Cooper, Johnathan

ZfS-IS NO. PD-0895-15

COURT OF CRIMINAL APPEALS OF TEXAS

TEX." R. APP. P. 68.2(a) ORIGINAL

RECEIVED ?R "RTOFCRIiI'MALA^^-ALS JOHNATHAN COOPER,

Appellant SEP 23 2015

VS. FILED IN COURT OF CRIMINAL APPEALS THE STATE OF TEXAS, SEP 23 IZ'.j Appellee

Abel Acosta, Cierk

Oh Petition for Discretionary Review

from the Second Court of Appeals in No. 02-15-00145-CR Affirming the Conviction

in No. 1031532D from the

297th District Court

Tarrant County, Texas

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Johnathan Cooper TDCJ No. 1862306 F.M. Robertson Unit 12071 FM 3522 Abilene, TX 79601 Appellant, pro se

IDENTITIES OF PARTIES

APPELLANT Johnathan Eugene Cooper

STATE'S ATTORNEY ON APPEAL Debra Windsor Assistant District Attorney 401 W. Belknap St. Fort Worth, TX 76196-0201

TRIAL JUDGE Honorable Everret Young 297th Judicial District Court Tarrant County, Texas

HABEAS TRIAL JUDGE Honorable David C. Hagerman 297th Judicial District Court Tarrant County, Texas

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TABLE OF CONTENTS

IDENTITIES OF PARTIES ii TABLE OF CONTENTS iii INDEX OF AUTHORITIES iv-v

STATEMENT REGARDING ORAL ARGUMENT 1

STATEMENT OF THE CASE 2

STATEMENT OF PROCEDURAL HISTORY 3

GROUNDS FOR REVIEW 4

1. Does the court of appeals have any jurisdiction to review the slower court's denial of Appellant's motion requesting appointment of counsel for purposes of invest igating, preparing and presenting his ineffective assist ance of counsel claim(s) in a postconviction Article 11.07 application for writ of habeas corpus?

2. Did the court of appeals err in concluding that it does not have jurisdiction to review the lower court's decision without conducting proper inquiry?

3. What court would have proper jurisdiction to review denial of a request for appointment of counsel made pur suant to article 11.074, Tex. Code Crim. Proc?

REASONS FOR REVIEW 5

ARGUMENT AND AUTHORITIES 6-10

Ground 1 6-8

Ground 2 8"10

qround 3 10

PRAYER 11

UNSWORN DECLARATION 11

CERTIFICATE OF SERVICE 12

APPENDIX 13-19

ill

INDEX OF AUTHORITIES

CASES

Bright v. State, 296 S.W.3d 329 (Tex.App. - Amarillo 2009) 7, 8

Martinez v. Ryan, 132 S.Ct. 1309 (2012) 6

McKown v. State, 915 S.W.2d 160 (Tex.App. - Fort Worth 1996, no pet.). 7

Pitts v. State, 113 S.W.3d 393 (Tex.App. - Houston [1st Dist.] 2003) 7, 8

Trevino v. Thaler, 133 S.Ct. 1911 (2013) 6

STATUTES

Tex. Code Crim. Proc. Article 1.051(d) 6 Article 11.07 4

Article 11.074 c 4# 10 Chapter 64 ' 7

Tex. Gov't. Code Section 24.016 6» 7 Tex. Pen. Code

Section 22.011(a)(2) 2 iv

STATEMENT OF THE CASE

After agreeing to plead no contest in exchange for a recom mended punishment of two years confinement (time-served), Appel lant was convicted of the offense of sexual assault of a minor, Tex. Pen. Code Ann., sec. 22.011(a)(2), in the 297th District Court of Tarrant County, Texas. Punishment was thereafter asses sed at the recommended two years confinement.

STATEMENT OF PROCEDURAL HISTORY

Proceeding pro se, Appellant filed motion in the convicting court seeking appointment of habeas counsel. That motion was denied. Appellant thereafter sought motion for reconsideration of the court's perfunctory denial. That motion too was perfunct orily denied by the convicting court on July 7, 2015. Appellant took timely appeal. In a written per curiam opinion issued.on June 18, 2015, the Second Court of Appeals dismissed the appeal for want of jurisdiction. No motion for rehearing was sought.

