Hines, Joseph Barnard

This document contains some pages that are of poor quality DATE MAY 8,2015 at the time of imaging.

RE: MG:riON .FOR LEAVE 'T'O FILE WRIT OF MANDAMTTS AND WRIT OF MANDAMTT.S IN TRIAL CAUSE N0.776435-R.

DEAR CLERK I

CAN YOU PLEASE FILE THIS DOCUMENTS AND PRESENT THEM TO THE r.oUR~ FOR THEIR CONSTDERATION. ALSO I HAVE PLACRD A STAMPED ENVELOPE WITH THIS LETTER rAN YOIJ PLEASE TN- FORM ME OF THE DA~E YOU REr.EIVE AND.FILE SAID D()('IJMENTS. THAJ\TT:( YOIJ. r..r..F.

R. HINES :11:901768-r.ONNALLY TTNT'l' RE:CEf\IEO IN ggq FM 632 COURT OF CRIMINAL APPEALS KENEDY,'PX.78lJq

MAY 112015

Abe~ Acosta, Clark

TRIAL C.AUSE N0.776435-B

JOSEPH BARNARD HINES, § RELATOR v. § IN THE COTTRT OF CRIMINAL Ali>.P.ElU.$_ . I' 'E ..:..;ctv DIN CHRIS DANIEL,HARRIS COUNTY DISTRC.IT cnr lf:?T OF CRIMI . NAL APPEALS · CLF.RK, RESPONDENT MAY 112015

MOTION FOR LEAVE TO FILE·WRIT OF MANDAMUS Abel Acosta, CD®rrk TO THE HONORABLE JUDGEfS)· OF' SAID C.OIJRT:

c.omes now, Joseph Barnard Hines. Rel;:lf-or, in pro se. a.nd files thi~ motion for leave to file writ of m~ndamus ~nd reg~est for such. m~ tion to b~ granted as Relator will show as follo~~:

I. Relator filed his application for writ of habeas corp11s with the Harris County district clerks office on·3/,~/15 and was assiqnea the above cause: number. The -~tate issued ·it's orininal answer· on 4/2/l"i .. see .. F.X-A rsTA'l'E'sORIGINAf. ANSWRRl. Th·:::l !':rial t::!O.urt fil~d it'.s fact findincg~ of con•::lusion o-~=· iaw 0n Ll/9/15, .'!:;e.=. F.E'f<-B r TRB.:S COURT FACT FINDING OF C0NCLUSIGN OF LAW.]. Contained inside of the trial courts· ORDER is instructions for the district clerk to forward all document to the court of crim- inal ~oneals.see.EX-R. Relator has exhausted his r~medies and has no other adequate remedy·. at and the act se>uaht t0 be comnelled is ministerial.not discretionarv in nature.T.c. . . r.P. art.ll.n7 sec.1 (c) •

PRAYER FOR RELIEF'

WHEREFORE,Relator respectfully prays the Court'grants his motion for leave for writ of mandamus and comoel Resoonnent to immedi- atelv transmit the application for writ of habeas corous.memoran- dllm.exhibits,anv answer filed,and a certificate reciting the date received. executed on 5/7/15

CERTIFICATE OF SERVICE

!,JOSEPH BARNARD HINES, HERERY CER'l'IFY THAT A TRTTR AND CORRECT C'OPY OF THIS MOTION FOR L-EAVE 'T'O FILE WR TT OF MANDAMUS WITH WRIT OF MANDAMUS ATTACHED WAS MAILED BY rT.S.P.S. 'T'O~THE CLERK OF THE COURT OF CRIMINAL APPEALS :at-P·. 0 ~ BOX 12308, C'APTTOT. S'T'ATION. AUSTTN.TEXAS 78711 and the same was mailed bv Il.~.P.S. 'l'O~THE

CLERK OF HARRIS COUNTY at~P.O.ROX 4651 .HOTTSTON.TEXAS 77210-4n.Sl on 5/8/15. ex~cuted on 5/7/15.

