Owens, Ronroyal J

RONROYAL J. OWENS 851492 NEAL UNIT 9055 SPUR 591 AMARILLO, TX 79107 CERTIFIED MAIL NO. 7015 0640 0007 4461 1787 (CMRRR) JUNE 9, 2015 This document contains some COURT OF CRIMINAL APPEALS pages ~hat are of poor quality HON. ABEL ACOSTA, CLERK at the t1me of imaging. P.O.BOX 12308 AUSTIN, TEXAS 78711-2308 Re: Filing of Writ of Mandamus, Writ of Certiorari & Writ of Procedendo in cause numbers F98-01040-T & F98-67384 MT Dear Clerk: Enclosed you will find the following documents foryour filing: 1. Motion for Leave to file Petition for Writ of Mandamus, and/or Peti- tion of Certiorari and/or Petittion for Writ of Procedendo; 2. Petition for Writ of Mandamus and/or Petition for Writ of Certiorari and/or Petition for Procedendo (in F98-01040-T)(40pp.); 3. Appendix to the Petition for Writ of Mandamus, Writ of Certiorari and Writ of Procedendo (Si-Pp.); (.5q-fp·) 4. Copies of the Tex. Code Crim. Proc. Articles 42~03 and 42.09 (2pp. [f/b]); and 5. A carbon copy of this letter and self addressed postage prepaid envelope. Clerk, please file these documents with the Court and set them for an evidentiary hearing. Also, please file-stamp the carbon copy of this letter (which I have included) and return it to me .in the First-Class postage prepaid self-ad- dressed envelope I have provided. Thank you for your help in this matter. RECEIVED IN COURT OF CRIMINAL APPEALS JUN 18 2015 Abet Acosta, Clerk ·:, .. CAUSE NO. IN THE COURT OF CRIMTNAL APPEALS OF TEXAS In re RONROYAL J. OWENS MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS RECEIVED IN AND/OR COURT OF CRIMINAL APPEALS PETITION FOR WRIT OF CERTIORARI 'JUN 18 2015 AND/OR PETITION FOR WRIT OF PROCEDENDO Abel Acosta, Clerk TO THE HONORABLE COURT OF CRIMINAL APPEALS: NOW COMES Ronroyal J. Owens, petitioner (prose), complaining of the Judge of the 283rd Judical District Court, Dallas County, Tx, and pursuant to Rule 72.1 of the Texas Rules of Appellate Procedure in Criminal cases moves this Court to grant petitioner leave to file these petitions for a writ of mandamus, writ, writ of certiorari and writ of procedendo (in F98-01040-T) tendered contemporaneously with this motion. Petitioner prays that the motion be granted, the daid petitions for mandamus, certiorari and procedendo be filed and set down for a hearing, that the relief requested be granted, and for any other relief, general and special, including a stay of the proceeding below until the matters complained of in said petitions are cured. R L S - PRO SE 8514~ NEAL UNIT 9055 SPUR 591 AMARILLO, TX 79107 UNSWORN DECLARATION I, Ronroyal J. Owens,do declare under the penalty of perjury that the foregoing is true and correct. Executed on this 8th day of J CAUSE NO. ------ IN THE COURT OF CRIMINAL APPEALS IN RE RONROYAL J. OWENS, Relator From the 283rd Court of Dallas Courty, Texas PETITION FOR WRIT OF MANDAMUS AND/OR PETITION FOR WRIT OF CERTIORARI AND/OR PETITION FOR WRIT OF PROCEDENDO (in F98-01040-T} RONROYAL J. OWENS 851492 NEAL UNIT 9055 SPUR 591 AMARILLO, TX 79107 Relator - Pro Se CAUSE NO. IN RE RONROYAL J. OWENS Relator ' IDENTITY OF PARTIES The following is a complete · list of parties, the attorneys, and any other person who has an interest in the outcome of this lawsuit: · 1 •. Relator, Ronroyal J. OWens, TDC# 851492, at Nathaniel J. Neal unit, 9055 Spur 591, Amarillo, Tx 79107. 2. Respondent, the Hon. Rick Magnis, Judge, 283rd Judicial District Court, Dallas County, Texas. 3. Real Party in interest, the Hon. Susan Hawk, Dallas County District Attorney, Frank Crowley Courts Bldg. 133 N. Riverfront Blv8. LB 19, Dallas, Tx 75207-4399 i TABLE OF CONTENTS IDENTITY OF PARTIES ...................................................... •• • 1 INDEX OF AUTHORITIES .................................................... • • iii INTRODUCTION •••••·•••••.•••••••••..••.••.•.•••••••••••••.•••.••.•••••••.•••••••• .v STATEMENT OF THE CASE ........ vi STATEMENT OF JURISDICTION •••••••••••• vi\ ISSUES PRESENTED ••••• vii\ STATEMENT OF FACTS ••••••.••.••••••••••••••.••••••••••.•••••.•••••..• •••••••••• 1 ARGUMENT Issue 1: The trial court's judgments nunc pro tunc entering Michelle Moore as OWens's counsel is void .•.•••••••••••••••••••••••••••••••••• 6 Issue 2: Thetrial court's convict-ions and sentences are·void due to OWens' lack of representation •••.•••• ~ ••••••••••••.•••••.••••••.••••• 13 Issue 3: The trial court failed to pronounce Owens' sentence in F98-01040 in his presence ••••••.•••.••••••••••.•.•.•..•••••••• 21 Issue 4: The trial court's judgrnentsheets are void in F98-01040 ••••••••• 24 PRAYER •••••••••••••••••••••••••••••••••••••••••••••••••••.•••••••••••••••••• 31 CERTIFICATION ••••••••••••••••••••••••••••••• 32 UNSWORN DECLARATION •••••••••••••••••••••••••••••••• 32 APPENDIX TEXT·OF RULES AND LAWS ii INDEX OF AUTHORITIES CASES Allen v. State, 20 S.W.3d 164 (Tex •• App.-Texarkana 2000) ••••.•.•••.•••••• 6, 12 Bowens v. Carnes, 343 S.W3d 805 (Tex.Crirn.App. 2011) ••••••••.••••••••••.••••• 7 Braxton v. Dunn, 803 S.W.2d 318 (Tex.Crirn.App. 1991) •••.••••••••••••••••• 7, 13 Collins v. State,240 S.W.3d 925 (Tex.Crirn.App. 2007) ••.•.••••.• 6, 7, 9, 10, 25 Collins v. State, 257S.W.3d 816 (Tex.App.-Texarkana 2008) ••••.••••••••••.•••• 13 Davis v. State,l95 S.W.3d 708(Tex.Crirn. App. 2003) ••••••..•••••••••••••••••• 20 Dickson v. State, 988 s.w.2d 261 (Tex.App.-Texarkana, l998,pet. ref'd) ••••••• 6 Eidson v. Edwards, 793 S.W.2d l (Tex.Crirn.App. 1990) ••••••••••.•••••• 6, 13, 24 Ernpy v. State, 571 S.W.2d 5.26 (Tex.Crirn.App. 1978) ••••••••••••••.•••• 14, 16,19 Ex parte Beck,922 S.W.2d 181 (Tex.Crirn.App.l996) ••••.••••••.••••••••• ~ •••••• l3 Ex parte Brand 1 822 s. W. 2d 636 (Tex. Crirn. App. 1992) •••••••.••••.••••.••. 21, 26 Ex parte Davis, 947 S.W.2d 216 (Tex.Crirn.App. 1996) •••••••••••••• ,••••••••••• 13 Ex parte Dickerson, 702 S.W.2d 657 (Tex.Crirn.App. 1986) ••••..••••••.•••.•• 7, 25 Ex parte Gonzales, 945 S.W.2d 830 (Tex.Crirn.App. 1997) •• ~·······14, 16, 19, 20 Ex parte Madding, 70 S.W.3d 131 (Tex.Crirn.App. 2002) •••.•••••••••••.•.•.••.. 25 Exparte McCain, 67 S.W.3d 204 (Tex.CrirnApp. 200l) •••••.•••••.•••••.••.•• ~ ••• l3 Ex parte Seidel, 39 S.W.3d 221 (TexCrirn.App 2001) ••••••••••••••••••••...•••• 26 Ex parte Stanford, 571 S.W.2d 28 (Tex.CrirnApp. 1978) ••••.••••••••••••••••••• 14 Ex parte Williams, 65 S.W.3d 656 (Tex.crirn.App. 2001) •••••.•••••••••..••••••• 13 Fanniel v. State, 73 S.W.3d 557 (Tex.App.-Houston [lst Dist] 2002) ••.•••••••••.••••••••••••••••••••••••••••••••••• 7, ll, 25, 30 General Motors v. Gayle, 951 S.W.2d 469 (Tex.l997) •••••••••••••••••••••••••• 13 In re Dickason, 987 S.W.2d 570 (Tex.l998)(0rig. proceeding) •••••••••• 6, 13, 24 In re Fuselier, 56 s.W.3d 265 (Tex.App.-Houston [lst Dist.] 2001) .••••••••••••.••.•.••••••••••.•••••.••••.•••••• 7, 10, 24, 25 IR re IlaReoelc, 212 s.W.3d 922 (':PCJE.App. Fort Worth 2007) 71 llt 13 iii In re Gooch, 153 S.W.3d 690 (Tex.App.-Tyler 2005) •••••.••••••••••••••• 6, 13,24 In re hancock, 212 S.W.3d 922 (Tex.App.-Fort Worth 2007) ••••••••••••• 7, lL 13 In re Risley, 190 s.W.3d 853 (Tex.App.-Fort Worth,2001) ••••••••••••• 21, 22, 23 In re Rubio, 55 s.w.3d 238 Tex.App.-Corpus Christi 2001) ••••••••••••••••• 7, 26 Jones v. State 797 S.W.2d 33 (Tex.Crim.App.l990) ••••••••••.•••••••••• 2 1 24 1 25 Jones v. State, 795 S.W.2d 199 (Tex.Crim.App. 1990) •••••••••...•••••• 9, 25, 27 Lanford v. Fourteenth C0urt of Appeals, 847 S.W.2d581 (Tex.Crim.Appl993) •••• 21 Mizell v.State, 119 S.W.3d 804 (Tex. Crim.App. 2003) •••••••••••••••••••.•••• 13 Nix v. State,65 S.W.3d 664(Tex.Crim.App. 2001) •••••••••••••••••••••• 14 1 19, 29 Oliver v. State, 872 S.W.2d 713 (Tex.Crim.App. 1994) •••••••••••• 14, 15, 16 1 20 Porter v. Vick, 888 S.W.2d 789 (Tex. 1984) •••.••••••••••••••••••••••.••••••• 14 Simon v. Levario, 306 S.W.3d 318 (Tex.Crim.App. 2009) ••••••••.••••••••••••••. 7 Smith v. State, 15 S.W.3d 294 (Tex.App.-Dallas 2001) ••••.••••••••• • 6, 9, lO, 25 State v. Aguilera, 165 S.W.3d 695 (Tex.Crim.App. 2008) ••••••••••••.••••• 21 1 22 State ex rel. Sutton v. Bage 827 S.W.2d 55 (Tex.Crim.App. 1992) •••••••••• 6, 13 Thompson v. State, 108 S.W.3d 287 ·(Tex.crim.App. 2003) •••••••••••••• 26 1 27, 28 . 'urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429 (Tex. 1986) ••.••••••••••••••••••••••••••••••••••• 6, 14, 20, 24 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) •••••••••••••.••••••••••••••• 6, 24 Williams v. State, 194 S.W.3d 568 (Tex.App.-Houston [i4th Dist.] 2006) ••••••••••••.••.•••••••••••••••.••••••••••.••••.•.••• 14, 20 CODES Tex. Code Crim. Proc. 42.03·, §l(a) ••••••••••••••••••••••••••••••••••••••• ·••••••••••.••••• 21, 22, ·23 42.09, §1 •••••••••••••••••••.•••••••.•••••.•••••.••••••••••••••.••••••••••• 23 J.V CAUSE NO. IN RE RONROYAL J. OWENS Relator RELATOR'S PETITION FOR WRIT OF MANDAMUS AND/OR RELATOR'S PETITION-FOR WRIT OF CERTIORARI AND/OR RELATOR'·s PETITION FOR WRIT OF PROCEDENDO (IN F98-01040-T) Relator, Ronroyal J. Owens, submits these petitions for writ of mandam~s~, ·writ of ce~orari· and writ of procedendo complaining of the orders of the Honorable Molly Francis (former presiding judge) and the Honorable Rick Magnis, current presiding judge of the 283rd Court of Dallas County, Tesxas. For cl~rity, relator is referred to as Ronroyal Ownes; respondent, the Hono~ rable Molly Francis and the Honorable Rick Magnis, is referred to by name; and the real party in interst is referred to as real party in interest I the Honorable Susan Hawk (Dallas County District Attorney). v STATEMENT OF THE CASE Relator/ Ronroyal OWens, filed a motion for a judgment nunc pro tunc for the trial judge to correct the court's records by removing the Honorable Michelle Moore from the judgment as OWens' attorney, but the trial court denied OWens's request. The respondent is the Honorable Rick Magnis, presiding Judge of the 283rd Judicial District Court of Dallas County, Texas. Judge Rick Magnis lacked authority to enter Michelle Moore in the trial court's judgment as Owens' attorney when Moore was never appointed to represent him and no documented proof of Moore's appointment exists. Relator filed a petition for writ of mandamus in the Fifth court of Appeals on February 6, 20i2. The panel that considered the petition consisted of Justices Morris, Ricther and Lang-Miers. The court of appeals denied the relief requested in the petition on February 16, 2012. 1. Justice Richter wrote the opinion for the panel. STATEMENT OF JURISDICTION This Court has jurisdiction to issue a writ of mandamus, writ of certiorari.and writ of procedendo. See Tex.Const. art. 5, §S(c), Article 4.04, § 1 of the Code of Criminal Procedure and the Texas Rules of Appellate Procedure 72.1 This petition for writ of mandamus was first filed in the Fifth Court of Appeals, which denied the relief requested. See Tex.R.App.P. 52.3(e). A copy of the order denying the petition is included in appendix 19. vi ISSUES PRESENTED Issue.: 1: The trial court's August 31, 2009 judgment and sentence nunc pro tunc and October 31, 2011 subsequesnt judgment and sentence nunc pro tunc, judgment and sentence and order entering Michelle Moore as owens' coun- ·sel is void." Issue 2: The trial court's December 2, 1998, judgment of conviction and sentence is void due to Owens' lack of representation. Issue 3: The trial co8urt failed'to pronounce OWens' sentence in cause number F98-01040-T in his presence as required by article 42.03, §l(a) of the Code of Criminal Procdure. Issue 4: The trial court's original judgment. sheet·, corrected judg- ment sheet, August 31, 2009 judgment and sentence nunc pro tunc and October 31, 2011 subsequesnt judgment and sentence nunc pro tunc are void in cause number F98-01040-T. vii STATEMENT OF FACTS Relator, Ronroyal J. OWens, initially retained the Honorable Catherine Shelton as his attorney on June 15, 1998 (appendix 1). On July 15, 1998, the trial court approved Shelton to be "counsel for Defendant Ronroyal J. Owens" (appendix 2). Shelton actively represented· him until she finally filed motions for a new trial in his caSes on December 11, 1998 (appendix 3) • But nine days earlier, on Detember 2, 1998, Judge Molly Francis held court proceedings in causes F97-75579 and F98-67384 because she "realized that [she] had neglected to actually find [Owens] guilty" (appendix 4(c) lines 3-4) and that she needed to correct this "mistake" (appendix 4(d) line 9). Shelton, however, was completely absent from the proceedings and the trial judge said she. had "been unable to get Ms. Shelton to come" (appendix 4(b), lines 5 .& 6) and had. "tried repeatedly to get ahold of Ms. Shelton (appendix 4(c), lines 1&2) ••.• to come[, but s]he ••. refused to respond to phone calls, has refused to come down, [and] has refused to send anybody down to represent her office" (appendix 4(c), lines 10-12). Despite Shelton's total absence, Judge Francis still found Owens guilty "in each of the above numbered causes [F97-75579-T & F98-67384-MT] •••• and set ••• punishment in each case at 20 years confinement in the state penitentiary" (Appendix 4(d) , lines 12 & 15-16). While Shelton was completely absent from the December 2nd hearing, "Ms. Michelle Moore, the public defender out of [Judge·Francis'] court" was present (appendix 4(b), line 10). But the reporter's record does not reflect Judge Francis appointing Moore as Owens' counsel for the proceedings and neither does the trial court's docket sheets (appendixes 4(b-d) and 5). 1 of 32 Prior to being convicted and sentenced on December 2, 1998, OWens did not declare himself indigent, hed did not request the appointment of the public defender nor did he execute a waiver of counsel. After the trial court convicted and sentence owens, then it informed him "[n]ow, Ms. Moore can talk to you about anything ••• " (appendix 4(e), line 4) and had Moore to step in and assist him with filing his notices of appeal and motions for a new trial. Even though OWens had filed a pro se notice of appeal two days earlier (appendix 6), Judge Francis still instructed "Ms. Moore to check th[e] files and be sure that there is a notice of appeal, 2m appropriate notice of appeal. •• [and to] do the pauper one ••• while Mr. OWens is here" (appendix.4(e), lines 17-20) • The trial court told Ms. Moore to "make sure everything that needs to be signed gets signed and ••• write down the name of [Owens' appellate] attorney" (appendix 4(f), lines 3-6). Finally; during the proceeding, the trial judge had "Ms. Moore ••• file a motion for new trial" (appendix 4(h), line 21 and appendix 7) • Moore filed the motions for a new trial and the notices of appeal in cause numbers F98-01040 & F98-67384 on OWens' behalf on December 2, 1998 (appendixes 7 &8). Afterwards, the trial judge made a "12/2/98" entry in the docket sheet showing that the "[n]otice of appeal [was] filed with assistance of P D [public defender]" and "[n]otice of appeal filed -P D assisted" (appendix 5). Next, Judge Francis entered judgmentsheets in cause numbers F98-01040 & E:98-67384 listing OWens' conviction date as "11/13/98" and "Catherine Shelton as the attorney for Defendant OWens" (appendix 9). Later, the· trial court entered "corrected judgment" sheets in F98-01040 & F98-67384 without· notifying OWens (appendix lO(a~b)).OWens is currently serving time in TDCJ in cause numbers F98~01040-T and F98-67384-MT. See appendix 11 (a-b). Ten years after Judge Francis convicted him, OWens filed his initial Motion for Entry of Nunc Pro Tunc Judgment asking the Hon. Rick Magnis, the new presiding judge of the 283rd Judicial.Distric Court, to make the record "accurately reflect. •• December 2, 1998 as Owens' conviction date, the start of his sentence and his representation by attorney Michelle Moore" (appendix 12(e)). Judge Magnis granted the motion and entered a judgment and sentence nunc pro tunc showing th~'Owens was convicted on December.2, 1998" and "was represented by the Hon. Michelle Moore ••• on December 2, 1998". See appendix 13. After OWens had filed this motion, he received two letters from Moore which caused him to suspect that Moore was not his attorne. Moore informed OWens: "Judge Francis had me step.in for the final part of the sentencing phase •..