GROUND FOR REVIEW 1

Does the court of appeals have any jurisdiction to review the lower district court's denial of Appellant's motion request ing appointment of counsel for purposes of investigating, pre paring and presenting his ineffective assistance of counsel claim(s) in a postconviction Article 11.07 application for writ of habeas corpus?

GROUND FOR REVIEW 2 *

Did the court of appeals err in concluding that it does not have jurisdiction to review the lower court's decision with out conducting proper inquiry?

GROUND FOR REVIEW 3

What court would have proper jurisdiction to review denial of a request for appointment of counsel made pursuant to article 11.074, Tex. Code Crim. Proc?

REASONS FOR REVIEW

1. The court of appeals' decision conflicts with another court of appeals' decision on the same issue. TEX. R. APP. P. 66.3(a)

2. The court of appeals has decided an important question of state law that has not been, but should be, settled by the Court of Criminal Appeals. TEX. R. APP. P. 66.3(b).

3. The court of appeals has so far departed from the ac cepted and usual course of judicial proceedings as to call for an exercise of the Court of Criminal Appeals' power of super vision. TEX. R. APP. P. 66.3(f).

GROUND FOR- REVIEW 1

Statement of Facts

Appellant filed in the 297th District Court of Tarrant Coun ty, Texas, his motion seeking appointment of habeas counsel pursuant to the United States Supreme Court's decisions in Mar tinez v. Ryan, 132 S.Ct. 1309 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013), as well as article 1.051(d), Tex. Code Crim. Proc, and section 24.016, Tex. Gov't. Code, for the speci fic purpose of investigating, preparing and presenting his claim of ineffective assistance of counsel in an article 11.07 applica tion for writ of habeas corpus. That motion was perfunctorily denied by the district court. Appellant thereafter filed motion for reconsideration in the district court which was denied on July 7, 2015. Appellant timely noticed appealed to the Second Court of Appeals sitting at Fort Worth, Texas.

On May 13, 2015, concerned that it lacked jurisdiction over the appeal because it "has no jurisdiction over matters relating to postconviction applications under article 11.07, including requests for appointment of counsel," the court of appeals not ified the parties that if either desired to continue the appeal, they must file with the court, on or before May 26, 2015, a response showing grounds for continuing the appeal (Cooper v.

State, COA No. 02-15-00145-CR j) K'Appendlat li7vl.8).. Appellant filed a pro se response to the court's May 13, 2015 letter.

In a written per curiam opinion issued on June 18, 2015, the court of appeals dismissed the appeal for want of jurisdict ion, explaining that it generally has jurisdiction to consider an appeal by a criminal defendant only from a judgement of con viction, citing McKown v. State, 915 S.W.2d 160, 161 (Tex.App. -Fort Worth 1996, no pet.). The court of appeals went on to opine that it does not have jurisdiction over a postconviction appli cation for writ of habeas corpus in a felony case, including a related motion for appointment of counsel (citations omitted) (Memo. Op., Appendix at Argument and Authorities

The court of appeals' disposition of the appeal conflicts with the Amarillo court of appeals' decision in Bright v. State, 296 S.W.3d 329 (Tex.App. - Amarillo 2009) (court of appeals

possessed limited jurisdiction to review the denial of appoint ment of counsel), as well as conflicts with the Houston court

of appeals' decision in Pitts v. State, 113 S.W.3d 393 (Tex.App. - Houston [1st Dist.] 2003) (requiring trial courts to appoint

counsel in exceptional cases under section 24.016, Tex. Gov't. Code, and that order denying such appointment reviewed by court of appeals for abuse of discretion).

Appellant argues that court of appeals in this case had, at the very least, "limited" jurisdiction to consider the lower

court's denial of his motion seeking appointment of habeas coun

sel, similar to that of a denied motion for appointment of coun sel in a DNA testing request under Chapter 64, Tex. Code Crim.

Proc, Bright v. State, supra, or that of denial of appointment of counsel in an expunction proceeding, Pitts v. State, supra.

GROUND FOR REVIEW 2

Statement of Facts

Having been unexpectedly notified by the court of appeals that he was required to show how the court may have jurisdiction to review the lower court's denial of his motion for habeas counsel, Appellant moved the court of appeals for an extension of time in which to research and prepare a showing to continue the appeal because Appellant was at that time being housed ac cording to the institutional "in-transit" protocol after return to TDCJ-CID following benchwarrant to his county of conviction.