OSEPH BARNARD HINES #901768-CONNALLY UNIT 99q FM 632 KENEDY.TEXAS 78119

TRIAL CAIJSE·N0.776435-B

JOSEPH BARNARD HINES, RELATOR.

v. {) IN·THE COURT OF CRIMINAL APPEALS

CHRIS DANIEL.DISTRICT CLERK OF HARRIS COUNTY I

RESPONDENT

PROPOSED ORDER

on this day,came on to be heard the foreaoiona Relator's motion for leave to file writ of mandamus and it aooears to the court that the same should be~

GRANTED

IT IS THEREFORE ORDERED:that the district clerk of Harris Countv shall imm- ediately transmit to the court of criminal appeals documents filed under the above cause dealina with the writ of habeas corous.

sir.NED on this ----------------day of------~------- ,20-----

PRESIDING JUDGE

TRTAL CAUSE N0.776435-B

JOSEPH BARNARD HINES, § IN THE !80th JUDICIAL RELATOR § v. § DISTRICT. COURT OF CHRIS DANIEL,HARRIS COUNTY § HARRIS COUNTY,TEXAS DISTRICT ,IN HIS OFFICIAL CAPACITY,-RESPONDENT §

ORIGINAL APPLICATION FOR WRIT OF MANDAMTTS

TO THE HONORABLE JUDGE(S) OF SAID COURT OF CRIMINAL APPEALS:

Comes now,JOSEPH BARNARD'HINES.Relator,in oro se,·in the above- stvled and numbered cause of action and.files this original app- ··:· lication fbr writ of mandamus.oursuant to article 11.07 section 3 (c) of the T~x~s Code of Crimirial Procedure,and would show the court the following:

I. Relator is an offender incarcerated in the TEXAS DEPARTMENT OF CRIMINAL JUSTICE,who can be located at 89q FM 632 KENEDY.TX.78119

II. Relator has exhausted his remedies and has no other adeauate remedy at law,and the act souaht to be compelled is ministerial, not disc.retionary in nature. T.C.C.P. art. 11.07 sec.3(c) requireS Resoondent to immediately transmit to the COIJRT OF CRIMINAL APP~

EALS a cooy of the apol·ication for writ of habeas corpus, any ans- _wer filed,and a certificate reciting the date uoon which that findina was made,if the convictina court decides that there are no issues to be resolved.· Relator contends that the district attorney filed it's oriainal answer on 4/2/lS.see,F.X-A[STATES ORIGINAL ANSWERl,and the trial court. filed it's fact findinq and conclusion of law on 4/9/lS.see,EX-B [TRIAL COURT FACT FINDING AND CONCLUSION OF LAWl. Had the documents been transmitted to the COURT OF CRIMINAL APP~

EALS by Resoondent.as reauired by statute,Relator· would have re- ceived notice from the COURT OF CRIMINAL APPEALS. Relator also wrote two letters to the c.c.a. reQuestinq if it has received

such documents and the court clerk stated that it·had not.see.EX-C [RELATOR LETTERS TO C.C.A. Lalso EX-ErCOURT OF CRIM.APPEALS RESPONSEl •

III.· Respondent in his official capacity as district clerk of Harris County,Texas has a ministerial dutv' to rec~ive and file all pape~

in a criminal proceeding.,and perform· all: other duties imposed on the clerk bv law pursuant to ~.c.c.P. art. 2.2l,arid is resoonsi- hle under T.c.r..p. 11.07 sec ..1(c) to immediately transmit to the C0URT OF CRIMINAL APPEALS a copy of .the application for writ of habeas corpus,any answers filed,and a certificate reciting the dat• uoon which that findina was made. if the convicting court de- cide~ that there are no issues to be resolved. Respondent .of Harris Countv may be served at his ·place of business at:l201 FRANKLIN~P.O.BOX 465l,HOUSTON,TEXAS 77210-4651.

IV. Relator request for the transmittal of the apolication for writ of .habeas corpus with mem~randum,exhibits,any answers filed. Re- lator has also attached· to t~~s oriainal writ. of mandamus a copy of the writ of habeas corpus,memorandum,exhibits.states oriainal answer and district court fact findina and conclusion of law.see. EX-D[APPLICATION OF WRIT OF HABEAS CORPUS,MEMORANDUM.AND EXHIBIT~,Z

EX-A[STATE'S ORIGINAL ANSWER],EX-B[DISTRICT COURT FAr.T FINDING AND CONCLUSIO~ . . OF LAW] PRAYER FOR 'RELIEF WHEREFORE,PREMISES CONSIDERED,Relator respectfully r•auest a finding that the Respondent did not transmit documents to the COURT OF CRIMINAL APPEALS. Rela'tor orays for an ORnER directinq Respondent to tranmit the apolication for writ of habeas corpus. memorandum,exhibits,any answers filed.and a certificate reciting the date upon which that finding was made to the COURT OF CRIMINAL APPEALS.