• Since I was the public defender in Judge Francis' court, she had me step in for the formal sentencing" (appendix 14); and "Judge Francis had me stand in for Catherine Shelton on you senten- cing [because] your attorney, Catherine Shelton failed to appear for the sentencing" (appendix 15). When OWens motioned the trial court for a copy of Moore's attorney-client ·file, Judge Magnis inquired into the matter and Moore responded: "Dear Judge Magnis: [~]·I have no file onRonroyal Owens. I never had a file on that case since I was pulled in to stand with Mr. OWens on.the verdict only. Catherine Shelton was the attorney of record ••• " (appendix 16). Because Moore denied being OWens' attorney-of-record and claimed that Judge Francis only had her "step in," "stand in," and "stand with" him for the December 2nd proceeding, OWens perused the court reporter's record and found that Judge Francis only stated that she "was going to appoint [Owens] 3 of 32 number one, a lawyer to sit in with [him]" (appendixes 4(c), lines 24 & 25 and 4(d), line 1), but the court never- orally nor formally on the record appointed Moore as OWens' counsel. See appendix 4(b-d). Even the judg's docket sheets fail to reflect Moore's appointment as his counsel (appendix 5). Realizing this, OWens filed a second Motion to Correct Judgment and Sentence by Nunc Pro Tunc and presented Moore's letters as "new·information" and proof that Moore was not his attorney - along with the December 2nd reporter's record and the court's docket sheets (appendix l7(a-f)). Using these doc uments as evidence, Owens requested that his judgment "correctly demonstrate that ••• Shelton was [his] attorney of record and that ••• Moore was never appointed to represent [him]" (appendix l7(e)). Specifically, Owens argued that- "the law require[d] that the judgment accurately reflect [his] attorney of record and 'its entry [into the judgment] [wa]s a mini- sterial act' for the courtto perform [and] ••• [t]he 'Judgment and Sentence'... c[ould] only reflect. ••. Shelton was [his] attorney of record through 12/ll/98 because that's what.actually occurred under Judge Francis ••• " (appendix l7(d)). OWens even apologized to the trial court for incorrectly asking it to enter Moore in the judgmet as his counsel and explained that he was "confused about [his] representation ••• on [D]ecember 2nd" (appendix l7(d)). The trial court realized that "Catherine Shelton was the actual attorney who was still representing OWens" but it .relied solely on Moore's unverified letters to make the following.ruling: "Because Michelle Moore did stand-in as counsel ••• and because OWens was also still being represented by •••• Shelton, the Court is granting the motion nunc pro tunc to the extent of directing that the judgment reflect that OWens was represented by ••• Shelton and ••• Moore." See Appendix lS(b). The trial court denied Owens' request to remove Moore from the record as counsel. Owens filed a Petition for Writ of Mandamus challenging the trial court's adverse fuling and on February 16, 2012, the Fifth Court of Appeals in Dallas, Texas denied Owens' writ of mandamuus (appendix 19) and his motion for a rehearing (appendix 20). Finally, to eliminate any questions about Moore's appointment as Owens's counsel on December 2,1998, Owens asked the Dallas County District Clerk for a certified copy of the trial court's order appointing Moore as his counsel (appendix 21) • The clerk responded: "Mr. Owens, ~ Our department scanned your case file and did not find any documentation electing Michelle Moore as counsel." Appendix 22. Now, after review in the court of appeals, Owens come to this Court of Criminal Appeals for mandamus relief in this case. ARGUMENT Issue 1: The trial court's August 31, 2009 judgment and sentence nunc pro tunc and October 31, 2011 subsequent judgment and sentence nunc pro tunc, judgment and sentence and order entering Mich~lle Moore as Owens's counsel is void. ARGUMENT & AUTHORITIES Mandamus is an extraordinary remedy that the Court of Criminal Appeals grant sparingly. State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Crim. App. 1992). It should be granted only when the trial court has clearly abused its deiscretion and no adequate remedy by appeal exists. Walker v. Packer, 827 S.W.2d 833,839-840(Tex.l992). Ordinarily a relator must show that he has no adequate remedy to appeal, but a trial court's adverse ruling on a movant's motion for a judgment nunc pro tunc is not.appealable and can only be attacked by a writ of mandamus. Allen v. State, 20 S.W.3d 164,165(Tex.App.-Texarkana 2000). Also, a void judgment claim is an exception to this rule. In re Gooch, 153 s.w .. 3d 690, 693(Tex.App.-Tyler 2005). Mandamus is therefore appropriate to set aside or correct a trial court's void order. In re Dickason, 987 S.W.2d 570,57l(Tex.l99~(0rig. proceeding); Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429,43l(Tex.l986); and Eidson v. Edwards, 793 S.W.2d 1,5(Tex.crim.App. 1990). An order is void when a trial court has no power or jurisdiction to render it. Urbish v. 127th Judicial · Dist. Court, 708 S.W.2d at 431. In nunc pro tunc proceedings, . trial courts do not have authority to "change the court's records to reflect what it .believes shold have been done ••• [because] there must be proof that the proposed judgment was actually rendered or pronounced" and "actuallyhappened in court." Collins v. State, 240 S.W.3d 925,928(Tex.Crim.App.2007); Smith v. State, 15S.W.3d 294,299(Tex.App-Dallas 2001). Trial judges are also prohibited from correcting judicial errors and omissions through a judgment nunc pro tunc. See Dickson v. State, 988 6 of 32 S.W.2d 261,264(Tex.App~Texarkana,l998, pet.ref'd); Ex parte Dickerson, 702 S.W.2d 657,658(Tex.CrimApp.l986). When a judgment nunc pro tunc corrects a judicial error, the judgment is void and the matter becomes reviewable only by a writ of mandamus. See Fanniel v. State, 73 S.W.3d 557,560(Tex.App.- Houston [1st Dist.] 2002);In re Fuselierr, 56 S.W.3d 265,267(Tex.App-Houston [lst Dist] 2001); and In re Hancock, 212 S.W.3d 922,927(Tex.App-Fort Worth2007) Under review, however, the relator must.demonstrate that the act which he seeks to compel is ministerial, Braxton v. Dunn, 803 S.W.2d 318,320(Tex.crim. App.l991), because "the facts and circumstances dictate but one rational decision under unequivocal, well~settled ••• clearly controlling legal principles" and the facts are indisputed" and "the 'law clearly spells out the duty to be performed ••• with such certainty that nothing is left to the exercise I of discretion or judgment." See Bowens v. Carnes, 343 S.W.3d 805,810(Tex.Crim App. 2011); Simon v. Levario, 306 S.W.3d 318,32l,n.6(Tex.Crim.Appp2009). Trial courts always have a ministerial duty to vacate and withdraw void judgments and orders because they lack authority to enter these rulings in the first place. In re Ruio, 55 S.W.3d 238,24l(TexApp.-Corpus Christi 2001); Stearnes v. Clinton, 780 S.W.2d 216,220(Tex.Crim.App 1989). Judge Rick Magnis' failure to remove Michelle Moore from the judgment as representing owens - and as requested by OWens - is a failure to perform a ministerial function under the facts of this case, because Judge Magnis .. · lacked authority to enter a judgment nunc pro tunc (reflecting that Moore represented OWens) without proof that the trial court appointed Moore as 'i OWens' counsel. Collins v. State, 240 S.W.3d 925,928(TexcrimApp 2007). ./ 7 of 32 Therefore, the trial court's August 31, 2009, and October 31,2011, judgments nunc pro tunc are void and Judge Magnis now has a ministerial duty to vacate them. Stearnes v. Clinton, 780 SW.2d at 220. In Stearnes v. Clinton, this Court explained that "'[i]f [a trial judge] did not have authority [to make his rulings] it [i]s his ministerial duty to vacate the orders.'" 780 S.W.2d at 220. Here, Judge Rick Magnis did not have the authority to enter Michelle .Moore in the court's records as OWens' counsel because the court reporter's record, the trial court's records and the district clerk's 'reco:t:ds:; · demonstrate that Judge Molly Francis (the original presiding judge) never rendered, pronounced nor ordered the appointment of Moore as OWens' attorney. 1. The Court Reporter's Record According to the reporter's record, Michelle Moore was, indeed, present at the December 2nd hearing, but no where does it reflect Judge Francis "rendering" or "pronouncing" Moore's appointment as OWens' counsel. This fact is ~vident in the first three pages of the trial judges exchange with Owens before and while the court was convicting and sentencing him to .prison. Appendix 4(b-d). 2. The Trial Court's Records Likewise, the trial court's docket sheet entries and notations on " "12/2/98" fail to reflect the appointment of'Moore to represent Owens bbefore or during his formal adjudication and sentencing (appendix 5). Even Judge Francis' judgment sheets and "corrected" judgment sheets -which accurately relect Catherine Shelton as Owens' only counsel -do not list Moore as OWens' attorney (appendixes 9(a & b) and lO(a & b)). 8 of 32 3. The District Clerk's Records Finally, when Judge Rick Magnis denied OWens' request to remove Moore from the records as his attroney, OWens wrote the Dallas county District Clerk for clarification about Moore's representation and requested a copy of Judge Francis' order appointing Moore as his counsel (appendix 21). The clerk confirmed Owens' claim that Moore was not his attorney by responding: "Mr. OWens,(,-r] Our department scanl')ed your case file and did not find any documentation electing Michelle Moore as counsel" Appendix 22. The court reporters record, the trial court's docke.t sheets· and judgment sheets and the district clerk's records are ineluctable proof that Judge Molly Francis never appointed Moore to represent OWens in 1998. Under these circumstances, Texas law is well-settled that trial judges do not have the authority to enter a judgment nunc pro tunc to change the records when there is no proof "that the event in question actually occurred" nor was rendered o~ P£ORe earlier. See Jones v. State, 795 S.W.2d at 201; Smith v. State, 15 S.W.3d at 299; Collins v. State, 240 s.W.3d at 298. Based on State law, Judge Magnis lacked the authority to enter a judgment nunc pro. tunc and a subsequent judgment nunc pro tunc "directing that the judgment reflect that OWens was represented by ••• Michelled Moore" (appendixes 13 & 18(b)) when there simply is no proof thatJudge Molly Francis ever rendered or pronounced Moore as OWens' attorney. See Collins v. State, 240 S.W.3d at 928 and Jones v. State, 795 .S.W.2d at 201, n.7. Phlt another way, before Judge Magnis could have any authority. to enter a judgment nunc pro tunc refleeting Moore as OWens' counsel -some 13 ~ears later, there needed to be proof that back in 1998 Judge Molly Francis (the original judge in the proceedings) actually rendered a judgment or issued an order appointingMoore as OWens' attorney. But here, there ~s a complete absence of "any documentation electing Michelle Moore as [Owens'] counsel" (appendix 22). Without any actual proof of Moore's appointment, Judge Magnis erred and abused his discretion in finding that " .•• Michelle Moore did stand:....in as counsel" (appendx 18(b)) and therefore he lacked authority to dirct Moore's entry into the records as representing Owens. Moreover, Judge Rick Magnis was without any authority to enter a Judgment nunc pro tunc and subsequent judgment nunc pro tunc "directing that the judgment reflect that Owens was represented by ••• Moore" (appendixes 13 & 18(b)) because these entries actually corrected a judicial omission and error that was committed by Judge Molly Francis over a decade ago. Since the records prove that Judge Francis never appointed, rendered nor pronounced Moore to be Owens' attorney, this omission was a judicial error made by Judge Francis and not a clerical error. The law unequivocally states that a judgment nunc pro tunc may not correct judicial omissions and errors. See In re Fuselier, 56 S.W.3d at 267 and Smith v. State, 15 s.W.3d at 299. Even if Judge Magnis believed that his predecessor (Judge Francis) really meant to appoint Moore, Judge Magnis still could not enter a subsequent judgment nunc pro tunc correcting J1.,1dge Francis' "omissio!l or error" nor could he change the recors to "reflect what [he] believes should have been done" during the December 2nd proceedings. Smith v. State, 15 s.w.3d at 299 and Collins v. State, 240S.W.3d at 928. Thus, Judge Rick Magnis' judgment nunc pro tunc and subsequent judgment nunc pro tunc correcting Judge Francis' judicial error (in failing to actually appoint Moore), exceeded his authority and involved a judicial determination that Moore represented Owens. This act of judicial reasoning rendered the trial court's judgments void. See Fanniel v. State, 73 S.W.3d at 560 and In re Hancock, 212 s.w.3d at 927 (stating that judgments nunc pro tunes must be free from .judicial reasoning otherwise they are void). In this situaltion, the law plainly states that "a judge who enters a \loid [judgment] has a ministerial duty to vacate the order" because either he lacked authority to enter ·the ruling or his ruling exceeds the court's jurisdiction. See Stearnes v. Clinton, 780 S.W.2d at 220 and Inre Rubio, 55 S.W.3d at 241. Here, Judge Magnis lacked the authority to enter a judgment nunc pro tunc showing Moore as Owens' counsel and directing that the judgment "reflect that Owens was represented by ••• Moore . " when Judge Molly Francis never appointed Moore as Owens's attorney. Thus his judgments entering Moore as Owens's counsel exceeded the trial court's authority and were the product of judicial reasonihg. Under controlling law, the circumstances and facts of this case dictate one rational course for the trial court to follow: to vacate that part of the August 31, 2009 and october 31, 2011 Judgment nunc pro tunc and subsequent judgment and sentence "directing that the judgment reflect Owens was represented by ••• Moore." Owens has a clear right to the relief sought for the following reasons: 1. The facts and circumstances dictate one rational decision under un- equivocal and well-settled law. Specifically, the court's records demon- strate that Judge Molly Francis never appointed,Michelle Moore to repre- sentOWens, therefore Judge Rick Magnis lacked authority to enter Moore in the records as Owens' attorney by judgments nunc pro tunc. Conse- quently, JudgeMagnis' judgments nunc pro tunc are void and he is therefore duty-bound to vacate that protion of the August 31, 2009 and October 31, 2011 nunc pro tunes naming Michelle Moore as representing Owens. Stearnes v. Clinton, 780 S.W.2d at 220. 2. Because the trial court's judgment nuncpro tunc and subsequent judgment nunc pro tunc are void, it has a ministerial duty to vacate it's rulings that Moore represented Owens, and this ia a ministerial act that Owens seeks to compel •. 3. Owens has no adequate remedy at law to appeal Judge Magnis' denial of Owens' request to remove Moore from the records as his attorney, therefore he must seek mandamus relief. Allen v. State, 20 S.W.3d at 165. 4 •. Owens has a clear right to have the records "speak the truth" regardingwhat actually occurred in court on December 2, 1998 and to have the untrue, unverified and unsubstantiated statements and ruling removed thereby eliminating any and all confusion concerning Owens' representation. Issue 2: The trial court's December 2, 1998, judgment of conviction and sentence is void due to Owens' lack of representation. ARGUMENT & AUTHORITIES Mandamus is an extraordinary remedy that the Court of Criminal Appeals grants sparingly. State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57(Tex.Crim.App 1992). The party seeking mandamus must demonstrate that (1) the act sought to be compelled is purely ministerial; and (2) there· is no other adequate remedy of law. Braxton v. Bunn, 803 S.W.2d 318,320(Tex.CrimApp.l991). But a void judgment is an exception to the no-adequate-remedy rule. See In re Gooch, 153 S.W.3d 690,693(Tex.App.-Tyler 2005). Ordinarily, a void judgment of conviction is reviewable in habeas corpus proceedings. See Collins v. State, 257 S.W.3d 816,817(Tex.App-Texarkana 2008); Exparte McCain_, 67 S.W.3d 204,207, n.7 (Tex.Crim.App. 2001); Ex parte,Davis, 947 S.W.2d 216(Tex.Crim.App· 1996). But where a party is entitled to a writ of mandam us on one issue, judicial economy dictates·:that this. Court of Criminal. Appeals "should remedy the trial court's (void judgment] by mandamus" -even though an adequate remedy by writ of habeas corpus is available. See General Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997). Also, a void judgment may be raised at any time and any court with jurisdiction over a criminal case can "notice" and "correct" an illegal sentence. See Exparte Beck, 922 S.W.2d 181182 (Tex.Crim.App 1996); Mizell v. State, ll9 S.W.3d 804, 806 (Tex. Crim. App.2003); and Exparte Williams, 65 s.w.3d 656(Tex. Crim.App. 2001). Mandamus is therefore, appropriate to set aside a trial court's void order or to recind a void order. See In re Hancock, 212 S.W.3d 922,926 (Tex. App.-Fort worth 2007); In re Dickason, 987 S.W.2d 570,57l(Tex 1998) (orig. proceeding); and Eidson v. Edwards, 793 s.W.2dl,5 (Tex.Crim.App.l992) and Porter v. Vick, 888 S.W.2d 789 (Tex. 1984). An order or judgment is void whe\n a trial court lacks authority to render it. See Urbish v. 127th Judicial District Court, 708 S.W.2d 429, 431 (Tex.l986). In criminal proceedings, "[t]he Sixth and Fourteenth Amendments ••• guarantee that a person brought to trial in any state.· •• must be afforded •.. counsel before [] he can be validly convicted and punished by impriso: nment. " See Williams v. State, 194 S.W.3d 568,576 (Tex.App-Houston[l4th Dist.] 2006). Therefore, if a Texas criminal defendant .is r.ot informed of his right to counsel, then his "incarceration arising out of the conviction •.• is void." Expar~e Gonzales, 945 S.W.2d 830,836 (Tex.Crim.App.l997). Or, if an accused "is required to face criminal trial proceedings without []counsel, when such has not been waived," this too is a void proceeding. See Nix v. State, 65 S.W.3d664,668 (Tex. Crim. App. 2001). Whenever a criminal defendant is denied his constitutional right to representation (without waiving counsel), this Court of Criminal Appeals declares the conviction to be void because a "'defendant is not punishable by imprisonment if he is unrepresented by counsel unless he waives counsel!