Wells, Kevin Damond

• Court: Court of Appeals of Texas
• Decided: February 9, 2015
• Docket: WR-82,835-01
• Status: Published

Opinion

CASE NO. 14-01-00582-CR

In re Kevin Wells Diamond § In The \J~~ Judicial TDCJ-ID#l040560 § § v. § District Court Of § \\t'.Cr~S County District Cleik: § tl . In His Official Capacity, § ._.f1,_4.,_.c_._c_..,. . _s___ c o u n t y , ·rex a s

~ECE~VED ~N OOURT Of CRIIVIINAl AWIEAlS FEB 09 Z~1S vJRl'l' OF MANDAMUS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW,WELLS,KEVIN DIAMOND,Relator,pro se in the above-

styled and numbered cause of action and files this Oriqinal

Application For Writ Of Mandamus,pursuant to CCrP 1.05l(right to

representation by counsel).CCrP 26.04 (appointment of counsel),

CCrP 26.051 (indigent inmate) of the Texas Code Of Criminal

Procedure, and wo~ld show the Cotirt the followinq~

RELATOR:

Kevin Wells, Diamond, TDCJ# 1040560,is an offender incarcera

ted in the TEXAS DEPARTMENT OF CRIMINAL JUSTICE and is appearinq

pro se, who can be reached at the Polunskv ~nit 3872 FM 350

South Livinqston,Texas 77351; ?olk County.

Relator is without an adequate level of understandinq of

law. Rela~or does not have the leqal understandinq required to ad

dress or argue law, therefore. relator has requested leqal repre

sentation in accord with CCrP 1.051 in the interest of justice.

Relator has forwarded a Motion· For ApPointment Of Counsel and

was duly denied· bv the trial court. In Martinez v. Ryan.132

s.ct. 1309 it quotes, "When the issue cannot be raised on direct l. review, m~reover, a prisoner asserting(***l9] an ineffective-

assistance-of-trial-counsel claim in an initial-review collateral

proceedinq cannot relv on a court opinion or the prior work

of an attorney addressing that claim. Halhert,~45 U.S- -at 619.125

S-Ct. 2582-162 L.Ed.2d 552. To present a claim of ineffective

assistance at trial in accordance with state's procedures, then,

a prisoner likelv needs an effective attornev." Relator's attor-

ney did not raise issues of ineffective assistance of counsel on

relator's direct appeal. Relator was denied the riaht to have an

attorney to represent him in collateral proceedinqs by the trial

court on or about January llth. 2015

I I .

On or about the month of November. 2014, relator forwarded the

convictina trial court an Motion For Loan Of Reoorter's Records

and was denied this riqht to argue his ineffective assistance of

counsel claims in collateral proceeddinqs, via 11.07 habeas cor-

pus. Relator was in leaal need of information in reaards to his

trial attorney's possible trial strateay; as well as what or any

investiqative work that his trial attorney mav have done. With-

out any trial records coulpled with the fact that relator is ia

norant of the law it is impoosible for relator to comprehend ,...,.._ - an ~ -:~ ·.~~

11-07 Habeas Corous Writ.which is the hiqhest writ in the land.

Quoting, Cf.,e.a--id.-at 620-621,125 S.Ct-2582,162 L.Ed 2d

552- "The same would. be true if the State did not appoint an

attorney to assist the prisoner in the initial-review collateral

proceedings. The prisnner,unlearnP.d in the law mav not comply

with the St.ate's Procedural rules or maY misaPprehend the sub

stantive detaills of federal constitutional law. (describina 2. the educational background of the prison pooulation). While

confined to orison-the prisoner is in no oosition to develope

the evidentiarv basis for a claim of ineffective assistance,

which oftP.n turns on evidence outside the trial record. Without

trial records nor attorney it is impossibl~ for relator to araue

an ineffective-assistance-of-counsel claim with any merit.

II I .

Relator's constitutional 14th Amend. rights are being violated

by not allowing him effective reoresentation on his Habeas Cor-

pus collateral proceedinas, reaardina ineffective assistance

of trial counsel claims. It 1s deemed as an "obvious truth"[***20

],the idea that "any person haled into court.who is too poor

to hire a lawver,cannot be assured a fair trial unless counsel

is provided for him." Gideon v. Wainwright-372 US- 335.344,83

s.ct. 792[2BSJ9 L.Ed.2d 799(1963) This relator requires the

quidina hand of counsel at every staqe of the judiciary svstem

and adversary svstem.

IV.

PRAYER FOR RELIEF

Relator prays that this Honorable Court grants him one of

three possibilities in his quest to argue his ineffective assis

tance of trial counsel claims; (l)the granting of his informa

pauparis claaim of indiaent,therefore forwardinq relator his

trial records,or.forwardinq relator's trial records to the oolun

sky unit on loan for relator's use or to appoint relaor with an

apoellate attornev to arque relator's ineffective assistance of

trial counsel claims on collateral oroceedinqs.

Respectfully submitted,

by 'bl-~ ·SJ y~ 3. CAUSE NO. 14-01-00582-CR

KEVIN WELLS DIAMOND IN THE \ lf+\.... JUDICIAL TDCJ-ID # 1040560

v. DISTRICT COURT OF

\\o..cs\S COUNTY DISTRICT CLERK: IN HIS OFFICIAL CAPACITY,

ORDER

On this day, came on to be heard the foregoing Relator's

Application for Writ of Mandamus and it apoears 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 any answers filed.and

a certificate recitinq the date uoon which that transmittal was

made.

SIGNED on this the day of -·· ,2G

PRESIDING JUDGE INMATE 1 S D8CLARATION I swear under oath that the facts and alleoations in the

above APPLICATION FOR WRIT OF MANDAMUS are true and correct.

RELATOR

CERTIFICATE OF SE~VICE

I hereby certify that a true and correct copy of the above APPLI

CATION FOR WRIT OF MANDAMUS was served on THE COURT OF CRIMINAL

APPEALS by placing a copy in the unit's mailbox addressed to:

Clerk: Abel Acosta, Supreme Ct. Bldq,20l W 14th St.,Rm l06,P.O.

Bx. 12308-Austin,Tx. 78711-2308 on this the 4th dav of Febuary

2015.