate remedy at law. 1.03 The act sought to be compelled is ministerial, not discretionary in nature. TCCP Art.11.07 Sec.3(c) requires Respondent to immediately transmit to the Court of Criminal Appeals a copy of the application for writ of habeas corpus, any answers filed, and a certificate reciting the date upon which that finding was made, if the convicting court decides that there are no issues to be resolved. No copy of

1 the application for writ of habeas corpus, any answers

filed, and a certificate reciting the date upon which that

finding was made have been transmitted to the Court of

Criminal Appeals. Had such documents been transmitted to the

Court of Criminal Appeals by Respondent as required by

statute, Relator would have received notice from the Court

of Criminal Appeals. 2. C. RESPONDENT

2.01 Respondent, Jon R. Gimble, in his capacity as District Clerk of McLennan County, Texas has a ministerial duty to

receive and file all papers in a criminal proceeding, and

perform all other duties imposed on the clerk by law pursuant to TCCP Art.2.21, and is responsible under TCCP

11.07 Sec.3(c) to immediately transmit to the Court of

Criminal Appeals a copy of the application for writ of habeas corpus, any answers filed, and a certificate reciting the

date upon which that finding was made if the convicting

court decides that there are no issues to be resolved. Jon

R. Gimble, District Clerk, of McLennan County may be served

at his place of business at P.O.Box ~451 Waco,TX.76703.

3, ~. VIOLATION OF ART.11.07 OF THE TEXAS CODE OF CRIMINAL PROC.

3.01 The Respondent violated Art.11.07 Sec.$(c) of the Texas

Code of Criminal Procedur by failing to provide a copy of

the application for writ of habeas corpu3, any answers

finding was made to the Court of Criminal Appeals within

the time prescribed by law and within a reasonable time from the date on which the documents were requested to be

2 transmitted.

3.02 Requests for the transmittal of the application for writ of

habeas corpus, any answers filed, and a certificate reciting

the date upon which that finding was made were made by

Relator to Jon R. Gimble, Distcict Clerk, of McLennan

County, by mailed letters dated November 18,2015; November

30,2015; pursuant to Art.11.07 Sec.3(c) of the Code of

Criminal Procedure. True and accurate copies of the above

letters are attached hereto as Exhibit "A" through "B" and

are incorporated by reference herein for all purposes.

3.03 To date, Relator has received no re~ponse from Respondent

regarding Relator's request for transmittal of a copy of

the application for writ of habeas corpus, any answers

finding was made to the Court of Criminal Appeals.

3.04 As is clear from Relator's letters, Relator has repeatedly put Respondent on notice that Relator seeks the transmittal

of a copy of the application for writ of habeas corpus, any

answers filed, and a ce~tificate reciting the date upon

which that finding was made to the Court of Criminal Appeals

and that such records are required by the Court of Criminal

Appeals to act on Relator's writ of habeas corpus. Relator

has gone well beyond any requirement or obligations imposed

upon him by the Texas Code of Criminal Procedure. In

contrast to Relator's efforts, Respondent has wholly failed

to comply with the Texas Code of Criminal Procedure, Art.

11.07 Sec.3(c), is acting in bad faith, and has also failed

to afford Relator the professional and common courtesy of

any written responses to his correspondence and requests.

3 ' 3.05 Art.11.07 Sec.3(c) clearly states that "Oi]f the convicting

court decides that there are no such issues, the clerk shall

immediately transmit Gemp~asis added] to the Court of

Criminal Appeals a copy of the application, any answers

filed, and a certificate reciting the date upon which that finding was made. Failure of the court to act with the

allowed 20 days shall constitute such a finding''. Texas Code

of Criminal Procedure Art.11.07 Sec.3(c). Respondent is in violation of this procedure, ministerial duties, and thus

the laws of this state. 4. E. PRAYER FOR RELIEF

WHEREFORE, PREMISES CO~SIDERED, R8lator, William Charles

Webb, pro se, respectfully requests a finding that the

Respondent did not transmit documents to the Court of

Criminal Appeals within a reason~ble time after the date

they were requested and that Relator brought this litiggti6n

in good faith and has substantially prevailed. Relator

prays for an Ordar directing Respondent to transmit copy of the application for writ of habeas corpus, any answers

finding was made to the Court of Criminal Appeals as

directed in Art.11.07 Se~.3(c) of the Texas Code of Criminal

Procedure and as requested in Relator's letters (Exhibit

"A" through "B").