~' See Ex parte stanford, 571 S.W.2d 28(Tex. Crim. App. 1978) and Empy v. State, 571 S.W.2d 526, 528 (Tex.Crim.App.l978). Thus when a criminal defendant appears in court without counsel (and has not waived representation), Texas trial judges "may not conduct any adversarial judicial proceedings with respect to formal charges until the accused is represented by an attorney." Oliver v. State, 872 S.W.2d 713, 716 (Tex. Crim. App. 1994). Ultimately, it is a trial court's ministerial duty·to vacate and withdraw its void judgment when it lacked the authority to render it ~ Stearnes v. Clinton, 780 S.W.2d 216, 220 (Tex.Crim.App. 1989). In this case, Judge Molly Francis (the original presiding judge) lacked authority to convict, sentence and imprison Owens on December 2, 1998, because he stood before her totally unrepresented by counsel and had not waived his right to representation. The trial court's docket sheets show that on "12/2/98" the trial judge specifically brought OWens to court to expressly ·find him guilty and to sentence him to "20years confinement" (appendix 5). _But the court reporter's record also reflects that Catherine Shelton, Owens' retained lawyer, did not attend the preceedings and that the trial court "ha[d] been unable to get Ms. Shelton to come" to the hearing (appendix 4(b), lines 5 & 6). During the proceedings, Judge Francis explained to Owens that she attempted to contact his attorney as follows: "I have tried repeatedly to get ahoid of Ms. Shelton to ask her to come back down her because •.• I realized-that I had neglected to actually find you guilty •••• I tried to get Ms. Shelton to come. She has refused to respond to phone calls, has refused to come down, has refused to send anybody down to represent her office." Appendix 4 (c), lines 1-2,3~4, 9-12. Despite the trial judge's failed efforts to secure Shelton's presence to represent OWens at the hearing, Judge Francis still went ahead and found him guilty and "set his punishment... at 20 years confinement in the state penitentiary" (Appendix 4(d), lines 15-16) -without affording him any representation. According to this Court's holding in Oliver v. State, the trial court was prohibited to proceed as it did. When OWens entered the courtroom without his reta-ined lawyer (Shelton) and the the trial court had informed him that it had "been unable to get Ms. Shelton to come in ••• "(appendix 4(b), lines 5 & 6), instantly, the trial judge was precluded from convicting, sentencing and imprisoning OWens until he was lawfully represented by an attorney. 872 s.w.2d at 716; Empy v. State, 571 s.w.2d at 528. The Oliver- Court ruled that in this situation Judge Francis actuually had a ministerial duty to conduct a thorough examination of Owens to discrn "why" he was without counse1 and to protect his Sixth Amendment right-to-counsel. The trialjudge's inquiry needed to: 1). make sure OWens "underst[oo]d the importance of legal counsel" a the December 2, 1998, proceeding; 2). determine i f Owens "desire[d] and [wa]s eligihble for appointment of counsel"; 3). make OWens "actually aware of his·right to retain ahn attorney;" 4). "discover whether [Owens] intend[ed] to do so;" 5). give him "sufficient opportunity to retain one;" 6) • not conduct "any adversary judicial proceedings with respect to formal charges until [OWens wa]s represented by an attorney;" and 7) • "assess [ ] [whether Owens] waive [ d] • • • counsel • " Oliver v. State, 872 S.W.2d at 715-716. At the bare minimum, Judge francis had "the duty to assure that [OWens] was aware of h[is] right to retain an attorney or to be appointed counsel if the court determine[d] [] he was indigent." See Ex parte Gonzales, 945 sw. 2d at 836-37. In this case, however, Judge Francis completely failed to conduct the requisite Oliver-inquiry when she brought Owens into her courtroom to convict and punish him without first affording him any representation. According to the court reporter's record, the full extent of Judge Francis' inquiry into OWens' lone appearance without his counsel on December 2nd consisted of the following exchange: 16 of 32 5 [THE COURT:] •.• I have been unable to get Ms. Shelton to 6 come in here .•• 12 [THE COURT:] •.•• And I talked to ~you yesterday a~ut your 13 ability to talk to Ms. Shelton, and you told me you had been 14 unable to get in touch with her. 15 THE DEFENDANT: Same problem. 17 [THE COURT:] And I told you that I needed to do this ••• 19 •••. And what were we going to doabout not 20 getting her down here and you told me yesterday and I am going 21 to ask you today if that is, in fact, correct that in your 22 opininon Ms. shelton no longer-represents you;; is that correct? 23 THE DEFENDANT: That is correct. 24 THE COURT: And I told you that I was going to 25 need to gring you down today and was going to appoint you, 1 number one, a lawyer to sit in wi~h you today and to talk to 2 you about this and then; nl:liTlber two, to appoint you a lawyer to 3 handle your appeal .•• · ,,. See appendixes 4(b), lines 5 & 6; 4(c), lines 12-15, 17 & 19-25; & 4(d), lines 1-3. Based on this exchange, Judge F_rancis~ ~ examination into OWens' lack of counsel woefully failed to meet the inquiry requ~ment set forth in Oliver. Here, the trial judge merely recounts how both she and owens were "unable" to get in touch with Shelton and how Owens (mistakenly) believed that Shelton no longer represented him. But the truth is that Shelton actually contunued to active ly represent owens for nine more days - until 12/11/98 by filing a motion for a new trial on his behalf (appendix 3). While the trial judge stated that she was "going to appoint [owwens] ••• a lawyer to sit in with [him] today and to talk about this," actually, Judge Francis never appointed a lawyer to sit with OWens·and to talk to him about the proceeding he faced and his imminent fate of a maximum sentence being imposed. The trial court never informed owens of his right to retain counsel for the hearing nor did it afford him an opportunity to retain one. No Oliver-styled examination was conducted in order to safeguard and grattOwens his right-to-counsel ~n this case. Even though Judge Francis commenced the proceedings by announcing that "M [ r] • OWens is present with Ms. Michelle Moore, the public defender out of this court" (appendix 4(b), lines 9 & 10), the judge did not say Owens was "represented" by Moore. Therefore, this statement cannot be interpreted to mean that Moore was "representing" Owens during the conviction and sentencing phase of the proceedings because the court records show that Judge Francis never appointed Moore as Owens' counsel. This fact was made undeniably clear after Owens wrote the Dallas County District Clerk for a copy of the trial court's order appointing Moore as his attorney (appendix 21). In response, the clerk informed Owens that: "Our department scanned your case file and did not find any documentation electing Michelle Moore as counsel" Appendix 22. Since the reporter's record and the clerk's records do not reflect Judge Francis appointing Moore, then Moore did not lawfully represent Owens on December 2, 1998. Buth the trial court's docket sheets do reveal, however, that Moore was waiting to step in and~sist Owens in filing his notices of appeal- as per the court's instructions (appendix 5). The reporter's record also confirms this fact because it shows that the trial court involved Moore in the proceedings only after it had convicted and punished Owens. The Court stated the following upon convicting Owens: "N9w, Ms. ·Moore can talk to you about any thingyou want to tlak to her about and I will make 0er available to you before you're sent up •••• Ms. Moore is going to check those files a~d be sure that there is a notice of appeal, an appropriate notice of appeal. Let's ·do the pauper one so we can put Mr. Conkey on the bottom while Mr. OWens is here •••• Ms. Moore will get those files •••• and look through that and make sure everything that needs to be signed gets signed, gets you to sign one of the pauper oaths •••• [W] need to file a motion for new treial •••. Ms. Moore can file a motion for new trial" Appendixes 4(e), lines 4~6, 17-20; 4(f), lines 1-5; 4(h), ~lines 16 & 21. Finally, on December 2nd, when Judge Francis learned that ·it was OWens' "opinion [that] Ms. Shelton no longer represent[ed]" him (appendix 4(c), line 22) instantly, the judge had a duty to halt the proceedings and to make OWens fully aware of his need to have counsel, his right to retain counsel or his right to be appoin ted representation - if he qualified for and desired such. See Ex parte Gonzales, 945 S.W.2d at 836-37; Oliver v. State, 872 s.w. 2d at 716. But the trial court did not perform this ministerial act of informing OWens of his Sixth Amendment rights, instead, i t immediately found him guilty· and "set [his] punishment ••• at 20 years confinement in the state penitentiary" (appendix 4(d), lines 14-16) without offering him representation. Even though OWens mistakenly thought Shelton was no longer his counsel, the trial court was still obligated to conduct the Oliver~inquiry as prescribed by law. Had the trial·court did this, then it would haveknown whether owens "desire[d] and [wa]s eligible for [Moore's] appointment [as] counsel" or "discover[ed] whether [he] intended" to retain other counsel or was even waiving counsel and proceeding pro se. In this case, OWens'never waived his Sixth Amendment right )tO counsel at this hearing and nothi~ng exists in the court records demonstrrating such. See Nix v. State, 65 S.W.3d at 668; Empy v •. State, 571 S.W.2d at 568. This case is simple because the facts are so well-documented in the records that Owens' lawyer (Shelton) was totally absent from the December 2nd proceeding and that Judge Francis never appointed Moore to represent him. Under these circumstances, the law is also well-settled that the trial court did not have the authority to conduct "any adversarial judicial proceedings ••• until [Owens wa]s represented by an attorney" -absent his waiver of counsel. See Oliver v. State, 872 s.W.2d at 716. Because. Owens never waived counsel and was totally unrepresented at the December 2nd proceedings, Judge Francis' judgment of conviction ~s absolutely void. See Williams v. State, 194 s.W.3d at 576; Ex parte Gonzales, 945 S.W.2d at 837; Davis v. State, 195 . S.W.3d at 708 and Urbish v. 127th Judicial District Court, 708 S.W.2d at 431. Consequently, the 283rd Judicial District Court now has a ministerial duty to vacate and withdraw its judgment of conviction and sentence because it had no authority to render it. See Stearnes v. Clinton, 780 S.W.2d at 220. Owens has a clear right to the relief sought for the following reasons: .1. The facts and circumstances demonstrate that the trial court convicted and punished OWWens when he was totally.unrepresented ' and had not waived his right to counsel.· Thus, the\fudgment of conviction is void and the triai court has a ministerial duty to vacate and recind its judgment of conviction and sentence. 2. A void juqgment can be raised at anytime before a court with jurisdiction over a criminal case and is exempt from the no-adequate -remedy rule for mandamus relief. 3. Judicial economy dictates that this Court should remedy this void judgment claim while Owens is already before this Court on nunc pro tunc matters regarding the same cases and court. 4. The law is replete, "'adefendant is not punishable by imprisonment if he is unrepresented by counsel unless he waive counsel" and a trial court cannot conduct proceedings until he has counsel. ARGUMENT Issue 3: The trial court failed to pronounce Owens' sentence in cause number F98-01040-T in his presence as required by article 42.03, § l(a) of the Code of Criminal Procedure. ARGUMENT & AUTHORITIES A writ of mandamus is appropriate to compel a ministerial act in criminal matters, but the relator must show that he has no adequate remedy at' law. See Lanford v. Fourteenth Court of Appeals847 S.W.2d 581,586 and n. 5 (Tex. Crim.App. 1993). Because a trial court must pronounce a felony defendant's sentence in his presence, mandamus will lie to compel the trial court to impose asentence in the presence of a relator, his attorney and the district attorney. See In re Risley, 190 S.W.3d 853, 854,n.2 and 856 (Tex.App-Fort Worth 2006); State v. Aguilera, 165 S.W.3d 695, 697-698(Tex.crim.App. 2008) and Article 42.03 §l(a), Code of Criminal Procedure. Also, a writ of procedendo may be issued, to instru~ct or order a trial court to proceed to judgment - wiithout dictating the judgment to be entered. Additionally, a writ ofcertiorari is another available avenue for relief. When there is no right to appeal, this Court of Criminal Appeals may issue this writ in order to iR tAe proceedings of the trial court aRo eo determine whether any irregularities occurred during the proceedings. See Ex parte Brand, 822 S.W.2d 636(Tex.Crim.App. 1992). In this case, prison records show that Owens has been incarderated in the Texas Department of Criminal Justice (TDCJ) for over 16 years in cause number F98-01040-T (appendix ll(a-b)), yet the trial judge never orally pronounced his sentence in this cause number in Owens' presence. The court reporter's record verifies this fact by showing that the trial court specifically called ·" [c]ause [n]umbers F97-75579 and F98-67384" (appendix 4(b), line 8), set Owens' punishment "in each case •.• at 20 years confinement in the state penitentiary" (appendix 4(d), lines 15-16) and "confined [him] in the above nHmbered cases for 20 years" (appendix 4(d), lines 24-25)(emphasis mine). In the case of Billy Ray Risley, the trial court sentenced him to prison "in abstentia" in June 1990. But 16 years later, Risley "filed a petition for writ of mandamus asking th[e appellate] court to order the trial court to pronounce sentence ••• in [his] presence" according to article 42.03, section l(a) of the Code of Criminal Procedure.· In re Risley, 190 S.W.3d at 854. The court of appeals held that "mandamus would lie to compel [the] trial court to impose sentence in presence of defendant"· (In re Risley, 190 S.W.3d at 853) and that the "trial court abused its discretion by refusing to sentence [Risley] in accordance with the mandates of article 42.03, section l(a)" (In re Risley, 190 S.W.3d at 856). The court of appeals even noted that "an improperly pronounced sentence is akin to no pronouncement of sentence at all" and conditionally granted Risley's writ of mandamus. See In re Risley 190 S.W.3d at 855-56, and n.7. Just like Risley's trial court failed to pronounce his sentence in his presence, Owens' trial judge also failed to pronou,nce his sentence in cause number F98-01040 in his presence, that of his attorney (Catherine Shelton) and the district attorney according to the Tex.Code Crim. Proc. art. 42.03,§1 (a) and State v. Aguilera, 165 S.W.3d at 697 & 698. Moreover, Owens' trial court totally failed to pronounce any sentence in casse number F98-01040 which means that Owens is currently serving a 20-year sentence ~n TDCJ 'for a case in which·"no pronouncement of sentence [has been rendered at all" (see In re Risley, 190 S.W.3d at 855:....56, n.7). Hence, the sentence in this case has not evn begun to run since there has been no oral pronouncement. See Tex. Code Crim. Proc. art. 42.09, §1. Under these circumstances, OWens is entitled to mandamus relief to compel the trial court to pronounce sentence in his presence in F98-01040. Owens can satisfy the requirements for mandamus relief 1. The reporter's record reflects. that the trial court never pro- nounced OWens' sentence in cause number F98-01040 in· his presence on December 2, 1998. Therefore, .the. trial court has a ministerial duty to pronounce the sentence in OWens' presence according to V.A.c.c.P. art.42.03,§l(a) - if the sentence is to be valid. 2. Mandamus is appropriate to compel the trial court to impose the sentence in this case. 3. Without ·the trial court's pronouncement of sentence in this case, OWens has no adequate remedy at law by which to appeal because ~n appeal can only be taken after a defendant has been sentenced . and a writ of habeas corpus is for a final felony conviction - which has yet to happen. ARGUMENT Issue 4: The trial court's original judgment sheet, corrected judg- ment sheet, August 31, 2009 judgment and sentence nunc pro tunc and October 31, 2011 subsequent judgment and sentence nunc pro tunc are void in cause number F98-01040-T. A writ of mandamus is an exraordinary writ that should be issued only when the trial court has clearly abused its discretion and no adequate remedy by appeal exists. Walker v. Packer, 827 S.W.2d 833,839-40(Tex. 1992). Ordinarily, a relator must show that he has no adequate remedy at law before mandamus will issue, but a void judgment claim is an exception to this rule. See In re Gooch, 153 S.W.3d 690, 693(Tex.App.-Tyler 2005). Mandamus is appropriate to ·set aside or correct a· trial court's ··void order. In re Dickason, 987 S.W.2d 570, 571(Tex.1998)(0rig. Proceeding); Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex. 1986) and Eidson v. Edwards, 793 S.W.2d 1,5(Tex.Crim.App. 1990). An order or judgment is void when a trial court has no power nor jurisdictionto rende:-its ruling in the matter. Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429,431 (Tex.x 1986). A trial court renders a judgment when it pronounces, states, declares or announces the jmdgment of the court. By rendering a judgment, the trial court "'settles and declares the decision of the law upon the :·:,matter at issue.'" See Jones v. State, 797 S.W.2d 33,35,n.3 (Tex.Crim.App.l990). The rendition of a judgment marks a trial judge's official decision in a case and is orally announced in, open court. In re Fuselier,56 S.W.3d 265,268 (Tex.App.