CERTIFICATE OF SERVICE !.JOSEPH BARNARD HINES,HERERY CERTIFY THAT THIS ORIGINAL APPLI- ~ATION OF WRIT OF MANDAMUS WITH ALL EXHIBITS MENTION WAS MAILED BY U.S.P.S. TO~THE CLERK OF THE COURT OF CRIMINAL APPEALS AT P.O.BOX 12308,CAPITOL STATION~AUSTIN.TEXAS 787ll.and the same was mailed by U.S.P.S TO:CHRIS DANIEL-HARR~S COUNTY DISTRICT CLERK AT P.O.BOX 465l,HOHSTON,TEXAS 77210-4651 on S/8/15. executed on5/7/15.

TRIAL CAUSE N0.776435-B

AFFIDAVIT

!,JOSEPH BARNARD HINES.SWEAR UNDER OATH-THAT THE FACTS AND AL- LEGATIONS IN THE ABOVE APPLICATION FOR MANDAMUS ARE TRTTE AND CORRECT.

UNSWORN DECL I.~OSEPH BARNARD. HINES, IS .PRESENTLY INCARCERATED IN T.D.C.J.-ID ..It-~"

AT THE CONNALLY UN[T,AND SWEAR UNDER THE PENALTY OF PERJURY THAT THIS STATEMENT IS TRUE AND CORRECT~

TRIAL CAUSE N0.776435-B

J OS EP H BARNARD HINES I § IN THE 180th JUDICIAL RELATOR v. § DISTRICT COURT OF CHRIS DANIEL,DISTRICT CLERK, RESPONDENT HARRIS COUNTY, TEXAS

PURPOSE ORDER

On this day,came on to be heard the' foregoina Relator's ori~

ginal application of ·writ of mandamus and it apoealrs to the Coucl' that the s~me should be:

GRANTED

IT IS THEREFORE ORDERED that the distric~·clerk shall immedi- ately transmit to the COURT OF CRIMINAL APPEALS a cony of the application for vrit of habeas cornu~,memorandum,exhibits.any

answers,and a certificate reciting the date uoon which that tran~ mittal was made. SIGNED on this ------day of ------~-------- ,20

PRESIDING JUDGE

NO. 776435-B

EX PARTE § IN THE 180m DISTRICT COURT

§ OF JOSEPH BARNARD HINES, Applicant § HARRIS COUNTY, TEXAS

STATE'S ORIGINAL ANSWER

The State of Texas, through its Assistant District Attorney for Harris County, files this, its original answer in the above-captioned cause, having been served with an application for writ of habeas corpus pursuant to TEX. CRIM. PROC. CODE ANN. art. 11.07 § 3 (West 2013), and would show the following:

I. The applicant is confmed. pursuant to the judgment and sentence of the I 80th

District Court of Harris County, Texas, in cause number 776435 (the primary case), where on November 1, 1999, the applicant was convicted pursuant to a plea of guilty for the felony offense of aggravated robbery. The court, in agreement with the plea agreement, assessed punishment at fifteen (15) years confmement in the Texas ·Department of Criminal Justice- Institutional Division (TCDJ-ID).

The Fourteenth Court of Appeals dismissed the applicant's appeal in the primary case on January 4, 2001 for lack of jurisdiction. Hines v. State, No. 14-00-01014-CR, 2001 WL 8322 (Tex. App.-Houston [14th Dist.], no pet.)(mem. op., not designated for publication).

The applicant's initial application for writ of habeas corpus, cause number 776435-A, was denied on August 25, 2004. Ex Parte Hines, WR-55,762-02 (Tex. Crim. App. 2004).

II.

The State denies the factual allegations made in the instant application, except those supported by official court records, and offers the following additional reply:

REPLY TO APPLICANT'S SOLE GROUND FOR RELIEF

In the applicant's sole ground for relief the applicant alleges that the juvenile court abused its discretion by transferring the applicant to the state criminal court. Applicant's Writ at 6.