Design and operation of access to courts applicable to pris oners housed in the "in-transit" protocol is such that the pris oner has only limited access to legal materials from the unit law library. That is, the prisoner may request only three items of reference per day. Rather than have the benefit of being permitted to attend the unit law library where legal reference materials are kept and maintained, the "in-transit" prisoner can only request three legal references per day, and those refer ence Items are delivered to him the day following his request, and retrieved by unit law library personnel twenty-four hours later.

These circumstances make it particularly difficult and timeconsuming for the pro se appellant to adequately research appli cable statutory and decisional law - especially in a matter such as this one where the issue at hand is new and rather unset tled or otherwise unclear. In other words, if the court of ap peals, in its vast knowledge and resources, is unsure whether it has jurisdiction to review a given lower court decision, how much moreso for the layman appellant who is proceeding pro se with very limited access to legal reference materials due to the circumstances of his being temporarily housed under the more restrictive "in-transit" protocol. Argument and Authorities

Appellant argues that it was improper and erroneous for the court of appeals to dismiss the appeal for want of juris diction without reviewing the case and itself conducting adequate inquiry into the matter of jurisdiction, given that the matter appears unsettled, and/or without granting Appellant adequate time to further research the matter where, at the time of the court of appeals' May 13, 2015, notice to the parties through the May 26, 2015 deadline set by the court of appeals for the parties to show grounds for continuiing the appeal, Appellant's institutional housing status was that of "in-transit," which provides Appellant limited access to law books and legal refer ence materials.

Moreover, because there has been recent drastic changes in state and federal law relevant to the appointment of counsel .in criminal habeas cases which are sure to make request for habeas counsel in such cases as this one a common and routine matter, the court of appeals should have taken the opportunity presented by this case to sua sponte determine whether it posses ses jurisdiction to review a lower court's denial of requests for appointment of habeas counsel made pursuant to those recent changes in relevant state and federal law.

GROUND FOR REVIEW 3

Statement of Facts

Article 11.074, Tex. Code Crim. Proc. is newly added to the code. Statutory law, at least that available for Appellant to review within the institutional setting, does not expressly indicate exactly what court has jurisdiction to review the denial of a of a request for appointment of counsel made pursuant to Article 11.074. Argument and Authorities

Appellant argues that, similar to denials of appointment of counsel requests made during DNA testing proceedings and expunction proceedings, the court of appeals should possess at least a limited jurisdiction to review denials of appointment of counsel in a proceeding related to a postconviction applica tion for writ of habeas corpus.

10 '

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays the Honorable Court grants discretionary review of the court of appeals' dis position dismissing the appeal for want of jurisdiction. Appel lant prays for general relief.

Respectfully submitted,

L Johnathan Cooper TDCJ No. 1862306 French M. Robertson Unit 12071 FM 3522 Abilene, TX 79601 Appellant, pro se

UNSWORN DECLARATION

I, Johnathan Cooper, TDCJ No. 1862306, being presently incar cerated within the French M. Robertson Unit of the Texas Depart ment of Criminal Justice-Correctional Institutions Division, located in Jones County, Texas, hereby declare under penalty of perjury that the foregoing is true and correct, and placed in the outgoing institutional mailbox on this RSu^ day of Sept ember, 2015, to be mailed U.S. Mail, first-class postage prepaid, addressed to: Court of Criminal Appeals of Texas, P.O. Box 12308, Capitol Station, Austin, Texas 78711-2308. Executed on this the fg£*vday of September, 2015.

johnathan Cooper

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the fore going pleading has been duly served upon opposing counsel by mailing same U.S. Mail, firest-class postage prepaid, addressed to: Debra Windsor, Assistant District Attorney, 401 W. Belknap St., Fort Worth, TX 76102-1913. Executed on this the (Off-?, day of September, 2015.

johnathan Cooper

CAUSE NO. 1031532D

THE STATE OF TEXAS IN THE 297TH

VS DISTRICT COURT OF

JOHNATHAN COOPER TARRANT COUNTY, TEXAS

ORDER ON DEFENDANTS PRO SE MOTION

On this the 7th day ofJuly, 2015, Defendant's Pro Se Motion for RECONSIDERATION OF DEFENDANT MOTION REQUESTING APPOINTMENT OF HABEAS CORPUS COUNSEL was presented to the court. The motion has been considered and said motion is hereby;

(GRANTED) (NO ACTION)

OR Set for hearing beforethis court on the o'clock .m.