-Houston[lst Dist.]2001). Statelaw requires "the judgment rendered by the-trial court to be entered of record[,] •••• '[e]ntered of record' means the judgment actually rendered is 'entered in the minutes of the court.'" See Jones v. State, 797 s.w.3d33, 35(Tex.crim.App. 1990). But before a written judgment reflecting a conviction may be entered in the court's records, there must be "proof show[ing] that a conviction has occurred in fact." See Jones v. State, 795 s.w. 199,202 (Tex.crim.App. 1990). Otherwise a trial court lacks.: the authority and discretion "to orally pronounce one sentence in from of thedefendant, but enter a different sentence in the written judgment outside the defendant's presence". Ex parte Madding, 70 S.W.3d 131,136 (Tex.Crim.App.2002). When, however, a written judgment is defective, it "may be corrected [by] nunc pro tunc '[i]f a correct judgment was in fact rendered ••• '" or if "the events [i]n question actually occurred." In other words, "a judgment may be 'entered' nunc pro tunc if it was in fact 'rendered,' but not recorded, atan earlier time." See Jones v. State, 795 S.W.2d 199,201-201 & n.7(Tex. Crim.App. 1990). A trial court is never authorized to enter a judgment nunc pro tunc to correct judicial omissions and errors nor to "change a court's records to reflect what it believed should have been done." see In re Fuselier, 56 S.W.3d 265,268 (Tex.App.-Houston [1st Dist.] 2001, no pet.); Fanniel v. State, 73 s.w. 3d 557, 560(Tex.App.-Houston[lst Dist] 2002); Ex parte Dickerson, 702 S.W.2d 657,658 (Tex.Crim.App.l986); and Collins v. State, 240 S.W.3d 925,928 (Tex Crim. App 2007}. It's "correction can be only as to what was done" or else the judgment· nunc pro tunc is ·void. See Smith v. State, 15S.W.3d 294, 298 (Tex.App.-Dallas 2000, no pet.) and Fanniel v. State, 73 s.w.3d at 560. Should a conflict exist "between the oral pronouncement of sentence in open court and the sentence set out in the written judgment, the oral pronouncement controls and the written judgment is to ••. conform" to the 25 of 32 oral pronouncement. See Thompson v. State, 108 S.W.3d 287, 290 (Tex.Crim.App. 2003). But if the trial court never rendered a judgment nor sentence in a case, yet it mistakenly enters a judgment and sentence in the written judment then "there is no valid judgment" because the conviction was never rendered. Thompson v. State, 108 S.W.3d at 290. A void judgment ia "a nullity from the beginning" and any subsequent judgments issuing or based on the original void judgment are also void ah "entitled to no respect whatsoever." See Ex parte Seidel s.W.3d 221, 225 (Tex.Crim.App.2001) and Nixv. State, 65S S.W.3d 664, 668 (Tex.Crim.App.- 2001). Ultimately, when a trial court enters an invalid judgment sheet or a void judment nunc pro tunc, it has a ministerial duty to vacate its order because "it exceed[ed] the court's jurisdiction." See In re Rubio, 55 S.W.3d 238.241 (Tex.App.-Corpus Christi 2001) and Stearnes v. Clinton, 780 S.W.2d 216, 220 (TexCrimApp. 1989). Additionally, this Court of Criminal Appeals may issue a writ of certiorari to inspect the proceedings of. the trial court to determine whether any irregularities occurred during the proceedings. Ex parte Brand, 822 S.W.2d 636 (Tex.Crim.App. 1992). In this case, both Judge Molly Francis (the original presiding judge who heard this case) and Judge Rick Magnis (the curren presiding judge) lacked any jurisdiction to enter judgmentsheets, corrected judment sheets, a judgment and sentence nunc pro tunc and a subsequent judgment and sentence nunc pro tunc reflecting owens' conviction and 20 year sentence in this cause number because the original judge (J. Francis) never rendered a judgment of conviction nor sentence in this case. In this circumstance, this Court has held that there must be "proof show[ing] that a conviction has occurred in fact" before a written judgment 26 of 32 reflecting a conviction may be entered in the court's records. See Jones v. state, 795 s.w.2d at 202. JUDGE MOLLY FRANCIS' WRITTEN JUDGMENTS ARE VOID Here, Judge Francis mistakenly entered judgment sheets in cause number "F-9801040-T" reflecting the "DATE OF JUDGMENT: 11/13/98;" the "DATE SENTENCE IMPOSED: 11/13/98;" the "PUNISHMENT AND PLACE OF CONFINEMENT: 20 YEARS ••. [TDC];" and the "DATE TO COMMENCE: 11/13/98" (appendixes 9(a) & lO(a)). But the court· reporter's record shows that on "December .2, 1998," Judge Molly Francis . held trial "proceedings" for "[c]ause [n]umbers F97-75579 and F98-67384" (appendixes 4(b), lines 1 & 8)"and informed OWens: "when I was driving home on·November 13th after we left· court I realized that I had neglected to actually find you guilty at the time we did this. The magistrate never did this." Appendix 4(c), lines 3-5. Then Judge Francis found OWens guilty "in each of the above numbered cases · for 20 years. Sentence to begin today~ Appendix 4(d), lines 24-25. Accordingly, i t was on December 2, 1998, that Judge Francis rendered a judgment of conviction and sentenced OWens - in open court - to prison in cause numbers . F97-75579 and F98-67384. But there is no "proof show[ing] that a conviction occurred in facet" in cause number F98-01040-T on neither November 13th nor December 2nd, 1998. These facts resemble those presented in Thompson v. State, 108 S.W.3d at 287. There, Alvin Thompson was convicted of one count of sexual assault of a child and one count of indecency with a child. The "trial court assessed punishment for only one of the two offenses, but hte judgment incorrectly reflect[ed] the same punishment for both counts." 108 S.W.3d at 289. When this Court reviewed the facts an its law, it clarified: "When there is a conflict between the oral pronouncement of sentence in open court and the sentence set out in the written judgment, the oral pronouncement controls •••• [and t]he solution ••• is to reform the written judgment to conform to the sentence that was orally pronounced." Thompson v. State, 108 S.W.3d at 290. Because OWens' situation is like Thompson's in that a clear conflict· exists between Judge Franis' oral pronouncement of his guilt a~sentence JUDGE RICK MAGNIS" WRITTEN JUDMENTS ARE ALSO VOID Moreover, Judge Rick Magnis' August 31, 2009 JUDGMENT AND SENTENCE NUNC PRO TUNC and October 31, 2011 SUBSEQUENT JUDGMENT AND SENTENCE NUNC PRO TUNC in cause number F98-01040-T are also void for the following three reasons. First, the December 2, 1998, court reporter's record indisputable demonstrates that Judge Molly Francis never rendered a judgment and sentence in cause number F98-01040-T, therefore the trial court's original written judgment in this cause number is void. Since the original written judgment i n F98-01040-T is void and "a m1llity from the beginning" (ex parte Seidel, 39 s.w.3d at 225), ·this means that Judge· Rick Magnis had no authority to enter any judgments nunc pro tunc .in F98-01040, since, with no original writj:en judgment (because its a nullity), there is nothing to correct. In Nix v. State, 65 S.W.3d at 668, th:i,s court expalined that i f the original judgment imposing probation was void, then. the trial court's later revocation ordr is also void because there was nothing to revoke. This same reasoning applies in this case: if the original judgment is void, then all subsequent judgments based on the original are equally void and are to be given no respec:twhatsoever. Second, Judge Magnis' judgments nunc pro tunc are void because they correct a ~gudicial error rather that a clerical error. On August 31, 2009 and October 31, 20ll,·Judge Magnis mistakenly entered· judgments and sentences nunc pro tunc in cause number F98-01040-T each refleeting: . "Ronroyal OWens was convicted on the rrec:ord in open cou:ct by the trial court on the date of Devember 2,1998. The sentence of incar- ceration for 20 years was orally pronounced and imposed on the dateof December 2,1998." Appendix 13(a) & 18(b). Judge Magnis' entr~es actually correct Judge Molly Francis' failure 29 of 32 to render a conviction and sentence in cause number F98-01040. Here, the reporter's record of the December 2, 1998, proceedings reflect that Judge Francis only called, convicted and sentenced OWens in cause numbers F97-75579 & F98-67384. But · Judge Magnis entered the abovementioned judgments nunc pro tunc showing that the trial court convicted and sentence Owens in F98- 01040-T 11 and 13 years later. By doing this, his judgments nunc pro tunc t~,),·~ amounted to a correction of Judge Fancis' ·omission and error in ·aQJ.aas to convict and sentence OWens. According to State law, Judge Magnis was unequivocally prohibited from using a judgment nunc pro tunc to correct Judge Francis' judicial errors and/or omissions and from changing the records to "reflect what [he]· beieves should have been"in·cause number F98-0l040. As a result, the2trial court's judgments nunc pro tunc are void in F98~01040. See Fanniel v. State, 73 S.W.3d at 560; In re Fuselier, 56 S.W.3d at 265 and Collins v. State, 240 s.W.3d at 928. Judge Magnis' judgments and,sentences nunc pro·tunc do not reflect what actually happened at trial on December 2, 1998, (see Smith v. State, 15 s.w.3d at 298-99), but instead they correct Judge· Molly Francis' judicial errors and omissions of not convicting and sentencing.OWens. Their entry therefore violates the law governing jugments nunc pro tunc and is void. Consequently, Judge Magnis has a ministerial guty to withdraw and vacate his August 31, ·2009 judgment and sentence nunc pro tunc and his October 31, 2011, subsequent judgment and sentence nunc pro tunc. Stearnes v. Clinton, 780 S.W.2d at 220~ Third, the law is well-settled that Judge Magnis could not enter a judgment nunc pro tunc in F98-01040-T unless proof· exists that the original trial judge (J. Molly Francis) had actually rendered and pronounced OWens guilty 30 of 32 and sentenced him to prison in that cause in open court. Collins v. State, 240 S.W.3d at 928. Here, no proof exists showing Judge francis conv;,icted and sentenced OWens in F98-01040-T. Thus, the trial court was without authority to enter the August 31, 2009 and October 31, 2011 judgments nunc pro tunc. Absent_ the authority to enter thejudgments nunc pro tunc, the trial court's entries are void. As stated previqusly, the trial court is obligated to withdraw and vaccate its void judgments in this cause. OWens is entitled to the relief sought for the following reasons: 1. In August 2009 and October 2011, the trial court entered judgm- ents nunc pro tun~ in cause number F98-0l040-T when this cause number was never called nor adjudicated by the court in 1998. , Thus, the judgments nunc pro tunc corrected a judicial error and/or omission thereby·rndering the judgments nunc pro tunc void. 2. The trial court now has a ministerial duty to vacate, withdraw and/or recind its judgments nunc pro tunc in this cause. PRAYER For these reasons, relator· asks that this Court of Criminal Appea.ls would grant this writ of mandamus, writ of cetiorari and writ of procedendo directing Judge Magnis to vacate his August 31, 2009, and October 31, -2011 judgments nunc pro tunc reflecting OWens was represented by Michelle Moore and would also withdraw the court's December 2, 1998 , judgment and sentence and remand OWens to the trial courtto answer the indictment in cause numbers F98-01040-T and F98-67384MT. Spur Amarillo, Tx. 79107 Relator Pro Se CERTIFICATION I certify that I have reviewed the petitions and have concluded that every factual statement made in the petitions are supported by competent evidence included in the appendix or the record. No ------------------------- IN RE RONROYAL J. OWENS, Relator 10: Judge Francis' Corrected Judgement Sheets (2pp.) (a) cause No. F98-01040 (b) cause No. F98-67384 11: Proof of incarceration (3pp.) (PBCJ iRtCrRet priRtout (2pp.~ (a-) ·TDCJ internet printout (2pp.) (b) TDCJ Record's office printout 12:Motion to Correct Judgment Nunc Pro Tunc (Spp.) (a) coverletter (b) pg.l (c) pg.2 (d) pg.3 (e) proposed order 13: Judgment and Sentence Nunc Pro Tunc (2pp.) (a) cause No. F98-01040 (b) cause No. F98-67384 '·A4: May 15. 2008, Letter from Michelle Moore 15: October 16, 2008 Letter from Michelle Moore 16: March 29, 2011. :etter from Michelle Moore to Judge Magnis 17: Motion to Correct "Judgment and Sentence" by Nunc Pro Tunc (-20ll(6pp.) (2t) Coverletter . (b) pg. 1 .:· (c) pg. 2 •· (d) pg. '3 (e) pg. 4 (f) proposed order 18: Ruling on Motion for complete Copy of Public Defender's (and De- fendant's) Case File and Subsequent Judgment and Sentence Nunc Pro Tunc (a) pg. 1 (b) pg.2 (c) pg.3 19: Fifth Court of Appeals' Opinion 20: Fifth Court of Appeals Order of rehearing 21: December 20, 2012 Letter to Dallas County District Clerk 22: Letter from Dallas County District Clerk UNSWORN DECLARATION I declare under the penalty of perjury that all the .documentws included with these petitions for writ of mandamus, writ of writ of procedendo are true copies. 2 of 2 / APPENDIX 1: Attorney Shelton's Contract of Employment -c;.< ·""": t' G· • .~·. CONTRACT OF EMPLOYMENT. Re: State v. Ron Royal J. W. Owens '\!. This agreement is between RonRoy:il J.W. Owens, hereinafter "Client" and Shelton-Thomas, P.C., hereinafter "Attorney". It is entered into by the parties in Dallas, Texas on June 15, 1998. Attorney hereby agrees to represent Client in the above matter in consideration of a non-refundable retainer fee of twenty-thousand dollars "- ($20~000.00). This ret;tiner fee is for services rendered (up to the return of an indictment) or (if the matter can be completed withoat a trial on a disputed issue). If the case is settled at any time after the trial fee has been paid, no part oi rhe trial iee will be refunde~. This fee should be paid 10 days prior to the final/zearing. It is further understood that the above fee does not include any expe"':Se for in~esiigation, photographs or any other expense necessary in the representatiori, inclu~ing association of other counsel, which will be paid by Client. Attorney agrees to keep Client notified of expenses incurred and t~ seek prior approval of expense in . excess of Five-Hundred Dollars ($500.00). The ahove fees do not include legal fees for the appeal of any issue, nor does it include representation on matters of pardon and -parole or habeas corpus. It is further understood and agreed that should the case have to be retried for any reason after it has once been tried, th:it a reasonable charge will be agreed upon the parties. It is expressly agreed nnd understood by the parties that no promises or guarantees as to the outcome of the matter have been made. Attorney agrees to exert his best efforts at aU times in representing the client in this case. ,-----....,_ . Agreed, understood and accepted on thiS"(5day of \\1L"'~- ,1998. r. _ ( \ :, - r .· . - · ·~ -- \ - "'- ~-!]£,'' \, I "'\ -:--:f- I, \ '\ \' ; '-J 1 ) ·~ '" - ( "' - /- . ., • ( -- , - \ -. <~ .\ _, ), ) ·LL..-\ \-{_.--- Ro110)1aiJ.W. Owens -- SHELTON-THO~S, P.C. NOTICE TO CLIENTS The St:~te Bar ofTex:JS investl::zt~ ond prosecutes professional miseonduct committed by Tcx:JS :~ttorncys. Although not every compbint 11gainst or dispute with :i l:awyer involves profession:al misconduct, the St:~tes n:ar's Omce ofGener:ill Counsel will provide you with informa,tion :about how to fUe :1 compl:aint. Ple:JSe c:aU 1-800-932-l 900 toU-fl"t"c for more information. · · · · t>e. '.~rCU..·.... ~ -z..c;, l!'c;,r_--., i...!<_.: -l' l \'c...c.:_ , .1! c..,.\ i ·~= 1\ /<k'( e·< 'f-l.~._ Cf!_'{_ '. \a) t":Jc•.:..l - -z.s:c·-o TA)\r< '".,..\·\<;t·i1CrttlS.) 1 )f. -z..'t'X-~c:..·c~·- &..c.:; o ·~~ s.-, '\~'>?:. 1 ~- 'P-s<-:~ct;" clcc.,i '--~ 1 a t"k.V1f ...._____ \ <"._, _ •,#.) "(- ..........,.._ . t .--._ 'k I - ~ ~"""-C'L.1 ~ __ /'\ "'<.. +-... . . C.L:.u ~ \ '1:--e~\ "'1"\A..>:el'''-'-- ~-, .., _.,""\ · APPENDIX 2: ORDER SUBSTITUTING COUNSEL ! ORDER SUBSTITUTING COUNSEL On this date, came on for hearing the Agreed Motion ,,for Subs~itution of Counsel for Defendant, Ronroyal J. Owens and this Court finding the same is timely made and in good order and is without opposition, the same is hereby GRANTED. IT IS THEREFORE ORDERED that Royce West is withdrawn as attorney of r:~:;-C:J:Gj . recor'l:~·tt'i~'.Defendant, Ronroyal J. Owens and that Catherine Shelton is substituted .:. .. t'~;;.~ ~ ::..~·: :···:~· ~:; . ~~ - .......... ·.,·)!'"". . as cotllj$eJ:JorJ)efendant, >:· ... ··- ' 1""' • ...,:. Ronroyal . J. ~ 0 SIGNED::this £ d a y of , 1998 . .~~"S,;~_~: -~: :':· ::;;~ ~-j :-::;:~:1:.:. ··~· ·:1, ·.··... :"'i~· ,.,- - • .. S•' \ .. ·; \ . . - .j AGREED ORDER FOR SUBSTITUTION OF COUNSEL- PAGE 1 APPENDIX 3: MOTION FOR NEW TRIAL Filed by Shelton on December 11, 1998 (2pp.) (a) F98-01040-T (b) F98-67384-MT t No. THE STATE OF TEXAS IN THE 283RD JUDICIAL vs. DISTRICT COURT OF \2.c"N12-oy&\ OwRNS DALLAS COUNTY, TEXAS DEFENDANT' S MO' TO THE HONORABLE JUDGE OF SA: Now·comes the Defendant .1d by his Attorney and moves the Court to gra:. ere in for the good and sufficient reason that the verdict. - rary to the law and the evidence. WHEREFORE, Defendant prays the Court herein. ...,.--=====rr, ="''Xl'iWTWlfliiiJJ11l'USIU 5W1I '11"'11Sl ., ~.Hil l [ -l)3(l Attorney for Defendant C i\9'1-ltlLi IJ e s 11·e:. '-'-o 'V n.o \ V\.1 ~J~rnv. r:,y~ 'l>"1. o ORDER Dl.