Respectfully Submitted,

By:William Charles Webb RELATOR

4 . F. UNSWORN DECLARATION OF INDEPENDENCE - - I swear under the United States Constitution that the fore- going APPLICATION FOR WRIT OF MANDAMUS is true and correct, ill that the facts and allegations are trw:! and correct. William RELAtOR _Charles _ _ _ _Webb __

Executed on this the.JE:_day of December,2015.

G. CERTIFICATE OF SERVICE I hereby certify that a true copy of the above APPLICATION FOR WRIT OF MANDAMUS was served on the Clerk of the Court of the Court of Criminal Appeals by U.S. postal mail on this the P _day of Dece:nber, 2015. William Charles Webb RELAT~--------

5 Cause No.2012-675-C2E

William Charles Webb IN THE 54TH JUDICIAL TDCJ-ID#1888883, RELATOR DISTRICT COURT OF v.

Jon R. Gimble (County District Clerk): IN HIS OFFICIAL CAPACITY, RESPONDENT McLENNAN COUNTY, TX

ORDER

On this day, came on to be heard the foregoing Relator's Application for Writ of Mandamus and it appears to the Court that the same should be:

- - -GRANTED

IT IS THEREFORE ORDERED THAT the District Clerk shall immediately transmit to the Court of Criminal Appeals a copy of the application for writ of habeas corpus, any answers filed, and a certificate reciting the date upon which that transmittal was made. SIGNED on this the ________day of ______ -------- ,2015. X ,.P"R~ES:o:"'I~~D::--:;I;:-:oN=G:---;J=u DG E Exhibit A WILLIAM C. WEBB HUGHES UNIT RT. 2:~ BOX 4400 GATESVILLE,TEXAS.76597 November 18,2015 JON R. GIMBLE DISTRICT CLERK P.O.BOX 2451 WACO,TEXAS.76703

RE: Ex Parte William Charles Webb (No.2012-675-C2E) Dear,Clerk This letter is being written in regards to the above entitled and numbered cause. The State has made an answer to my applicatioo and the Court as of yet has not designated any issues to be resolved. Please note that the State made its answer on the 19th of October 2015. Today's date is November 18,2015. My information is as follows. I ask that you forward my Writ of Habeas Corpus to the Court of Criminal Appeals in Austin,Texas please? Thank you for your time in advance to this matter. Best Regards: William C. Webb#l888883 Hughes Unit Rt. 2 Box 4400 Gatesville,Texas.76597 u.s.A EXHIBIT B

WILLIAM C., WEBB HUGHES UNIT RT.2 BOX 4~00 GATESVILLE,TX.76597 JON R. GIMBLE DISTRICT CLERK P.O.BOX 2451 WACO,TX.767'J3 November 30,2015 RE: EX PARTE WILLIAM CHARLES WEBB (No.2012-675-C2E) Dear,Clerk This letter is being written to you in rega~d3 to the above entitled and n~mbered cause. This is my second letter to you regarding this issue. I ask that you forward my writ of habeas cor~vs to the Court of Criminal Appeal5 please? My information is as follows. Thank you for your time in advance to this matter. Best Regard3:

xjU~~- No.: 2012·675·C2E

IN THE 54THJrirliCIALDISTRICT COUR~lS OCT 19 Mi 8: 33 0~ MCLENNAN COUNTY, TEXAS nY~1R~cf;cL.~ ~ . f'-1CLEN~U\i< c:~. r

I I STATE'S ANSWER TO AN APPLICATION FOR WRIT .I OF HABEAS CORPUS

""'" Pursuant to Article 11.07 of the Code of Criminal Procedure, the State of Texas, by and through the Criminal DistriCt Attorney for McLennan County, Abelino 'Abel' j

Reyna, files this answer to the Application for Writ of Habeas Corpus filed by I . WILLIAM CHARLES WEBB, hereinkfter called "Applicant." This is a case other than a I I

case in which the death penalty was ~ssessed. I Applicant alleges five groundsI for relief in . his application. The application is the I

first post-conviction writ he has filed. CONCERNING THE NEED FOR AN EVIDENTIARY HEARING

There are no controverted, pr~viously unresolved facts material to the legality of I

Applicant's confinement which would necessitate a hearing. No evidentiary hearing is I

needed or warranted under this ~pplication, because any information could be

obtained by affidavit or otherwise. i ALLEGATIONS IN THE APPLICATION Applicant contends 'that: 1) He was denied a fair trial due to :the State's introduction of inadmissible extraneous offense evidence (Ground One); ; 2) The cumulative effect of his trial counsel's errors deprived him of the effective assistance of counsel (Ground Two); ' 1 1111111 IIIII 1111111111 IIIII IIIII lllllllllllllllllll 1111 1 7 9 2 7 7 8 5 I ·.··,.