_Copy sent to Defendant, Defense attorney and Attorney for the State

on .by

FILED THOMAS A WlUDEapiST. CLERK TARRANT COUNTY. TEXAS JUL 0 8 2015

BY. sail .DEPUTY

Appendix - 14

Court of Appeals Second District of Texas CHIEF JUSTICE CLERK TERRIE LIVINGSTON TIM CURRY CRIMINAL JUSTICE CENTER DEBRA SPISAK 401 W. BELKNAP, SUITE 9000 JUSTICES FORT WORTH, TEXAS 76196-0211 CHIEF STAFF ATTORNEY LEEANNDAUPHINOT LISA M. WEST ANNE GARDNER TEL: (817) 884-1900 SUE WALKER GENERAL COUNSEL BILL MEIER FAX: (817) 884-1932 CLARISSA HODGES LEE GABRIEL BONNIE SUDDERTH www.txcourts.gov/2ndcoa

May 13, 2015

Johnathan Cooper Byrd Unit #1862306 21 FM 247 Huntsville, TX 77320

RE: Court of Appeals Number: 02-15-00145-CR Trial Court Case Number: 1031532D

Style: Johnathan Cooper v.

The State of Texas

The court has received a copy of the notice of appeal in this case. See Tex. R. App. P. 25.2(c).

The court is concerned that it lacks jurisdiction over this appeal because this court has no jurisdiction over matters relating to postconviction applications under article 11.07 of the code of criminal procedure, including requests for appointment of counsel. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2014).

Unless the appellant or any party desiring to continue the appeal files with the court, on or before Tuesday, May 26, 2015, a response showing grounds for continuing the appeal, this appeal may be dismissed for want of jurisdiction. See Tex. R. App. P. 44.3.

Respectfully yours, i

DEBRA SPISAK, CLERK

By: Bonnie Alexander, Deputy Clerk Appendix - 15

02-15-00145-CR May 15, 2015 Page 2

cc: Criminal District Clerk, Tarrant County Tim Curry Criminal Justice Center 401 W. Belknap, 3rd Floor Fort Worth, TX 76196

Court Reporter, 297th District Court Tim Curry Criminal Justice Center 401 W. Belknap St. Fort Worth, TX 76196-0229

David C. Hagerman Judge, 297th District Court Tim Curry Criminal Justice Center 401 W. Belknap, 5th Floor Fort Worth, TX 76196

Debra A. Windsor Assistant District Attorney 401 W. Belknap St. Fort Worth, TX 76102-1913

Appendix - 16

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-15-00145-CR

JOHNATHAN COOPER APPELLANT

V.

THE STATE OF TEXAS STATE

FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1031532D

MEMORANDUM OPINION1

On April 30, 2015, Appellant Johnathan Cooper filed a notice of appeal challenging the trial court's January 28, 2015 order denying his motion for appointment of postconviction habeas counsel. We sent Appellant a letter notifying him of our concern that we lack jurisdiction over this appeal because this court has no jurisdiction over matters relating to postconviction applications

1See Tex. R. App. P. 47.4.

Appendix - 17 under article 11.07 of the code of criminal procedure.2 We indicated that .this appeal could be dismissed absent the filing of a response showing grounds for continuing the appeal. Although we received a response, it does not show grounds for continuing the appeal.

We generally have jurisdiction to consider an appeal by a criminal

defendant only from a judgment of conviction.3 We do not have jurisdiction over a postconviction application for writ of habeas corpus in a felony case, including

a related motion for appointment of counsel.4

Accordingly, we dismiss this appeal for want of jurisdiction.

PER CURIAM

PANEL: DAUPHINOT, GARDNER, and WALKER, J J.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: June 18, 2015

2Tex. Code Crim. Proc. Ann. art. 11.07, § 5 (West 2015). 3See McKown v. State, 915 S.W.2d 160, 161 (Tex. App.—Fort Worth 1996, no pet.).

4Taylor v. State, No. 14-13-00614-CR, 2013 W.L 4816409, at *1 (Tex. App—Houston [14th Dist.] Sept. 10, 2013, no pet.) (mem. op., not designated for publication); Ex parte Wall, No. 02-11-00326-CR, No. 02-11-00517-CR, 2012 WL 5869595, at *9 (Tex. App.—Fort Worth Nov. 21, 2012, no pet.) (mem. op., not designated for publication); see Tex. Code Crim. Proc. Ann. art. 11.07, § 5; Ater v. Eighth \Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (stating that the Texas Court of Criminal Appeals is the "only court with jurisdiction in final post-conviction felony proceedings").