\tl lA ">, l )( . , '5' '-u'- The above Motion is hereby· c 9 zaatedleerr~ <,~~~& Judge~~ '\... "'·,_ ( i <,_. I im: 11 1998 t THE STATE OF TEXAS IN THE 283RD JUDICIAL . vs. DISTRICT COURT OF ~o N~oy&\ Otue /\\ > DALLAS COUNTY, TEXAS DEFENDANT'S MOTION FOR NEW TRIAL TO THE HONORABLE JUDGE OF SAID COURT: ~OW •COmes the Defendant in the above cause and by his Attorney and moves the Court to grant him a New Trial herein for the good and sufficient reason that the verdict is contrary to the law and the evidence. WH fendant prays the Court gr a new trial herein. E IL ED A orney for Defendant CA,~t;np.J~;: ~t-\e.L-\"01'0 \w \ W\.1'1. \)\J e-z. D , ""' t. ORDER \:>Allv\">, TE:."'·"'-_, .\ '5-;z.o-z..- E?~, .-,· The above~:~t-~."n ishereby~~ -- -··· ... tl1AnOO~~ ·\....:~ ... ~ t-~- . :JJ APPENDIX 4: COURT REPORTER'S RECORD OF DECEMBER 2, 1998 PROCEEDINGS (9pp.) (a) pg .1 (b) pg. 5 (c) pg. 6 (d) pg. 7 (e) pg. 8 (f) pg. 9 (g) pg .10 (h) pg.11 (i) pg.13-Reporter's Certification -.~-'----. ---·' --·· -- .. ·--........., — 1 — 1 REPORTER'S RECORD 2 VOLUME OF 3 December 2, 1998 FC?~ -tJ;tJI./t1 4 Trial Court Cause No. "'P9-=t 75579--'T, F98-67384-T — 5 — 6 THE STATE OF TEXAS IN THE 283RD JUDICIAL 7 vs. DISTRICT COURT OF 8 RONROYAL OWENS DALLAS COUNTY I TEXAS — 9 — 10' --------·------------------------------------------ 11. FILED 12 13 APPEARANCES: 14 15 MS. SUSAN MCWITHEY MS. MICHELLE MOORE Assistant District Attorney Officer of the Public DefendeJ 16 133 N. Industrial Blvd. 133 N. Industrial Blvd. Dallas, Texas 75207 Dallas, Texas 75207 17 214-653-3700 SBOT No. 214- SBOT No. . . 18 Attorneys for State of Texas Attorney for Defendant -------------------------------------------------- 19 — 20 — — 21 — 22 vn the 2nd day of December, 1998, the above entitled 23 and numbered cause came on to be heard in the said Court, 24 Honorable Molly Francis, Judge Presiding, and the following 2~ proceedings were· held, to-wit: 5 1 P R 0 C E E D I N G S 2 December 2, .1998 3 THE COURT: I got a couple of housekeeping 4 things I need to do that I have been trying to do since the day 5 after when I told you I have been unable to get Ms. Shelton to 6 come in here. So let's start here and let's put this on and I 7 will talk to you about your appellate lawyer. 8 These are Cause Numbers F97-75579 and F98-67384, the 9 State of Texas versus Ronroyal Owens. Ms. Owens is present 10 with Ms. Michelle Moore, the public defender out of this court. 11 12 Mr. owens, you were in front of me November 12th and 13 13th with your attorney, Catherine Shelton. You had previously 14 e~tered a plea of guilty in the magistrate's court. You 15 remember doing that before the magistrate? 16 THE DEFENDANT: Yes. 17 THE COURT: The magistrate accepted your plea, 18 the magistrate finds your case substantiates a finding of 19 guilty and it was reset for November 12 and it was conducted 20 ultimately. I ended up giving you 20 years in the penitentiary 21 in 22 THE DEFENDANT: Both. 23 THE COURT: both of these cases, correct. 24 THE DEFENDANT: That is correct, Judge. 25 THE COURT: You recall -- or I know you -- as — 6 — 1 you and I talked yesterday, I have tried repeatedly to get 2 ahold of Ms. Shelton to ask her to come back down here because 3 when I was driving home on November 13th after we left court I 4 realized that I had neglected to actually find you guilty at 5 the time we did this. The magistrate never did this. This 6 procedural -- this is, I think, something that probably may or 7 may not be necessary, I don't know, but I am a person who 8 worries about things, and so I am going back and am going to 9 backtrack and I brought you down. I tried to get Ms. Shelton 10 to come. She has refused to respond to phone calls, has 11 refused to come down, has refused to send anybody down to ., 12 represent her office. And I talked to you yesterday about your 13 ability to talk to Ms. Shelton, and you told me you had been 14 unable to get in touch with her. 15 THE DEFENDANT: Same problem. 16 THE COURT: You were having the same problem. 17 And I told you that I needed to do this and have been trying to 18 do this every single.working day since November 13 but have 19 been unsuccessful. And what were we going to do about not 20 getting her down here and you told me yesterday and I am going 21 to ask you today if tha,t is, in fact, correct that in your 22 opinion Ms. Shelton no longer represents you; is that correct? 23 THE DEFENDANT: That is correct. 24 THE COURT: And I told you that I was-going to ,... 25 need to bring you down today and was going to appoint you, . — 7 — 1 number one, a lawyer to sit in with you today and to talk to 2 you about this and then, number two, to appoint you a lawyer to 3 handle your appeal. And you told me yesterday that your appeal 4 is going to include an ineffective assistance ground on Ms. 5 Shelton; is that correct? 6 THE DEFENDANT: That is correct. 7 THE COuRT: And I am I am also going to 8 appoint you a lawyer on appeal in that regard. So going back 1 9 and kind of cleaning up a procedural mistake that may or may 10 not need to be done, but I need to do it so I can quit thinking 11 about this every single day. 12 I do in each of the above numbered causes do find you 13 guilty, the magistrate previously found the evidence 14 substantiated a finding of guilty. I do find you guilty and 15 set ·your punishment in each case as previously stated at 20 16 years confinement in the state penitentiary. 17 Is there any legal reason under law why you should 18 not be sentenced at this time? 19 MS. MOORE: No, Your Honor. 20 THE COURT: Hearing no reason, it is therefore 21 the order, judgment and decree of the Court that you be taken 22 by the sheriff of Dallas County, by him safely held until 23 you're received by an authorized receiving agent for the state 24 penitentiary, where you shall be confined in the above numbered 25 cases for 20 years. Sentence to begin today. I will give you 8 1 credit for all your back time, of course. 2 Essentially, nothing has changed except for me saying 3 four different words. 4 Now, Ms. Moore can talk to you about anything you 5 want to talk to her about and I will make her available to you 6 before you're sent up in case you want her to do anything o~ 7 call anybody for you. I ·have· talked to m'y coordinator and 8 asked her to contact an att:orney .by :t'he name .of Geerge Conkey, 9 who does appellate work and has asked that -- has·demonstrated 10 a willingness to represent indigents occasionally on appeal. 11 And so I am going to have him -- I am going to have -- I think 12 she may have already called him and he may come see you in tRe 13 jail or he may ask that you be brought down here to talk to you 14 over here. And maybe it is a little better environment for you 15 to talk over there. But he will be in touch with you before 16 the end of the week, so hopefully that will do that. And then 17 "/Ms. Moore is going to check those files and be sure that there 18 is a notice of appeal, an appropriate notice of appeal. ~et's 19 do the pauper one so we can put Mr .. Conkey on the bottom while 20 Mr .. Owens is here. There may be something already in the file. 21 That's fine. You're well within your time anyway, so there is 22 no problem there, but we do the formal notice of appeal where 23. an attorney is appointed and that clicks in other things that .24 starts the bal~ rolling faster. 25 THE DEFENDANT: Great. — 9 — 1 THE COURT: So we will do that. And Ms. flloore 2 will get those files. I had to order them up from Records,·and 3 she will get that and look through that and make sure 4 everything that needs to be signed gets signed, gets you to 5 sign one of the pauper oaths and she can write down the name 6 for you of the attorney who is going to be getting in touch I 7 with you. 0 THE DEFENDANT: Thank you very much. ) 9 .THE COURT: . -'": . That will also start the court 10 reporter, Mrs. Hazlew.ood, . writing down, getting your tran.script 11. ready. Didn'' t somebody cont..act her.? .. 12 THE DEFENDMIT: Yes. I think som~H)b(iy contacted· ..\ ~ 13 her about getting the record. Gloria -- 14 THE COURT R~PORTER: · "Yes. 15 THE DEFEND~~T: First of all, let me say thank 16 you, Your Honor, for taking care of everything for me. 17 Secondly, I was wondering on the transcripts -- I dm ~ot really 18 sure of everything I have to do. I know Gloria has given m~ 19 information. 20 THE COURT: You don't have to do anything. If I 21 appoint you an attorney and I determine that you're indigent, 22 which I have, then you're fine. And once we sign this form 23 that states that I have found that you are indigent, then 24 pretty much the systems kicks in and it takes care of itself. 25 Hrs; Hazle'lllood starts typing up the re'cord. Ms. Thcmas doesn' t j — 10 — 1 = .• have to start. -~0rryi:qg . al:)o:ut ·;that because the- county is going ·. :~ 2 to go ahead and take care of that for you because you are 3 indigent. Mr. Conkey will do what he needs to do to make sure 4 that your rights are protected in the appellate court. 5 THE DEFENDANT: I certainly appreciate you in a 6 great way. You have been a great help in all areas and I look I 7 forward to working with you. I did want to ask for clarity, 8 though. 9 THE COURT: Yes, sir. 10 THE DEFENDANT: Because I had to enter the 11 process on my own in the law library, my understanding-was that ;t"' 12 you apply for appeal and then it.-- that's to be brought to 13 your judge, your sentencing judge, which would be you. 14 THE COURT: Yes. 15 THE DEFENDANT: And 16 THE COURT: Me . 17 THE DEFENDANT: And then you either~approve or 18 disapprove. So just for clarity. 19 THE COURT: Let me tell you this, you're fine. 20 You're well within your time. Once a notice of appeal is put· 21 in the record and the law says any kind of written notice 22 including your writing a letter, Dear Judge Francis, I want to 23 have an appeal, is sufficient to start a notice of appeal. So 24 you're fine. Once the notice of appeal starts, I am really 25 it is not really my case anymore, it jumps over to the Court of — 11 — 1 Appeals, and they're the ones who begin to look at things. 2 Now, of course, it is my responsibility to get all of 3 this stuff done and the record done, and Mrs. Hazlewood will do 1 4 that and the clerks will do all the stuff tha~ is in the file, 5 will prepare everything that is in file and any evidence that 6 was admitted in our two days of trial, all of that will go 7 over. Mrs. Hazlewood is a good court reporter and gets all 8 that stuff done for you, but it is pretty much out of your 9 hands and now it is up to her and the dist"rict clerk to get all 10 the stuff done. And your lawyer pretty much just waits until 11 that is done. There is not much else he can do. 12 Now, he may want to talk to you about doing a motion ... l 13 for new trial if you want to do a hearing there. It is not 14 necessary, but if there is something else they want me to look 15 at he will talk to you about that, about there is a time limit v 16 -- we need to file a motion for new trial anyway because that 17 gives Mrs .. Hazlewood a little more time before the Court of 18 Appeals starts sending us letters about where the record is and 19 al~ of this and it gives you more time to look at issues that 20 might want to be raised .in the motion for new trial. We can y 21 file-- Ms. Moore can file~ motion for new tria:ljust to 22 ensure we have the time and then Mr. Conkey, if he wants to 23 come back and have a. hearing on something, he can file an :.:.. amended motion for new trial and raise grounds that he wants to .J 24 _,.~ 25 be addressed before the case goes up because the Court of. 13 1 STATE OF TEXAS 2 COUNTY OF DALLAS 3 I, SHARON HAZLEWOOD, official court reporter in and 4 for the 283rd Judicial District Court of Dallas County, State 5 of Texas, do hereby certify that the above and foregoing 6 contains a true and correct transcription of all portions of 7 evidence and other };'rocee.dings requested in writing by counsel 8 for the parties to be included in the reporter~s record in the 9 above styled and numbered cause, all of which occurred in open 10 court or in chambers and were reported by me. 11 I further certify that this transcription of the 12 proceedings truly and correctly reflect·s the exhibits, if an,y, 13 offered by the respective parties. 14 I further certify that Dallas County did not pay a 15 substitute court rep~rter while I prepared this transcript. 16 WITNESS my hand, the ~1 ~day n'"t:.vc~, of I 1998. 17 ~~h'"l;'lf!nHr'1Jtl 1iX\ri. . 18 ' SHARON HAZLEWOOD, C.S.R. 19 Certification Number: 628 20 Date of Expiration: 12-31-~8 21 283RD JUDICIAL DISTRICT COURT 22 Frank Crowley Courts Building 23 133 N. Industrial, LB33 24 Dallas, Texas _ 75207-4313 25 214/653-5863 APPENDIX 5: DOCKET SHEETS (2pp.) — 4 — STATE OF TEXAS vs. N o . - - - - - - - - - - - DATE OF ORDER ORDERS OF COURT • ') •, (/) 0 :> -l -l :> I'T1 -l ., 0 < I'T1 0 !" 0 ;:o 0 z 0 ., I'T1 ::0 -l I'T1 X :> (/) 0 ::0 0 I'T1 ;:o Vl 0 'T) 8c ::0 ...; APPENDIX 6: NOTICE OF APPEALS (Pro Se) (a) F98-01040-T (b) F98-67384-MT . NOTICE OF APPEAL CASE NO. F9801040T STATE OF TEXAS IN THE 283rd COURT DALLAS COUNTY, TEXAS ________ vs ruDICIAL DISTRICT RONROYAL J. OWENS ElL ED "ur so .m&. · t. 81LL LON-(j--"'~·-·,: O~t. tltll_ DA CI),.BAS ., 0~ SUBSCRIBED ~riD SWORN TO BEFORE ME on the "3b day of JV'e- "''WI bt ,- , 1:> '? Y , to certify which witness my hand and official seal. ~ c.o ~ ,.,.,, {',ro ~ /. v. ;&ft__ - (..., ..t' ('o t /r~l~ '2- Notary Public 0 I /. NOTICE OF APPEAL· CASE NO. F9867384T STATE OF TEXAS IN THE 283rd COURT DALLAS COUNTY, TEXAS vs JUDICIAL DISTRIC_T_ _ __ RONROYAL J. OWENS ---------- ----------------------------· I ---·---- -- l NOY SO !198 BILL LONG DISI'. DM!.AS CIL 1'lW IIBNIIIY SUBSCRIBED AND SWORN TO BEFORE ME on the 3o day of 19__!f_; ~o c~11ify which witness my hand and official seal. /Vt1vc,.... btf APPENDIX 7: MOTION FOR NEW TRIAL Filed by Moore (2pp.) (a) F98-01040-T (b) F98-67384 MT .e THE STATE OF TEXAS IN THE 283RD JUDICIAL vs. fJ DISTRICT COURT OF ~ttCo"'(( ( ~UJevtS .· · DALLAS COUNTY, TEXAS J DEFENDANT'S MOTION FOR NEW TRIAL TO THE HONORABLE JUDGE OF SAID COURT: Now comes the Defendant in the above cause and by his Attorney and moves the Court to grant him a New Trial herein for the good and sufficient reason that the verdict is contrary to the law and the evidence. WHEREFORE, Defendant prays the Court grant a new trial herein. Respectfully submitted, ORDER The above Motion is hereby (granted) (overruled) . Judge -----~· I I I • • THE STATE OF TEXAS IN THE 283RD JUDICIAL DISTRICT COURT OF DALLAS COUNTY I TEXAS DEFENDANT'S MOTION FOR NEW TRIAL TO THE HONORABLE JUDGE OF SAID COURT: Now comes the Defendant in the above cause and by his Attorney and moves the Court to grant him a New Trial herein for the good ' and sufficient reason that the verdict is contrary to_the law and the evidence. WHEREFORE, Defendant prays the Court grant a new trial herein. Respectfully submitted, ~fh!L~Jkm ft:ney for Detnda ORDER The above Motion is hereby (granted) (overruled) . Judge ~ I EI L E0 l t. .~~~ 2 1998 I ~NG 0~ . !;(). ii!XAS . DV.UTl APPENDIX 8: NOTICE OF APPEAL Filed by Moore (2pp.) (a) F98-01040-T (b) F98-67384-MT ____ / r ······---·--··---···---·-·--····------_;__ DATE /J · J -Cf-6 De~u~· pistrict Clerk ~ ~:: . I i ! ·:·: . ; .. : . .~, DRAWER #40 I f' . CAUSENO. __f~--t_~,_:·~{~lr~~-6~!(~--~~------- vs. _..:;::::,/~11-S:.!..."..:::3:.._____DISTRICT COURT - - - - - DALLAS COUNTY, TEXAS DEFENDANT'S NOTICE OF APPEAL AND PAUPER OATH APPOINTMENT OF ATTORNEY ON APPEAL TO THE HONORABLE JUDGE OF SAID COURT: . .=----' ---,------------~------Gemes-Aew-Gefet~dant+n-l.fle-above-eause-and-states:+am-the-defendant-in-the--above-cause;+was----- convicted in this cause and now give Notice of Appeal .to the Texas Court of Appeals for the Fifth Supreme Judicial District of Texas at Dallas, Texas, and that I am penniless, destltute and indigent per· son, too poor to employ counsel to represent me on the appeal, and too poor to pay for or give security for the Statement of Facts and a 'true copy thereof herein. WHEREFORE, I pray that the Court will appoint an attorney to represent me in this appeal and that the Court will order the Court Reporter of this Court to prepare and deliver to me or my appointed Counsel the i original and a true copy of the Statement of Facts in this case, together with all exhibits attached thereto If practical: lI ·I Ii Defendant ~- .: v ! BEFORE ME, the underslgned)uthority, personally appeared the above Defendan·t,.known to me to be the person whose signature appears above, and after beirig duly sworn on .ct~.~~~tes that he Is the defendant in the above cause, and that the matters and things set forth in t~reg(!ing llrtt true and cor- rect in all things. .::--=-· -;-::...... .-.... ~:··: ~\ _:- ~--:.··"' .... ;: :,<I~ ···.: . ~ :,':, \:;t '1 BILL LONG DISTRICT CLERK Dallas County, Texas By /Lclv]i w-tl.L~J... fg ~ Deplib"·J?istrict Cle~~ / ::>, •• •........ . ..~. · $.;~·.:.·~·~~' __ . .• '·· ORDER itisOrderedtheHonorabie - The Defendant having requested the Court to appoint Counsel, C""1eOYl§ <::: i2 · Co"'- kc...y ( d}l.} J 358· 4 U~t.:~ / \ . Address: 4:5'tCf uJ. bull-:-''f-'> L ... f~(!o.