3) His right to a speedy trial was violated (Ground Three); 4) His right to remain silent wa~ violated (Ground Four); and 5) Ineffective assistance of his appellate counsel (Ground Five). GENERAL DENIAL

Pursuant to Article 11.07, all matters alleged in the application not specifically admitted by the State in this answer are denied. ANSWER OF THE STATE In his first ground for relief, Applicanfcomplains of the introduction of extraneous bad acts at trial. This issue was presented and rejected on direct appeal. In his second ground for relief, Applicant alleges ineffective assistance by his trial counsel. He complains variously that he could not communicate with his counsel due to a "conflict of interest," that this situation contributed to his counsel's failure to investigate and prepare a defense, and prevented Applicant from participating in and making informed decisions about his case. Applicant claims that his trial counsel was ineffecti':e in failing to request a "limiting instruction" and in failing to obtain an expert witness who could have supported a lesser-included offense of Attempted Arson. AppliGant claims that his trial counsel failed to object to "highly inflammatory" jury argument by the State, and failed to seek a change of venue. Finally, Applicant complains that his counsel did not call his parents to testify to an alibi defense. Applicant's claims of ineffective assistance are conclusory and unsupported by factual allegations. Many of his claims are directly refuted by the record. Applicant asserts that he has made complaint to the State Bar regarding his counsel, which have been denied. The issue of a "limiting instruction" is nebulous and unsupported by the record. Other than providing contact information for fire experts, Applicant gives no factual or legal basis to show how expert testimony would have benefitted his case, particularly in seeking a lesser included offense. The appellate court, in denying relief on this point, noted that the Arson statute contemplated the completion of the offense . 2 even in the absence of continuation after the initial ignition. Applicant has not demonstrated that the State's argument was objectionable, and supports his venue complaint only with conclusory, after-the-fact affidavits from his family members. Applicant's complaint regarding failure to call alibi witnesses does not take into account that such a defense would have been controverted by the eyewitness testimony that put Applicant at the crime scene, and was inconsistent with his lack-of-intent defense presented at trial. In his third ground, Applicant complains of a speedy trial violation. Applicant asserts no factual basis for this claim. However, the record is replete with Applicant's own dilatory tactics which caused 'delay in the trial of his case, including numerous complaints regarding a succession of trial counsel, numerous inane pro se motions, and a number of interlocutory appeals of denied motions. Applicant's fourth ground complains of an improper reference to his invocation of the right to remain silent. This issue was fully addressed on direct appeal. In his fifth ground for relief, Applicant complains of ineffective assistance by his trial counsel. This is primarily based on the failure of appellate counsel to raise an issue of admissibility under Tex. R. Evid. 403. However, the appellate ground under Rule 404(b) was presented, and the record demonstrates that presentation of Applicant's prior bad acts, when determined to be probative and admissible, was not overly- prejudicial, and raising a Rule 403 issue on appeal would have been forlorn. Further, Applicant's complaint that ineffective assistance of counsel was not raised on direct appeal is also without merit. Ineffective assistance can rarely be discerned from a cold record and is typically more suited to a habeas action. And as demonstrated above, Applicant has failed to reach the high threshold required to show ineffective assistance of his trial counsel in his application.

3 ·' CONCLUSION AND PRAYER

The State recommends to the Trial Court that this writ be dismissed as frivolous, as there are no legal or factual grounds to support Applicant's claims. Respectfully Submitted: Abelino 'Abel' Reyna Criminal District Attorney McLennan County, Texas 219 North 6th Street, Suite 200 VVaco, Texas 76701 Phone (2'54) 757-5084 Fax (254) 757-5021

S7r~z~ Chief, Appellate Division State Bar# 09019700