2 Appendix - 18

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-15-00145-CR

Johnathan Cooper § From the 297th District Court

§ of Tarrant County (1031532D) v. § June 18,2015

§ Per Curiam The State of Texas § (nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that the appeal should be dismissed. It is ordered that the appeal is dismissed for want of jurisdiction.

SECOND DISTRICT COURT OF APPEALS

PER CURIAM

Appendix - 19

Court of Appeals Second D i s t r i c t o f Texas CHIEF JUSTICE CLERK TERRIE LIVINGSTON tim curry criminal justice center DEBRA SPISAK 401 w. belknap, suite 9000 JUSTICES fort worth, texas 76196-0211 CHIEF STAFF ATTORNEY LEE ANN DAUPHINOT LISA M. WEST ANNE GARDNER TEL: (817) 884-1900 SUE WALKER GENERAL COUNSEL BILL MEIER FAX: (817) 884-1932 CLARISSA HODGES LEE GABRIEL BONNIE SUDDERTH www.txcourts.gov/2ndcoa

June 1,2015

Johnathan Cooper— Debra A. Windsor Byrd Unit #1862306 Assistant District Attorney 21 FM 247 401 W. Belknap St. Huntsville, TX 77320 Fort Worth, TX 76196-0201 * DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 02-15-00145-CR" Trial Court Case Number: 1031532D

Style: Johnathan Cooper v.

The State of Texas

The pro se's response to our letter dated May 15, 2015, has been filed under the date of Thursday, May 28, 2015, in the above referenced cause.

Respectfully yours,

DEBRA SPISAK, CLERK

By: Karen Brown, Deputy Clerk

Appendix - 20

NO. PD-0895-15

JOHNATHAN COOPER § IN THE COURT OF § vs. § CRIMINAL APPEALS § THE STATE OF TEXAS § AUSTIN, TEXAS

MOTION TO SUSPEND RULE 68.11

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOW, Johnathan Cooper, Appellant, pro se, and respect fully moves the Court to exercise its authority granted by Rule 2, Tex. R. App. Proc, to suspend operation of Rule 68.11, Tex. R. App. P., in this case. In support of this motion, Appellant would show the following:

I. .

1. Appellant is petitioning the Court for discretionary review of the court of appeals' order dismissing the appeal

in Johnathan Cooper v. State of Texas, COA No. 02-15-00145-CR.

2. Rule 68.11 of the Texas Rules of Appellate Procedure,

requires that Appellant serve a copy of the petition upon the State Prosecuting Attorney in addition to the service required by Rule 9.5 of said rules.

3. Appellant, as a prisoner confined within the Texas Department of Criminal Justice-Correctional Institutions Division does not have access to photocopying equipment capable of making multiple copies of the petition for service upon both State's attorneys..

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays the Honorable Court grants this motion and suspends operation of Rule 68.11, Tex. R. App. P., in this case. Appellant prays for general relief.

Respectfully submitted,

^Johnathan Cooper TDCJ No. 1862306 French M. Robertson Unit 12071 FM 3522 Abilene, TX 79601 Appellant, pro se

UNSWORN DECLARATION

I, Johnathan Cooper, TDCJ No. 1862306, being presently incar cerated at the French M. Robertson Unit of the Texas Department of Criminal Justice-Correctional Institutions Division, located in Jones County, Texas, hereby declare under penalty of perjury that the foregoing is true and correct, and placed in the out

going prison mailbox on this \^P-t day of September, 2015, to be mailed U.S. Mail, first-class postage prepaid, addressed

to: Court of Criminal Appeals of Texas, P.O. Box 12308, Austin,

Texas 78711-2308. Executed on this the I$Pq day of September, 2015.

6sLo-- Cj-•^au> ohnathan Cooper

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the fore going document has been duly served upon opposing counsel via U.S. Mail, first-class postage prepaid, addressed to: Debra A. Windsor, Assistant District Attorney, 401 W. Belknap

St., Fort Worth, TX 76196-0201. Executed on this the /S^- day of September, 2015.

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