((~,.f'v 7fZL.:fi a regular licensed and practicing attorney of Texas, be, and he is hereby appointed to represent Defendant in prosecuting his appeal herein, and it is further Ordered that the Court Reporter is hereby directed to transcribe all of the notes as same may app&rtain to this cause and as taken during the trial of this cause which began on - - - - - - - - - - · 19,_ _ _ _ , and make Statement of Fac::,tt>. in duplicate and furnish same to Defendant or his appointed Counsel. · i· '· ·I I I . !!. { j ,t, i 0(;.:\J~( '/1 /"" .· _.;-....., r \ Judge .. •....__; .t. .. I - ._ DRAWER f4Q CAUSE NO. _r~.-·_:1._:~_,_::_,·/p"-'.:....7_:.::.:.....'\..:..... .. 1:._T..:...__ __ _ .'-'.)"-/. . ,.~;. . . . .:/'l: ;.L_ _ _DISTRICTCOURT - - - DALLAS COUNTY, TEXAS F. I L E~ D1 : ~~ . DEFENDANrS NOTICE OF APPEAL AND PAUPER OATH . " :~. '! ttt !· ~I DISt.:~~ tftfta. ·;•.• APPOINTMENT OF ATTORNEY ON APPEAL TO THE HONORABLE JUDGE OF SAID COURT: Comes now Defendant in the above cause and states: I am the defendant In the above caus , ·~ ...J ~ convicted In this cause and now give Notice of ,Appeal to the Texas Court of Appeals for the Fifth Supreme Judicial District of Texas at Dallas, Texas, and that I am penniless, destitute and Indigent per- son, too poor to employ counsel to represent me on the appeal, and too poor to pay for or give security for the Statement of Facts and a true copy thereof herein. WHEREFORE, I pray that the Court will appoint ah attorney to represent me m tfils. appeal ar'iofnaifff!;e;;----------------~ Court will order the Court Reporter of this Court to prepare arid deliver to me or my appolnted.Counsel the original arid a true copy of the Statement of Facts in this case, together with all exhibits attached thereto If practical. · . . ,..---~~_.-'. ~, . ~!/·~r. ; · ·, . ~~,1 • .. . .~.Defendant -~i- ./ BEFORE ME, the undersigned authority, personally appeared the above Defendant, known to me to be the person whose signature appears above, and after being duly sworn on oath states that he Is the defendant In the above cause, and that the matters and things set forth i!l.the·r~tll'goif!g are true and cor· rect In all things. . _.~·: :=: .:~·~ •.• ; :.; · .;: .·.. ·..... . .... >:. ;-.~ ·;;. .. ';tuda_( Y~-~~ BILL LONG -t#' ·• . DISTRICT CLERK ~- ,.. Dallas County, Texas By <f1tfl0 ', OeP.uty District .....·. . .......·'~ - '. <~:~\. ;~:;·~·~.~-~-.: ·, ..- ~ ·- ..... ·: .. .. ~;_ ....... ~.. . .. ORDER The Defendant having requested the Court to appoint Counsel, · G <;Y ~<j <:. . R · CO Lu.-'7 {d It./) 3 58- 41.J. Jc.J It Is Ordered the Honorable \11.. Address: 4S I 9 · W. J,...o,Mr;. h }) ~ {I ~<s 'f-¥ '? f 2c) 9 a regular licensed and practicing attorney of Texas, be, and he is hereby appointed to represent Defendant In prosecuting his appeal herein, and It Is further Ordered that the Court Reporter Is hereby directed to transcribe all of the notes as same may appertain to this cause and as taken during the trial of this cause which began on _ _ _ _ _ _ _ _ _ __, 19·----· and make St~tement of Facts In duplicate and furnish same to Defendant or his appointed Counsel. \ ~· r-\ I~ · l ( k\ .··).J\ CvY' ( /'). I • • \ •.::;; .: '; Judge '·-· '· i FORM40 APPENDIX 9: JUDGMENT SHEETS By Judge Molly Francis (2pp.) (a) F98-01040-T (b) F98-67384-MT NU~ • vs. Cl;: ~------- ·.-----,---'-:--·------·---;·---'-----~------,-------..,----- r ~~ l c~ ~:~· !'.~:::. Y (', rrur- i ,tr:: ·: FO~ SrAlE:· S MCWITHEY r-:T!i·: ltl.::r:Ti-.1~-~-Ar•l!: r:ATH!::·F:INt=' SI-IL7l. . -~~.11'J -~----· ~-----------·- --r-·-·- ------:· -------~----------------------'----~-'----.,;__-'---..,----------------...,---- F'.!. .. t:;{-~: · [;:__l.f.l .. ~~··; . ·-=---------....:...----------·-~---· TFnlvl:.:_ ; D;:.· 1~·1 };-,c, 1~::nS'CiP..[N {[f\1 [i(_:lAIL): 20 ·yi~f3. F·:::NITt:f,JTJ,~RY ·,-------·-·-·-:--•••r·----·-·--~-----'------------'------'--------'-- F'lf::{-) TL'I r.::NI--112\i'.!r:E.I'H.=NT. r= l )\l.[IJ I., I[; G Cll,; F·'r~F~·p!~~:~~;:.~Ft·: ( :ll : f\1/A·. F: Nt :(\ I'H~Ti•lf:::i\1 T : ~,: / p, · 1'10 P·If'IDJNC ·-·'--.--'- - - - - _________ _!, _ _ _ _ _ _ __ ~;r.• ·:·I:_ q:'I-.IIT: ~iT. 1 r-1:· L.:::'Tl.- ~- :~~(~ ~- t:.P:I=::~~; C[ii'!::: I;'!f..':l'iENT ·. IN THF INSTniJTIONt-~1~. D!•/IS!Cd'J r.w. ·: :-:: TD OF THt=: :T :~,:4~:; Uf. 'J.:.·Ai~Ti·it::I'H c;::· CR l i'11 ;--_;,::,L ·JUST TCE:: C:JM!"li:::i'HX:: Pll'lD ~'~ · ,~ .1. tl.!r=. o~=· (_) APPENDIX 10: "CORRECTED" JUDGMENT SHEETS By Judge Molly Francis (2pp.) (a) F98-01040-T (b) F98-67384-MT --~- ---:-~- . , . .i.~- . -·~-~~--.·-:-t-i! .sa ~-..,.-,~-· ! 1.'\ ...· . I ••-:·· ·-.:.- . . ' . ,.JI..ir:C.~i ::-·:\:·:· C.il\! F'l.[J: CJF UL:I!... TY m~ ~.ICJLD C.T~I,!T~:l\IDFT:E DE:F<Jf:.:F' CDUF:T ;;.~,-::, l \'.!:Y{ C.lF' ;JUH Y · fl-U f::lL . . t,T fCJHi'-iC Y r-- :J : :;_, :-~·:: r(·, ·1· t: : ~~:: :'"'11:::~ ~_._; I ..;· :M·l F~ '( · ~"_:_ _________________ :•··-·-·-----------·----·.:..··-·-··-------·--··-----·-·-·-------------·-.---------------·----------------.·-------··-··-··-------- ----------·-----·--·-·----------------'----------'--' __________ _____ _____________ __;_ .. __:_, ____ F'L.FP1! CiU .1. L..T 'i' -·--·--·---·----------- .... ------·-·-·-·.. --··--------------···----·--··---· .. ------- .. ·---·--:·-·---·---·-··----·---- .. ------··--------··--·.:..·---·-·--·.;...____________________ , ____________________ ,_ ______________________________ ~------·-· .F. :... I·.~~t:~ ·r:J c·r·-.tr--!~··\!\lC~r 1·.-1r~t)·r F JI\ID I M::IS m-:! F' (:i r:: r'.:..; [i! :; __. .-·~1 F' 1--·J < E~ · _: : r-.1 >,... ;.::) FNl!P:i\JCf:J·H:::Nr ~ N/Pl ----·-·---------· --·-·------------·--- !-=· t ~. r.J r ~?.:: :---; >·1 ~::~·~\~ ··~ · ----r~,l· . !~J PI.ACE ~F 20 YEARS L"::::.:· :;·J:;~t·lll\IT: C.TJi ..WJNEi'il::i',iTJl'.j TH':: JI'ETTTUTJIJ;\fPL LJVJSHlN D:.Y\F lTJ i.:JF T:-JE. TEXt~·;~; DE.F'(.;;~:Tr·!E:N-r or: c:::;: J. !1 l NAL ._JUST I CF:: ClJi·U•IE!'~l;E: AN~ A FINE D~ - 0 - ·---.-----------------------·----.---· ND -----·--·---·-·-:::---;:--:.-·-·--······--·-·-----:··-:;---·~~-----=-----------·--·-----·-·----·--------~·--------·--·-------------------------·-·-----· :··H.. -: >-· ~ VDL •. ::::: .'\ C .. . ·, ·: i . .1 I F- o:>:::;:(:.]:;::::::4- MT VS.. COURT DACLAS: . 'i ,. ,::, r:rc;i~::NF: Y PtTTOnNE:Y FOR STATE: ~ MCWJ~HEY , por.:. DEFENDANT : ~:r~t;,_· ·.<·· 4{; :-<:- ·-;,~L~h::;~m~S',,;;t6~~fr~"'!?:~~~/;~ i: . · :, ATTEMPTED''· AGGFI'AVAfl!ER) s:;;:XUAL;' • ' ~ . i • j • ; •. - .. ·.i ' :. j·· ,·! -~ . .. ..'. bE.C!JND • ' . ·; ·.1 • : : • "~ • •• . ·; :. F\ l.. t~--~~-· ~ . ... . . . . .. --:·~:::r::!'!~:; CiF F'l.E {r --~ ' -~ 8ARGAlN ClN DETAIL>: ·. -:. ·' PLEA TO ENHANCEMENT :::.;::;i:;(:lCJF::'-'lF'i--·1 i :;; ) :. l'.l/iY . ·' NO FINDING ·,:( 1 YEAF;::::; . · ·, · CDNr-~·I!'I!::I'JI':::r.,lT . JN .THE: INSTITUTIDNf-~L. [lli/J'f_:;:( OF fHE TEXAS DEPARTMENT 'OF CRIMINAL AND A FINE OF ~ O- - . . . .. . :.-, T!ME CREDITED: j/9/98 TO 4/9(9$ ,·· .,': ;,' .... • ,1''. '• ~- -~···. ' APPENDIX 11: Proof of Incarceration (3pp.) (a) TDCJ INTERNET/WEBSITE PRINTOUT (2pp.) (b) TDCJ RECORD'S OFFICE PRINTOUT TDGJ Offender Details http://offender.tdcj.texas.gov/OffenderSearch!ofienderDetail.action'!si ... .! g 11:$.:1 [iii TDCJ Home - New Offender Search Offender Information Details Return to Search list SID Number: 05830777 T DCJ Number: 00851492 Name: OWENS,RONROYAL J Race: 8 Gender: M DOB: 1964-03-22 Maximum Sentence Date: 2018-11-12 Current Facility: NEAL Projected Release Date: 2018-11-12 Parole Eligibility Date: 2008-11-11 Offender Visitation Eligible: Information provided is updated once daily during weekdays and multiple times per day on visitation days. Because this information is subject to change, family members and friends are encouraged to call the unit prior to traveling for a visit. SPECIAL INFORMATION FOR SCHEDULED RELEASE: Scheduled Release Date: Offender is not scheduled for release at this time. Scheduled Release Type: Will be determined when release date is scheduled. Scheduled Release Location: Will be determined when release date is scheduled. , ,_ Parole Review Information j Sentence Sentence Offense Date County Case No. (YY-MM-DD) 1 of2 6/2/2015 1:25 Pr TDCJ Offender Details http://offender.tdcj.texas.gov/OffenderSearch/offenderDetail.action?si ... ·-·---·--------------------,---------- 1997-03-04 INDEC W/CHILD u 14YRS 1998-11-13 ----------- ---------------------------r------------------·--- ----,------~t-------- DALLAS I F-9801040-T --------i------- 20-00-00 ----------------- 1998-02-09 ATI AGG SEXUAL ASLT CHILD U/14 ! I 1998-11-13 ! DALLAS 'F-9867384-MT 20-00-00 Return to Search list The Texas Department of Criminal Justice updates this information regularly to ensure that it is complete and accurate, however this information can change quickly. Therefore, the information on this site may not reflect the true current location, status, scheduled termination date, or other information regarding an· offender. For questions and comments, you may contact the Texas Department of Criminal Justice, at (936) 295-6371 or webadmin@tdcj.texas.gov. This information is made available to thi/pub!ic and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution. New Offender Search TDCJ Home Page 2of2 6/2/20151:25Pl\ ·····-- ~-·- ... ., .. ..; ··-... .:::::.. :":_; -:;· ;_J.. .---:-· '·' -·'" -:·-~ (.~. --·i ~:"··- ;;---: .. ·~-~- ~~­ u: _j ..~ •.;_ --·.. •'' :-1 :::r_: w :~:j ;SJ (::• (;J !~D ;__ ) u L =::o:~:;.-= c.: (1:\ _::- !~ ~-· ~"' !9 G '·'-" ;:n . . ~.: :)•: '·..L cr·1 .J ··-... ':::- >~- .:·- .::- ::]~ r.:c ([ (J: --- ~::! r-.. ~ c:= -·:_. 1:! ··~ ... ~-- (n :..:.i LiJ r.:: ... · (_! C~1 _J :_,, (.!:l UJ CO u; CO : _ _i i .. _i ; __ I : ; :.-:- .;.:-: _ E ;~.. -~=- :-.:. ·-·-' :_;.: ,·,-, ···:: ·--- --· u·J .,..-; :-: ·-· ::_r lJ.i ;--: CJ _J !...L o::: cr.: ._.: ... o.:.: >- ::.- ·:::- >- >- >- !·r·· ..--i G =j :-- ···- C.~i LlJ >- ··... i--. cc: !-! \.;.~ !-- :.D 1.D c:; 1.tf C1J ... ·.--1 .,-; f~J .....; ·-.T .,....: :·:,: c~ iS) ,. r-~ i_l_! r.n a :.:U L:J • .1.- u: ::: ~ .n jj r.n :::- LJ ! LLI =- ..:::.. ,., !- L: i ~:: .... CL :.J...; r::; .:I :.J_ L.~ ' ....! ::·-1 L_"j ,_:-~ :-~ ; ....; _.:-- i-! ,... : ~1 ·.:J L.U .: .. uJ t.L: ::;. ··· ·.::r LlJ :·... =.I ::I ;=l :j:"~ Q:.: o:..: 7:: (_J :::.£~: !...~. <I _,: :_ ··'"'·· >< ·-,1 __ W L.u ::> r----. ;_iJ UJ () ::~ Li..i ., ..~ :.:.i UJ U.. ·=- ::- E L..!... ;-- :---·- l(i ;-....; i-·-1 __ ; .. : !]~; j--- . ..J !-- \ __: r:;t :···: ·~ .. J ~;:;: ·- (f_ ;" ' :::·~ ,__ : .•: .• ·. .!., :::: ,_._ L.:. C( Ui· l._! :-~ :--~ u.J ;- i_!J 1-; ·--- ....... ,.-. •--! :_; f._! ::: ·E. !-·-! !_:! ;:r:: c~ u! :-: r.J.. ~-) ::I !-·- •':"; ~ APPENDIX 12: MOTION TO CORRECT JUDGMENT NUNC PRO TUNC (a) COVERLETTER (b) pg. 1 (c) pg. 2 (d) pg. 3 (e) proposed order I RONROYAL J. OWENS 85.1492 NEAL UNIT 9055 SPUR 591 AMARILLO, TX 79107 RICK r1AGNIS, PRESIDING JUDGE HOI.'i. CERTIFIED NO. 7099 32.GO 0005 1%9 2181 283rd JUDICIAL DISTRICT COURT 133 N. INDUSTRIAL BLVD., LB 33 DALLAS, TE~S 75207-4313 MAY 19, 2008 Re: MOTION FOR ENTRY OF NUNC PRO 1'U1-JC JUDGMENT Dear Judge Nagnis: Enclosed is my Motion to Corr·act Judgment by Nunc Pro Tunc ( 3pp. ) , ORDER (lp.), Motion to Docket (lp.), Motion for Judicial Notice of Adjudicative Facts (lp.), and ORDER (lp,). Also, you will find the following exhibits *Original· Judgment sheet in F98-01040-T 1 P• *Corrected Judgment sheet in F98-01040-T lp. *Original Judgment sheet in F98-67384-MT lp. *Corrected Judgment Sheet in r~8-67384-MT lp. *TDCJ Institutional Division Inmate Tirnesli~s lp. *Inmate Request to Official (Mr. Roberts-Law library Super.) lp. I am also including a carbon copy of this letter for your stan~ dated file mark as proof of fil8ing and a self~addressed envelope, postage prepaid, for your return of the carbon copy with your stamp. Thank you for considering this matter. CAUSE NOS. F98-0l040-1' F98-67384-MT RONROYAL J. OWENS, § MOVANT § § IN THE 283rd JUDICIAL DISTRICT v. § COURT I DALLAS I DALLAS COUNTY § TEXAS THE STATE OF TEXAS § MOI'ION TO CORRECT JUT.J....MEN'"r BY NUNC PRO TUNC Ronroyal J. OWens (owens) requests this court's help in correcting the errors in his judgment sheet as it pertains to the dates of his convictions, sentence and commencement date of his sentences. 'rhe judgment sheets (and all subsequent court records) reflect his conviction dates as November 13, 1998 (or some other date} when the actual I correct date is December 2, 1998. r. Jurisdiction It is OWens's understanding that the trial court always has jurisdiction to 'correct mistakes or errors in a judgment or order after the expiration of the court's plenary power, via entry of a judgment nunc pro tunc." State v. Bates, 889 S. W. 2d 306, 309 (Tex Cr. App. 1994). II. fo'acts On November 13, 1998 Judge Molly M. f·'rancis sentenced owens to two 20 year terms in the above cases, but did not adjudge him as guilty. •rwo weeks later, December 2, 1998, Judge Francis brought owens to court, appointed him counsel and held a sentencing hearing - in which she pronounced him guilty in both cases, sentenced him and ordered the terms to start on that date. since owens's convictions, all court documents reflect November 13th as his conviction date instead of December 2nd. The "corrected judgment" sheets, TDCJ in~te timeslips and the prison computers incorrectly reflect 11/13, or some other wrong date, as OWens's conviction date. See the highlighted portions of all of the exhibits. 1 of 3 III. Arguments and Authorities When the district clerk entered a "corrected judgment", she only changed ' the "TERMS OF THE PLEA" from "20 YRS. PENITENTIARY" to "OPEN." The judgment sheet does not correctly show the exact date OWens was pronounced, adjudged, found guilty and sentenced. His sentence commencement .date remained 11/13/98 rather than 12/2/98. During the December hearing the following colloquy occurred in open court: THE COURT: I got a couple of housekeeping things I need to do These are Cause Numbers F97-75579 [F98-01040-T] and F98-67384 M[r]. owens is present with Ms. Michelle Moore, the public defender out of this court •••• • * * THE COURT: •••• I was driving home on November 13th after we left court I realized that I had neglected to actually find you guilty ••• • * * THE COURT: So going back and kind of cleaning up a proce- dural mistake I do in each of the above nurnbered causes find you guilty •••• and set your punishment ••• at 20 years confinement in the state penitentiary Sentence to begin today. I will give you backtime, of course. • * * see pages 5, 6 and 7 of the reporters record of the December 2, 1998 pro- ceedings for the exact location of these quotes. OWens notes that he does not have a copy of this record and has no access to a copyier in order to supply the court with these statements of fact. OWens has requested that the court would take judicial notice of these facrts from its own records. The Texas Code of Criminal Procedure, Article 42.01 § 1 states that the judgment shall reflect: [16] the date the judgment is entered; [17] the date the sentence is imposed; - [18] the date the sentence is to convnence and any credit ••• 2 of 3 In this case, the ''corrected judgment" does not accurately reflect what happened on December 2, 1998, in open court, before Judge Francis. PRAYER OWens prays that this Court will GRANT this motion for the entry of a nunc pro tunc judgment and ORDER the district clerk to correct, modify or change the "corrected judgment" to reflect what was actually corrected and occurred during that proceeding •• Specifically, owens requests that the judgment show the appointment of Michelle Moore as his counsel, bis adjudication of his guilty by the judge, the imposing and start of his sentences. He also request that the court would GRANT him anything else it deems accurate, right and fair in this matter. RONROYAL UNS~ DECLAF.ATION I 1 Ronroyal J. owens, declare, under the penalty of perjury that all state- ments contained within this document are indeed true and correct as submitted 3 of 3 CAUSE NOS. F98-0l040-T & F98-67384-MT RONROYAL J. OWENS § § IN THE 283rd JUDICIAL DISTRICT v. § COURT, DALLAS, DALLAS COUNTY, § TEXAS THE STATE OF TEXAS § 0 R DE R This 283rd Judicial District Court of Dallas County, Texas hereby GRANTS this Motion to correct Judgment by Nunc Pro Tunc and ORDERS the district clerk to make the record accurately reflect the proceedings of December 2, 1998 as OWens's conviction date, the start of his sentence and his representaion by attorny Michelle Moore. This 0 R D E R ~s entered on this day of May, 2008. PRESIDING JUDGE APPENDIX 13: JUDGMENT AND SENTENCE NUNC PRO TUNC (2pp.) (a)F98-01040-T (b) F98-67384-MT — 2 — .... upon the minutes ofthis court, be now entered upon the minutes ofthis court. STATE OF TEXAS, § . ~...~ § § ~0. F98-0 1040-T § v. § t. ? § ::·..•..·~ § ..... ;. RON ROYAL OWENS, § JUDGMENT AND SENTENCE The said Ronroyal Owens was convicted on the record in open court by the trial court on the date of December 2, 1998. The sentence of incarceration for 20 years was orally pronounced and imposed on the date of December 2, 1998. The said Ronroyal ii -.'{;.,W;'(';! Owens was represented by the Hon. :Michelle Moore at the hearing on December 2, 1998. ORDER By affixing my si!,mature hereto, the Court hereby issues the foregoing Judgment and Sentence Nunc Pro Tunc. SIG~ED A:'-JD ENTERED this the J 1s• day of August, 2009. . ~-;. J~ ..