Mitchell, Birshal Dion

. . . . TRIAL COURT NUMBER: 586939

RECEIVED IN IN THE COURT OF CRIMINAL APPEALS TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS APR 16 2015

BIRSHAL MITCELL RELATOR

vs.

337TH JUDICIAL DISTRICT COURT HARRIS COUNTY, TEXAS RESPEINDE[l.JT This document contains some pages that are of poor quality at the time of imaging. PETITION FOR EXTRAORDINARY RELIEF RE:

IDENTITIY OF PARTIES

BIRSHAL MITCHELL TDCJ-CID #630503 WILLAIM G. McCONNELL UNIT BEE COUNTY, BEEVILLE, TEXAS

337TH JUDICIAL DISTRICT COURT HARRIS COUNTY, HOUSTON, TEXAS

REAL PARTY IN INTEREST

"EB" CLERK IN THE 337TH DISTRICT COURT P. 0. BOX 4651 HOUSTON, TEXAS 77210-4651

IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

IN RE § § § NO: BIRSHAL MITCHELL § Relator, §

MOTION FOR LEAVE TO FILE

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, BIRSHAL MITCHELL, Relator in the Above-Styled and Numbered Cause, and Respectfully presents this, his "Motion For Leave To File"(his enclosed copy of his~''Petition For Extraordinary Relief") pursuant to Tex.R.App.Prod.Roie 72, and ''Requests" that this Honorable Court grant him permission to proceed with the "Petition For Extraordinary Relief~ Submitted on this, /3 day of April, 201 5.

Respectfully Submitted,

:b.~~~- Birsha~M~ator Pro Se TDCJ-CID #630503 William G. McConnell Unit 3001 South Emily Drive Beeville, Texas 78102

Page 1 of 1

INDENTIFICATION OF PARTIES

RESPONDENT 337TH JUDICAL DISTRICT COURT HARRIS COUNTY, HOUSTON, TEXAS PRESIDING JUDGE .

.RESPONDENT "EB" CLERK IN THE 337TH DISTRICT COURT

.RELAToR BIRSHAL MITCHELL, TDCJ-CID #63050'3 CURRENTLY INCARCERATED IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONS INSTITUTIONS DIVISION WILLIAM G. McCONNELL UNIT, BEEVILLE, TEXAS

1IABLE OF CONTENTS

Identification of Parties----------------------------------------~--~----ii _________________________________________________________ ii Table of Contents Table of Authorities----------------~------------------------------------ii State of the Case--------------------------------------------------------- 1 Mandamus Relief Appropriate------------------------------------------------ 2 Mandamus Jurisdiction--~------------------------------------------------- 3 Ministerial Act/Clear Right to Relief Requirement. __________________________ 3

Conclusion----------------------------------------------------------------- 3 Prayer--------------------------------------------------------------------·· 4 Verification 4 TABLE OF AUTHORITIES In re Mata, 212 SW3d 597(Te~.App.-Austin 2006} 2 In re Hewlett Parkard, 212 SW3d 356(Tex.App.-Austin 2006) ___________________,3 Dickens v. Second Ct. App. 727 SW2d 542, 549 .3 State ex rel Hill v. Ct. of App. 5th District, 34 SW3d 924, 927. 3 Stotts v. Wisser, 894 SW2d 366, 367 3 Runtion v. Harmon, 827 SW2d 945, 947 .3 State ex rel Vance v. Routt, 571 SW2d 903, 907. 3

ii

IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

IN RE § § § NO: ____________________ BIRSHAL MITCHELL § Relator, §

PETITION FOR EXTRAORDINARY RELIEF .RE:

(1) MANDAMUS RELIEF TO COMPEL THE TRIAL COURT TO PROPERLY HEAR AND RULE ON RELATOR'S MOTION/REQUEST FOR 11 NUNC PRO TUNC 11 and/or

(2) AN INQUIRY INTO 11 WHY 11 THE COURT CLERK OF ·HJE 337TH JUDICIAL DISTRICT COURT MADE THE FINAL DESPOSITION OF THE MATTER IN FRONT OF THE COURT.

TO THE HONORABLES JUSTICES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, BIRSHAL MITCHELL, Relator P~o Se, in the Above-Styled and

Number.ed Cause, and Respectfully presents this, Relator's 11 PETITION FOR

EXTRAORDINARY RELIEF 11 seeking to institute an original proceeding in this Honorable Court for an issuance of a 11 Writ Of Mandamus 11 and in support of said Petition, Relator hopes to show the Court the following:

STATEMENT 0~ THE CASE

Relator was ar~e~ted and convicted for the Offense of Aggravated Robbery in 1991, and the 337th Judicial District Court Judge gave relator Ten (10)

years 11 Deferred Adjudiciated Probation, 11 this probation lasted until Relator

failed to uphold his part of the probation by failing to report, and comply by the roles established by the Court.

Relator was revoked, and given a Twenty (20) year sentence, and was remanded to the Texas Department of Criminal Justice - Institutional Division, this sentence began upon the Court revoking Relator's probatioonin 1998, and TDC

Page 1 of 4 received Relator in 1999, having served 421 days,(1 yr., 1mo., 26:days) in the county jail. Relator was in the custody of TDC for 4 years, 3 months and 18 days before being paroled on October 20th 2003, having completed a total of 5 years, 5 months and 14 days of the Twenty (20) year sentence.

On or about.October 20th 2011, Relator was charged with another offense and ·Relator's parole was revoked. Relator had completed 8 years and 6 days on the street totals his Twenty (20) year sentence, combined with what he had completed flat, Relator had done 17 years, 9 months, and 25 days.

Relator has been denied his street time by TDC & the BPP due t6 their retroactive application of Government Cod~ §§508.149(a) & 508.283, both of these Sections were "Enacted" on September 1st, 1997, the fact that Relator violated his probation in 1998, came to TDC in 1999, the original offense date was January 1991, so the law in effect at the time of tQe offense is in fact the law that governs the sentence.

Relator filed with the trial Court on Ma~ch 3rd 2015 a Motion For Judgment Nunc Pro Tunc, hoping that the sentencing Court would order TDC & BPP to correct the sentence to reflect the B. plus ,years that Relator did on the stree under direct supervision of the Parole Commission.

On April 2nd 2015~ the Motion sent to the Court was Denied, but it is

clear~y apparent that it wasn't the Court that denied it, but in fact the Clerk I

in the 337th Court itself,(See Attached Exhibit "A"). It appears from the I I Exhibit attached, that ''EB" Clerk in the 337 District Court signed off on the

document instead of the Judge of the Court.

MANDAMUS RELIEF APPROPRIATE I

Mandamus relief is available only if a trial court clearly abuses it's discretion, and Relator can show that he has no adequate lremedy by appeal. In re MATA. 212 SW3d 597(Tex.Apo.-Austin 2006); InrreLEWiN 149 SW3d 727(Tex.

Page 2 of 4

.. App. -Austin 2004) ; In re HEWLETT PARKARD 212 SW3d 356 (Tex. App >Austin 2006) .

In the instant case Relator shows by the attached exhibit that not o~ly

did the trial fail ~o sign off on, and enter an order of denial, the Court

allowed the Court's Clerk to do it, thus making a Writ of Mandamus necessary

to correct the defect of the Court's "non-action" in Relator's case.

MANDAMUS JURISDICTION

Mandamus is an Extraordinary Writ and it's issuance isn't a matter of Law

or Right, but rests in the sound discretion of the Court. DICKENS v~ SECOND CT.

OF APPEALS, 727 SW2d 542, .549. To be entitled to Mandamus Relief, Relator ~ust

conclusively establish two requirements; 1) There must be no other adequate

remedy; and 2) Under the relevant facts and law, the act sought to be compelled

is purely ministerial. See STATE ex rel. HILLV. CT~ OF APPEALS FOR THE 5TH-

DISTRICT. 34 SW3d 924; 927; STOTTS V. WISSER, 894 SW2d 366, 367; RUNTION v~

HARMON, 827 SW2d 945, 947; STATE ex rel. VANCE if. ROUTT, 571 SW2d 903, 907.

Based upon legal requirements Relator will show.

MINISTERIAL ACT/CLEA~ RIGHT TO RELIEF REQUIREMENt

Relator submits that based on the attached Exhibit, Relator hopes that he

is entitled. to some relief by this Court. The relief sought herein is simply

an order to the 337th Judicial District Court to review the Motion Relator has

before it, and rule on it as Relator had sought in the first place, instead of

the Court allowing it's in Court Clerk to sign off on, as the Exhibit clearly

indicates.

CONCLUSION

Relator has tried to present to this Court the facts of his case, and I claim. All Relator is trying to seek is the proper procedure of the Court to

hear a Motion, Rule on the Motion, and Enter an Order on the Motion, signed by

the Presiding Judge. Relator relies solely on this Court for relief sought,

and a correction of the "Clerk's" & "Court's" abuse of discretion.

Page 3 of 4

. ' PRAYER

WHEREFORE, PREMISE CONSIDERED, Birshal Mitchell, Relator in the Above-

Entitled and Numbered Cause, Respectfully Prays that this Honorable Court will

"GRANT" such relief to which Relator might be entitled. So Moved and Prayed

that this "Petition For Extraordinary Relief" be "GRANTED'! Relator further

Prays for such relief, General or Special at Law or Equity, which this Honorable

Court might deem Just, Proper, and Eq~itable.

Executed on this, /~ day of April, 2015.

Respectfully Submitted,

(f~~ BirSh81Mithell,R8l8tOI'PI'O TDCJ-CID #630503 William G. McConnell Unit 3001 South Emily Drive Beeville, Texas 78102

VERIFICATION

I, Birshal Mitchell, TDCJ-CID #630503, being incarcerated at the William

G. McConnell Unit, Bee County, Beeville, Texas, declare under penalty of perjury

that I am the Relator in the above and foregoing document. I have read and

understand said document, and the Factual allegations of same and find that

they are True and Correct to the best of my knowledge.

Executed on this,/~ day od April, 2015.

Birshal Mltchell, Relator Pro Se TDCJ-CID # 630503

Page 4 of 4 j ,

CHRIS DANIEL HARRIS COUNTY DISTRICT CLERK Direct Dial Line:

BIRSHAL MITCHELL TDC NO. 630503 MCCONNEL UNIT 30018. EMILY DR. BEEVILE TEXAS 78102

Memonmdur.;. :·esponse t~ correspondence.re(,',eived: 03/2~/.~!tl~

Re: Cause No(s) 586939.

Dear BIRSHAL MITCHELL,

~ Your motion/request NUNC PRO TUNC was filed with the District Clerk and on 337 · the Court: l D Took no action [gl Denied your Motion/Request D Granted your motion/request

D Took action D Advised atton.ey of record D Other

D Other:

P.O. Box 465 I • HOUSTON, TEXAS 772 I 0-465 I • (7 I 3) 755-5749