- . ~ .. upon the minutes of this court, be now entered upon the minutes of this court. STATE OF TEXAS, § § \ ~ ~·- . § NO. F98-67384-MT § v. § § § RONROY AL OWENS, § JUDGMENT AND SENTENCE The said Ronroyal Owens was convicted on the record in open court by the trial court on the date of December 2, 1998. The sentence of incarceration for 20 years was orally pronounced and imposed on the date of December 2, 1998. The said Ronroyal Owens was represented by the Hon. Michelle Moore at the hearing on December 2, 1998. ORDER By affixing my signature hereto, the Court hereby issues the foregoing Judgment and Sentence Nunc Pro Tunc. SIGNED AND ENTERED this the 31 ~~day of August, 2009. .- .. ·· :- 2 ...... ·'_. · •I> APPENDIX 14: MAY 15, 2008, LETTER FROM MICHELLE MOORE May 15, 2008 Michelle Moore Dallas County Public Defenders Office 133 N. Industrial Blvd. 9th Floor, Suite C-1, LB 2 Dallas, TX 75207 Ronroyal Owens #851492 Neal Unit 9055 Spur 591 Ailiaii::o, TX 78i 07 Dear Mr. Owens: I am in receipt of your letter dated March 30, 2008. Judge Francis had me step in for the final part of the sentencing phase because Ms. Shelton was nowher8 to be found. The court called her office and tried every phone number that they had. Both sides had rested, closed and argued. The judge had made her decision, and all that was left was the formal sentE3ncing. Since I was the public defender in Judge Francis' court, she had me step in for the formal sentencing. You might look at the status of Ms. Shelton's license at the time. She has had problems keeping it in good standing . . . _. ;, 133 N Industrial Blvd. 9"' Floor, LB 2 "''""'Dallas Texas 75207-431~ -G- Phone (214) 653-3550 "'"'Fax (214) 653·3539 ·o' APPENDIX 15: OCTOBER 16,2008 LETTER FROM MICHELLE MOORE \ .. October 16, 2008 Michelle Moore Dallas County Public Defenders Office 133 N. Industrial Blvd. 9th Floor, Suite C-1, LB 2 Dallas, TX 75207 Ronroyal Owens #851492 Neal Unit 9055 Spur 591 Amarillo, 'IX 1910/ Dear Mr. Owens: It appears that the court is currently conducting a judicial review of your case. I don't know what that means other than Judge Magnis is looking at your case. Judge Francis had me stand in for Catherine Shelton on your sentencing only as your attorney, Catherine Shelton, failed to appear for the sentencing and failed to return repeated phone calls from the court to appear. This is not a void sentencing. Good luck with your case. "".._133 N. Industrial Blvd., gth Floor, LB 2 ....,.c... Dallas Texas 75207-4313-0 Phone: (214) 653-3550-0 Fax (214) 653-3539 "'"" APPENDIX 16: MARCH 29, 2011, LETTER FROM MICHELLE MOORE TO JUDGE RICH MAGNIS Dallas County Public Defender's Office March 29, 2011 Michelle Moore Dallas County Public Defenders Office 133 N. Riverfront Blvd., LB 2 Dallas. TX 75207 Judge Rick Magnis 283rd Judicial District Court Dallas, rexas Dear Judge Magnis: - I have no file on Ron royal Owens._ I never had a file on that case since I was pulled in to stand with Mr. Owens on the verdict only. Catherine Shelton was the attorney of record, who tried the case. However, I believe she is now disbarred. --~)'/_~it--h]:_-Kind1esw~s·-~ / --1; dwJ~Ji} !)-'/ ~ /M/c ~~~~ Moom ~! APPENDIX 17: MOTION TO CORRECT "JUDGMENT AND SENTENCE" BY NUNC PRO TUNC (20ll)(ipp.) (a) COVERLETTER (b) pg .1 (c) pg.2 (d) pg. 3 (e) pg.4 (f) proposed order RONROrAL J. ·OWBNS 851492 NEAL UNINT 9055 SPUR 591 AMARILLO, TX 79107 HON. RICK MAGNIS,. PRISIOING JUDGE CMRRRI7009 2250 0002 7032 28lrd JUDICIAL DISTRICT OOURT 133 N. RIVBRP'ROtfl' BLVD. LB 33 DALLAS, TEXAS 75207-4313 APRIL· 15, 2011 Re: Motion to Correct "Judgment and Sentence" by Nunc Pro 'l'wlC in casea 11'98-67384-MT AND i'98-Ql040-Ti State of Texas v. Ronroyal J ~ Owens Dear Judge Magnis: Enclosed is my Motion to Correct ._Judgment and. Sentence"by NUnc: Pro Tunc (4pp.), unsworn Declaration (2pp). Order and £10tion to Docket and set , for a Hearing •• AlBO, you will find the f'llowing exhibits: 1: eontract of Employment for catherine Shelton lp. 2(a) and (b): Defendant's Motion for New TRial in 1'98-67304/01040 2pp. ., 3: MOtion to correct Judgment by Nunc Pro Tunc (pp 1 &3) 4: (a0 and (b): Judgment and Sentence Nunc Pro Tunc and J\ldglnQnt and Sen- tence (Back/Front) F98-67384/0l040 2pp. 5: Motion for a O'.Xftplate COpy of the Public Defender's (and Defendant's) Caae File pursuant to Maxwell v. Florida... lp. 6: tetter to Judgma Rick ~~gnis for Hon. Michelle Moore (Public Defender) Dated March 29, 2011 lp. 7(a}-(f): Partial portion of the Court Reportet'a Record of December 2, 1998, Puniahn~nt/Sentencing Hearing 6pp. 8: Trial Court's Dicket Sheet of Court Orders lp. Judge Ma9nis, I am also including a carbon COt>'f of this l-atter for your stamp date filed and a self-addressed envelopu, posta9a prepaid for you to return the carbon copy. · Your Honor, please consider and enter a ruling on this motion at your earlieat convGnience. Lastly, havo you' entered a ruling on my Motion m il CQm 1 wtte Copt C8 for a complete Copy of the Public Defender'a ••• case Pile? If so, I would like a copy of the ORDER. Thank you, Judge Magnis, for your attention and diligence in resolving 1 of 2 each matter I · have placed befora you and foe specifically inquiring about Attorney Moore's files. 2 of 2 .; STATE OF TEXAS § IN TH! 283RD § v. § JUDICIAL DISTRICT COURT § RONROYAL J. OWENS § DALLAS COUNTY I TEXAS fCl'ION TO ~ "JtJDGMBNT AND SEN'J.'ENCB• BY NUNC PRO 'l'ONC I, Ronroyal J. owena (a pro ae inmate), rdQU9st this court •s help in, correcting a mistake in the AugUI:it 31, 2009, "Judgment and sentence" because of new information ~rovided to this Court by Michelle Moore (the Dallas COunry PUblic Defender) confirming that catherine Shelton was, in fact, )my "attorney of iilcord" in the above styled and numbered causes. I. Jurisdiction This Court has jurisdiction to "correct mistakes or errors in a judgment or order after the expiration of the court's plenary power, via entry of a judgment nunc pro tunc." State v. Bates, 889 s.w. 2d 306,309 (•rex. cr. App. 1994). I. Statement of Facts On june 15, 1998, I retained the Hon. catherine Shelton as my attorney (Exhibit 1) and she actively represented me Wltil· December 11, 1998. Exhibits 2(a)(b). In May 2008 I requested that this honorable Court would enter a judgment by nunc pro tunc to correct my conviction date from November 13, 1998, to December 2, 1998. Also, I specifically asked uthat the judgment show the appointment of Michelle Moore a::J ••• counsel." Exhibit 3. This COurt verified my statements from the appellate reco~ds and the District Attorney's office and granted my requests. On August 31, 2009, this COurt issued" (1) a "Judgment and Sentence Nunc Pro Tunc and (2) a "Judgment and Sentence." partic~ar, Judgment and sentence" 11 In only the l of 4 portion of the Court's order mistakenly reflect that I •was represented by the Hon. Michelle l1oore at the haaring on December 2, 1998." Exhibits 4(a)(b). Four months later, I moved to receive a complete copy of my case files from M.s. Moore because I am currently engaged in collateral proceedings. EXhibit 5. Fifteen days ago, Moore informed this COurt that she "never had a file" on me and that my retained lawyer. •catherine Shelton vas the . attor:ney of record [] who tried the case. • Exhibit 6. The Clerk's rcords confirm this fact and demonstrate Shelton's continued representation of me throug December 11, 1998 - nine days after the December 2nd conviction and sentence. exhibits 2(a)(b). A_ thorough rereading of the December 2, 1998, reporter's record - in light of this new information --ceveale that Judge Francis never appointed Moore as my attorney. The record only shows that Moore was present with me during the hearing {Exhibit 7(b)) and that the judge did not allow me to confer with Moore until after I was convicted and sentenced to priaeon. Exhibits 7(d) (e). In a letter to this Court, Moore explains that she was "pulled to to stand vith[me) on the verdict only", but never says she was appointed to represent me. exhibit 6. Finally, the trial court's own recordll cb not show . that Judge Francis appointd Moore to represent me on December 2, 1998; only that Moore assisted me in filing a (new) notice of appeal. Exhibit 8. This fact is further corroborated by the court reporter's record when the .Judge stated: "Ms. Moore is going to check those files and be sura that there is' a notice of a~al. an appropriate nor.ice of appeal. Let 'a do the pauper on~.• • while t-ir. OWens is here. There may be something alrady in the filG •••• but we do the formal notice of appoal w-hare an (appeal] attorney is appointed" [Exhibit 7(e)]. 2 of 4 No clQrk's records ~xist showing Moore's appointment and Shelton's with- drawal or removal. III. Arguments and Author! tles a. 'nle r.aw: Tne Texas Code of Criminal Procedure, Articla 42.01 § 1 mandates that "[t]he judgment shall :reflect.... 2. • •• the attorney for the defendant." B. The Application: First, Michelle Mo0res's letter to this Court makes it crystal clear that catherine Shelton was, in fact, my attorney of recors in these cases and Moore was "pulled in" to merely "stand with" me for "the verdicrt only." M:>ore did not consider herself to be my attorney and never created or had an attorney-client relatiship with me, nor did she ever possess or initiate any court or case filings on (or for) me. second, the district clark's rec01.'"ds confirm that· Shelton indeed continued to actively represent me as late as December 11, 1998, by seeking a new trial on my behalf. At no time (before this date) did Shelton withdraw as my counsel. 1 did nott Jrter l"emeval ft6l" ref'lae:ernent! an6 l Eliti rtet llelc request her removal nor replacamant and I did not ask for a public defender. Lastly, the law requires that the jud9mant accurately reflect my attorney of record and "its entry [into the judgment) is a ministerial act"for the court to perform. Jones v. State, 797 s.w. 3d 33, 35 n.3 (Tex. cr. App. 1990). The "Judgment and Sentence" portion (on page 2 of ~llibit 4(a)(b) can only reflect that Catherine Shilton was my attorney of record through 12/11/98 because that's what actually occurr~ ~~er Jud)e Francis and- according to the recorda. I Clj?Ologize to this honorable Q:Jurt and admit that I was indeed confused about rrry representation and the events on december 2nd when I requested 3 of 4 my initial nunc pro tunc. IV. PRAYER I' Ronroyal J. owens, pray that this Court I upon :::-eviawing tha facts I will GRANT this motion for entry of a nunc·pro tunc jlJdgmant to correctly demonstrata tll::tt the don. Cdti1sr.ine Snalton iia8 irrt ·J.t:torney of record and 'tllf casas, and has ruwer had a file ·on •ilY cases. ~qQRN DECLARATION I, Ronroyal J. OWens, declar~ under the penalty of perjUry that. all statements containd ln this document ar1t true and correct as suanitted on this l5J:l1 day of ApriL 2011. 4 of 4 .· ,,1 . v. ccf1cct: trwc Silo.!. t:on in ')t;;;:l.t<;;lt wd.>::> ttis ·::lt:tocn.:y o£ c•.::.>eocd. -, APPENDIX 18: RULING ON MOTION FOR COMPLETE COPY OF PUBLIC DEFENDER'S (AND DEFENDANT'S) CASE FILE AND SUBSEQUENT JUDGMENT AND SENTENCE NUNC PRO TUNC (a) pg. 1 (b) pg. 2 (c) pg. 3 ~ l l IN THE 283RD JUDI&~J'irlJDISTRr,~TIC9URT DALLAS COUNTY, TEXAS STATE OF TEXAS, § §.: &- ·§ 'J ~':~NOS. F98-67384-MT § F98-01 040-T v. § § § RONROYAL OWENS, § §§§ RULING ON MOTION FOR COMPLETE COPY OF PUBLIC DEFENDER'S (AND DEFENDANT'S) CASE FILE AND SUBSEQUENT JUDGMENTANDSENTENCENUNCPROTUNC §§§ Having considered the written motion of Ronroyal Owens ("Owens") filed in this case asking for complete copy of the public defender's file pursuant to Maxwell v. Florida, 479 U.S. 974, the motion is hereby denied based on the facts that the portion of Maxwell upon which Owens relies is a dissenting opinion from a denial of certiorari. See Maxwell v. Florida, 479 U.S. 972 (1986). The law is well settled that dissenting opinions constitute no contro11ing authority. See, e.g., Davidson v. State, 737 S.W.2d 942, 947 (Tex. App.- Amarillo 1987, pet. ref d). Accordingly, Owens' motion is hereby· denied. Having considered Owens' second motion for judgment nunc pro tunc, the Court is of the opinion that the motion should be granted to an extent. Owens admits that he origina11y asked this Court to grant a judgment and sentence nunc pro tunc to reflect that — 2 — Miche11e Moore had been Ov-:ens' counsel on December 2, 1998. Additiona11y. Michelle Moore did stand in \Vith Owens for the purpose of receiving the verdict. However, Catherine Shelton was the actual attomey who was still representing Owens. Because Michelle Moore did stand:- in as counsel for the purpose of receiving the verdict and because Owens was also sti11 being represented by Catherine Shelton, the Court is granting the motion nunc pro tunc to the extent of directing that the judgment reflect that Owens was represented by Catherine Shelton and Michelle Moore. It is therefore considered, ordered, and adjudged by .the court that the following judgment and sentence, which was rendered herein on the 2 11 d day of December, 1998, by this court, but which was not then entered upon the minutes of this court, be now entered upon the minutes of this court. STATE OF TEXAS, § § § NOS. F98-67384-MT § F98-0 1040-T V. § § § RONROYAL OWENS, § JUDGMENT AND SENTENCE The said Ronroyal 0\vens was convicted on the record in open court by the trial coun on the date of December 2, 1998. The sentence of incarceration for 20 years was ·orally pronounced and imposed on the date of December 2, I 998. The said Ronroyal Owens v. ras represented by the Hon. Catherine Shelton during his trial proceedings and by the Hon. Michelle Moore at the hearing on December 2, 1998. ORDER / By affixing my signature hereto, the Court hereby issues the foregoing Judgment and Sentence Nunc Pro Tunc. 51 SIGNED AND ENTERED this the 31 day of October, 2011 . .., .) APPENDIX 19: FIFTH COURT OF APPEALS OPINION Writ of ,\Janda IIIIlS lh·nit:d. ()pinion issued l<'ehruar:v I (l, 2.0 12. In The Q.Iuurt of Appl'als lfiiftl~ Dh:rtrirt nf fficxas at IDall;t~~ -----···----·---···------- No. 05-12-00 15X-CV No. 05-12-00 159-CV IN RE I{ONROYAL .J. 0\VENS, Relator Original Proceeding from the 2X3rd .Judicial District Court Dallas Count:v, Texas Trial Court Cause Nos. F9X-01040 and F9X-673X4 MEMORANDUM OPINION Before Justices l'vlorris, Richter, and Lang-l'vliers Opinion hy Justice Richter l{elator contends the trial court violated a ministerial duty by not granting his motion for judg1ncnt nunc pro tunc in fuli. The t~tcts and issues arc well known to the parties. so we need not recount them herein. Based on the record before us. we conclude relator has not shown he is entitled to the rclicl-rcquested. See TEX. R. API'. P. 5::U;(a); Simon v. Lemrio, 306 S.W.Jd 318,320-21 (Tex. Crim. App. 2009) (orig. proceeding); S'tate of'Tex. ex ref. l/i//1'. Court o(.·lppealsfor theFijih Dist .. 34 S. W.3d tJ24, 927 (Tex. Crim. App . .200 I) (orig. proceeding). Accordingly, we DENY relator's petition for writ of mandamus. ·/// / ;' .~---<~i~[/~. /{// ~;·;_:~~:.··. ,\IIARTIN RICI1fErl . . . JUSTICE 120158F.P05 APPENDIX 20: FIFTH COURT OF APPEALS ORDER ON REHEARING Order issued March2~, 2012 In The <!tourt of i\pp.eaLs lliiftij IDistrirt of W.exas at IDaUas Nu. 05-12-00158-CV No. 05-12-00159-CV IN RE RONROY AL J. OWENS, Relator Original Proceeding from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F98-01040 ORDER Before Justices Monis, Richter and Lang-Miers The Court has before it relator's March 26, 2012 motion for a rehearing. The Court DENIES the motion. L APPENDIX 21: DECEMBER 20, 2012 LETTER TO DALLAS COUNTY DISTRICT CLERK DECEMBER 20, 2012 DALLAS COUNTY DISTRICT CLERK '··· HON. GARY FITZSIMMONS, CLERK 133 NO. RIVERFRONT BLVD. LB . ~}"-­ DALLAS, TEXAS 752 07 __ ; iY' : ;;, >I \Y. Re: December 2, 1998, court·o~der Appointing Hon. Michelle Moore as counsel in cause Nos. F98-01040-T and F98-67384MT. Dear Clerk: Enclosed is my $5.00 payment for a cerified copy of the 283rd Judicial District court's ORDER appointing the honorable Michelle Moore as counsel in trial cause nos. F98-01040T and F98-67384MT on (or about) December 2nd, 1998. Clerk, please search your records for these documents and send me certi- fied copies of them at: RONROYAL J. OWENS 851492 NEAL UNIT 9055 SPUR 591 AMARILLO, TEXAS 79107 For your convenience, I have included a self addressed postage prepaid (First Class) for your immediate response to this request. Thank you for your help in this matter. MERRY CHRISTMAS AND Happy New Year. APPENDIX 22: LETTER FROM DALLAS COUNTY DISTRICT CLERK GARY FITZSIMMONS DALLAS COUNTY DISTRICT CLERK Mr. Owens, Our department scanned your case file and did not find any documentation electing Michelle Moore as counsel. We do have other documents with her name on it so please write us back if you have any questions. Thank you. Sincerely, District Clerk Deputy P. Johnson 133 N. Riverfront BLVD. DALLAS. TEXAS 75207 MAIN (214) 653-5950 FAX (214)- 653-5986 e-mail:gfitzsimmons@dallascounty.org web site: www.dallascounty.orifdistclerklindex.html t':J.; defendant was convicted shall give the defendant credit on his sentence for the time that the Arl 42.03. Pronouncing Sentence; Time; Credit for Time Spent in Jail Between Arrest defendant has spent in jail pending disposition of his appeal. The court shall endorse on both the and Sentence or Pending Appeal commitment and the man~ate from the appellate court all credit given the defendant under this section, and the Texas Department of Criminal Justice shall grant the credit in computing the defendant's eligibility for parole and discharge. Sec. I. (a) Except as provided in Article 42.14, sentence shall be pronounced in the defendant's presence. Sec. 4. When a defendant who has been sentenced to imprisonment in the Texas Department of Criminal Justice has spent time in jail pending trial and sentence or pending appeal, the judge (b) The court shall permit a victim, close relative of a deceased victim, or guardian of a of the sentencing -court shall direct the sheriff to attach to the commitment papers a statement victim, as defined by Article 56.01 of this code, to appear in person to present to the court and to assessing the defendant's conduct while in jail. the defendant a statement of the person's views about the offense, the defendant, and the etTect of the offense on the victim. The victim, relative, or guardian may not direct questions to the Sees. 5 and 6. [Repealed by Act~ 1989, 71st Leg., ch. 785 (HR. 2335), § 4.24, effective defendant while. making the statement. The court reporter may not transcribe the statement. The September I, 1989.] statement must be made: Sees. 7, 7A and 8. [Deleted by Acts 1993, 73rd Leg., ch. 900 (S.B. 1067), § 5.03, effective (I) after punishment has been· assessed and the court has determined whether or not to grant September 1, 1993.) community supervision in the case; (2) after the court has announced the terms and conditions of the sentence; and (3) after sentence is pronounced. Sec. 2. (a) In all criminal cases the judge of the court in which the defendant is convicted . shall give the defendant credit on the defendant's sentence for the time that the defendant has spent: (I) in jail for the case, including confinement served as described by Article 468.009 and excluding confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court; (2) in a substance abuse treatment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, or another court-ordered residential program or facility as a condition of deferred adjudication community supervision granted in the case if the defendant successfully completes the treatment program at that facility; or '· ..· (3) confined in a mental health facility or residential care facility as described by Article 468.009. (b) In all revocations of a suspension of the imposition of a sentence the judge shall enter the restitution or reparation due and owing on the date of the revocation. Sec. 3. If a defendant appeals his conviction, is not released on bail, and is retained in a jail as provided in Section 7, Article 42.09, pending his appeaL the judge of the court in which the TXCODE TXCODE p 2015 Mauhew Bender&. Company. Inc .. a member of the LexisNcxis Group. All rights reserved. Use of this product is subject to the 'C 2015 Matthew Bender It Company. Inc .. a member of the LcxisNexis Group. All rights rcscn·ed. Usc of this product is subject to the restrictions and temu and ~onditions of the Matthtw Bender Master Agreement. restrictions and tcnns and conditions of the Mauhe\" Bender Master Agreement pronounced and credits earned by the defendant under Article 42.03 as of the date of the Art. 42.09. Commencement of Sentence; Status During Appeal; Pen Packet statement. .. Sec. 8. (a) A county that transfers a defendant to the Texas Department of Criminal Justice Sec. I. Except as provided in Sections 2 and 3, a defendant shall be delivered to a jail or to under this article shall deliver to an ·officel_designated by the department: the Texas Department of Criminal Justice when his sentence is pronounced, or his sentence to (.1) a copy of the judgment entered pursuant to Article 42.0 I, completed on a standardized death is announced, by· the court. The defendant's sentence begins to run on the day it is felony judgment form described by Section 4 of that article: pronounced, but with all credits, if any, allowed by Article 42.03. (2) a copy of any order revoking community supervision and imposing sentence pursuant to Sec. 2. If a defendant appeals his conviction and is released on bail pending disposition of Section 23, Article 42.12, including: his appeal, when his conviction is affirmed, the clerk of the trial court, on receipt of the mandate from the appellate court, shall issue a commitment against the defendant. The officer executing (A) any amounts owed for restitution, fines, and court costs, completed on a standardized the commitment shall. endorse thereon the date he takes the defendant into custody and the felony judgment form described by Section 4, Article 42.01; and defendant's sentence begins to run from the date endorsed on the commitment. The Texas· .. .~· Department of Criminal Justice shall admit the defendant named in the commitment on the basis (B) a copy of the client supervision plan prepared for the defendant by the community of the commitment. · supervision ·and corrections department supervisin~ the defendant, if such a plan was prepared: Sec. 3. If a defendant is convicted of a felony and sentenced to death, life, or a term of more (3) a written report that states the nature and the seriousness of each offense and that states than ten years in the Texas Department of Criminal Justice and he gives notice of appeal, he shall the citation to the ·provision or provisions of the Penal Code or other law under which the be transferred to the department on a commitment pending a mandate from the court of appeals defendant was convicted; or the Court of Criminal Appeals. (4) a copy of the victim impact statement, if one has been prepared in the case under Article Sec. 4. If a defendant is convicted of a felony, is eligible for release on bail pending appeal 56.03; under Article 44.04(b). and giv~s notice of appeal. h.e shall be transferred to the Texas (5) a statement as to \vhether there was a change in venue in the case and, if so, the names of Department of Criminal Justice on a commitment pending a mandate from.the Court of Appeals the county prosecuting the offense and the county in which the case was tried; or the Court of Criminal Appeals upon request in open court or upon. written request to the sentencing court. Upon a valid transfer to the department under this section, the defendant may (6) if requested, information regarding the criminal history of the defendant, including the not thereafter be released on bail pending his appeal. defendant's state identification number if the number has been issued; Sec. 5. If a defendant is transferred to the Texas Department of Criminal Justice pending (7) a copy of the indictment or information for each offense: appeal under Section 3 or 4, his sentence shall be computed as if no appeal had been taken if the (8) a checklist sent by the department to the county and completed by the county in a manner appeal is affirmed. indicating that the documents required by this subsection and Subsection (c) acco.[llpany the Sec. 6. All defendants who have been transferred ·to the Texas Department of Criminal defendant: ·· Justice pending the appeal of their convictions under this article shall be under the control and (9) if prepared, a copy of a presentence or postsentence investigation report prepared under authority of the department for all purposes as if no appeal were pending. Section 9, Article 42.12; Sec. 7. If a defendant is sentenced to a term of imprisonment in the Texas Department of (I 0) a copy of any detainer, issued by an agency of the federal government, that is in the Criminal Justice but is not transferred to the department under Section 3 or 4, the court, before possession of the county and that has been placed on the defendant: the date on which it woulp lose jurisdiction under Section 6(a), Article 42.12, shall send to the department a document containing a statement of the date on which the defendant's sentence was (II) if prepared, a copy of the defendant's Texas Uniform Health Status Update Form: and TXCODE TXCODE t:· 2015 Matthew Bender & Company. Inc .. a member of the LcxisNe.xis Group. All rights rcscrYcd. Usc ofth.is product is subject to the t:· lOIS Matthew Bender & Company. Inc .. a member of the Lc."~>isNcxis Group. All rights rcscrocd. ·Use of this product is subject to the restrictions and 1cnns and conditions of tbc Man hew Bender Master Agreement. restrictions and tcnns and conditions or the Matthew Bender Maslcr Agreement. this section. the presiding judge may impose those duties on: . (12) a written description of a hold or warrant, issued by any other jurisdiction. that the county is aware of and that has been placed on or issued for the defendant. (I) the district clerk; or (b) The Texas Department of Criminal Justice shall not take a defendant into custody under (2) the prosecutor of each district court in the. county. this article until the designated officer receives the documents required by Subsections (a) and (c) of this section. The designated officer shall certify under the seal of the department the (h) If a parole panel releases on parole a person who is confined in a jail in this state, a documents received under Subsections (a) and (c) of this section. A document certified under this federal correctional institution, or a correctional institution in another state, the Texas subsection is set [-authenticated for the purposes of Rules 90 I and 902. Texas Rules of Evidence. Department <if Criminal Justice shall request the sheriff who would otherwise be required to transfer the person to the department to forward to the department the information described by (c) A county that transfers a defendant to the Texas Department of Criminal Justice under this Subsections (a) and (c) of this section. The sheriff shall comply with the request of the article shall also deliver to the designated officer any presentence or postsentence investigation department. The dep~ment shall determine whether the information forwarded by the sheri!! report, revo'tation report, psychological or psychiatric evaluation of the defendant, including an under this subsection contains a thumbprint taken from the person in. the manner provided by evaluation prepared for the juvenile court before transferring the defendant to criminal court and Article 38.33 of this code and, if not. the department shall obtain a thumbprint taken in the contained in the criminal prosecutor's file, and available social or psychological background manner provided by that article and shall forward the thumbprint to the department for inclusion information relating io the defendant and may deliver to the designated officer any additional with the information sent by the sheriff. information upon which the judge or jury bases the punishment decision. (i) A county may deliver the documents required under Subsections (a) and (c) of this section (d) The correctional institutions division of the Texas Department of Criminal Justice shall to the Texas Department of Criminal Justice by electronic means. For purposes of this make documents received under Subsections (a) and (c) available to the parole division on the subsection. "electronic means" means the transmission of data between word processors, data request of the parole division and shall, on release of a defendant on parole or to mandatory processors, or similar automated inform.ation equipment over dedicated cables, commercial lines, supervision. immediately provide the parole division with copies of documents received under or other similar methods of transmission. Subsection (a). The parole division shall provide to the parole officer appointed to supervise the defendant a comprehensive summary of the information containe!l in the documents referenced G) If after a county transfers a defendant or inmate to the Texas· Department of Criminal in this section not later than the 14th day after the date of the defendant's release. The summary Justice the charges on which the defendant or inmate was convicted and for which the defendant shall include a current photograph of the defendant and a complete set of the defendant's or inmate was transferred are 'dismissed, the county shall immediately notify an officer fingerprints. Upon written request from the county sheriff, the photograph and fingerprints shall designated by the department of the dismissal. be filed with the sheriff of the county to which the parolee is assigned if that county is not the Sec. 9. A county that transfers a defendant to the Texas Department of Criminal Justice county from which the parolee was sentenced. under this article may deliver to ·an officer designated by the dep~rtment a certified copy of a final (e) A county is not required to deliver separate documents containing information relating to order of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by the citations to provisions of the Penal Code or other law and to changes of venue, as otherwise inmate while the inmate was confined in the county jail awaiting transfer to ihe department required by Subsections (a)(3) and (a)(5) of this ·article, if the standardized felony judgment form following conviction of a felony or revocation of community supervision, parole, or mandatory described by Section 4. Article 42.01, of this code is modified to require that information. supervision. The county may deliver the copy to the department at the time of the transfer of the inmate or at any time ;~fter the transfer of the inmate. (f) Except as provided by Subsection (g) of this section, the county sheriff is responsible for ensuring that documents and information required by this section accompany defendants sentenced by district courts in the county to the Texas Department of Criminal Justice. (g) If the presiding judge •Of the administrative judicial region in which the county is located determines that the county sheriff is unable to perform the duties required by Subsettion (f) of p TXCODE 3 TXCODE to 201!1 Matthew Bender&. Company, loc .. a member of the Lc.xisNc:ds Group. All rights p::ser,.cd. Usc of UUs product ts subject to the (: 2015 Matthew Bender & Company, Inc:· a member oflhe LcxjsNcxis Group. AU rights reserved. Usc: of this product is subject to abe rcslrictioru and tcnns and conditions or the Mauhcw Bender Master AgrecmcnL n:strictions and tenns and conditions of the Matthew Bender Master Agrecmc:nl I J ·- ·-~ '·.. . <~ ' \ ex:> :JQ II III II :;:t7· ;. -.!:) 3' 'C'!J u\ 0 U'"-( ·Z ~ -i>· :J<::.. lUI ~ ~ I ....(:) ~ (.f'J ~ :l> r .._a ~ zrn r e: ~ > ~ u\ r 6 c - ~ z - --1 ~ TT1 z(.)? ~ ~ '0 ~ ====:==:== ==:=:=::=== --··~-~~~~UII- ~~:~~~~:~!~ --··1-IUIWW- ;=;;;~;~= ~~:=~~~!~_!~ --···-llllllllll- =====:::::::= ~=:~~~~!.~~ ~ ~ 'I !!!. ::.: ~ ~ cCll ;o <- .... Q) iS ~ "'::>c: -<"' cCll "tt Cll "'~ -1 . ~ \l ~ i> ::a ... b 0 3 to-o ,-i. - ~ ~ sn "' ~ - :(' ® Footnotes [2] of 32 [4] of 32 [5] of 32 [9] of 32 [10] of 32 [11] of 32 [12] of 32 [13] of 32 [14] of 32 [15] of 32 [17] of 32 [18] of 32 \ [19] of 32 [20] of 32 [21] of 32 [22] of 32 [23] of 32 [24] of 32 [27] of 32 in open court in cause numbers F97-75579 and F98-67384 and the judge's written J ud SIYle.l\t Ashowing that he was also convicted and sentenced in cause number F98-01040-T, the Thompson Court stated that the only solution is to let Judge Francis' oral pronouncement control and to "reform the [trail court's] written judgment" sheets in cause number F98-01040-T "to conform to the sentence that was orally Khe..A.Y\ '> pronounced." To do this ~ that the trial court's written judgment in F98-01040 must be declared void because no judg~ent was ever rendered in ·that cas~ number. In fact, this is exactly what the Thompson Court did when it stated: " ••• quite simply, appellant . [Thompson] was never sentenced on the second count. The trial court made a mistsake in entering a sen- tence of 30 years in the written judgment. Because no sentence was ever rendered, there ~s no valid judgment ••. " Thompson v. State, 108 S.W.3d at 290. In short, Judge Francis never rendered a judgment'and sentence in cause number F98-01040-T. Consequently, there is no valid judgment in this case and the written judgments are therefore void. Thus, Judge Francis lacked the authority to enter a written judgment in F98-01040 and the trial court must therefore vacate its written judgments pertaining to this cause. See Stearnes v. Clinton, 780 S.W.2d at 220. [28] of 32 [31] of 32 PRO SE UNSWORN DECLARATION I declare under the penalty of perjury th~ the foregoing is true and correct and that the appendixes affixed hereto are copies of the certified, original and authentic documents on file with the cort and clerk. [32] of 32 APPENDIX TO THE PETITION FOR WRIT OF MANDAMUS, WRIT OF CERTIORARI AND WRIT OF PROCEDENDO Relator, Ronroyal J. Owens, submits the following documents in support of the petitions for writ of mandamus, writ of certiorari and writ of pro- cedendo. LIST OF DOCUMENTS 1: Attorney:Catherine Shelton' Contract of Employment 2: Order Substituting Counsel 3:Motion for New Trial filed by Shelton on December ll, 1998 (2pp.) (a) Cause No. F98-01040 (b) Cause No. F98-67382 4: Court Reporter's Record of December 2, 1998 proceedings (9pp.) (a) pg.l (b) pg.S (c) pg .6 (d) pg.7 (e) pg.8 (f) pg.9 (g) pg~10 (h) pg .• ll (i) pg.l3, reporter's certification 5: Docket sheets (2pp.) 6: Prose Notice of appeals (2pp.) (a) cause No. F98-0l040 (b) cause No. F98-67384 7: Motion for New Trial filed by Moore (2pp.) (a) Cause No. F98-0l040 (b) Cause No. F98-67384 8: Notice of ·Appeal filed by Moore (2pp.) (a) Cause No. F98-01040 (b) Cause No. F98-67384 9: Judge Francis' Judgment Sheets ( 2pp. ) (a) cause No. F98-01040 (b) Cause No. F98-67384 1 of 2