However, if a subsequent writ application is filed after fmal disposition of an initial application challenging the same conviction, the Court may not consider the merits of or grant relief based on a subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims have not been and could not have been presented previously in an original or in a previously considered application because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or (2) by a preponderance of the evidence, but for a violation of the United States· Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.

TEX. CRIM. PROC. CODE ANN. art. 11.07 § 4 (a) (West 2013).

The instant writ application was filed after the final disposition of the *3 applicant's initial writ application, cause number 776435-A, which challenged the same conviction and was denied on August 25, 2004. In this application, the applicant has failed to include sufficient specific facts establishing that the current claims could not have been presented previously because the factual or legal basis for the claim was unavailable; or that, by a preponderance of the evidence, no rational juror could have found the applicant guilty beyond a reasonable doubt. TEX. CODE CRIM. PROC. ANN. art. 11.07 § 4 (a) (West 2013). Therefore, the Court may not consider the merits of or grant relief based on the instant writ of habeas corpus.

m. The applicant raises questions of law and fact that can be resolved by the

. Court of Criminal Appeals upon review of official court records and without need for an evidentiary hearing. *4 ·-

IV.

Service has been accomplished by sending a copy of this instrument to the

following address:

Joseph Barnard Hines . TDCJ # 901768- Connally Unit 899FM632 Kenedy, Texas 78119

SIGNED this 2nd day of April, 2015.

va lores ssistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-6657 Texas Bar I.D. #24059760

Prepared by: Joshua Redelman - Intern

Certificate of Compliance as Required by Tex. R. App. 73.1(0

The State of Texas, through its Assistant District Attorney for Harris County, files this, its Certificate of Compliance in the above-captioned cause, having been served with an application for writ of habeas corpus pursuant to TEX. CRIM. PROC. CODE ANN. art. 11.07 § 3 (West 2013). The State certifies that the number of words in the State's Answer is 692.

CHRIS DANIEL HARRIS COUNTY DISTRICT CLERK

April 10, 2015

JOSEPH BARNARD HINES #901768 CONNALLY UNIT 899 FM 632 KENEDY, TEXAS 78119

To Whom It May Conc~m:

Pursuant to Article 11.07 of the Texas Code of Criminal Procedure, please find enclosed copies of the documents indicated below concerning the Post Conviction W!it filed in cause number 776435-B in the 180th District Court. ·

D State's Original Answer Filed D Affidavit D Court Order Dated D Respondent's Proposed Order Designating Issues and Order For Filing Affidavit. ~ Respondent's Proposed Findings of Fact and Order April9, 2015 D Other Enclosure(s)- STATE'S PROPOSED FINDINGS OF FACT AND ORDER

·•'· .:,.'·:

1201 F~ANKLIN • P.O. Box 4651 • HousTON, TEXAS 77210-4651 • (888) 545-5577 PAGE I OF I REV: 01-02-04 .. ; . .

EX PARTE

§ OF JOSEPH BARNARD HINES, Applicant § HARRIS COUNTY, TE)\AS

STATE'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

The Court has considered the application for writ of habeas corpus, the State's

answer and official court records in the above-captioned cause. The Court finds that

there are no controverted, previously unresolved facts material to the legality of the

applicant's confmement which require an evidentiary hearing and recommends that

the instant writ, cause number 776435-B, be dismissed because the applicant has

failed to include sufficit:mt specific facts establishing that the current claims could

not have been presented previously because the factual or legal basis for the claim

was unavailable; or that, by a preponderance of the evidence, but for a violation of

the United States Constitution, no rational juror could have found the applicant

guilty beyond a reasonable doubt. TEX. CRIM. PROC. CODE ANN. art. 11.07 § 4(a)

(West 2013).

THE CLERK IS ORDERED to prepare a transcript and transmit same to the Court of Criminal Appeals as provided by TEx. CRIM. PROC. CODE ANN. art. 11.07 (West 2013). The transcript shall include certified copies of the following documents:

1. The application for writ of habeas corpus;

2. The State's answer;

3. The Court's order;

4. The indictment, judgment and sentence, and docket sheets in cause number 776435;

5. The Court's Findings of Fact and Conclusions of Law; and

6. The State's and Applicant's Proposed Findings of Fact and Conclusions of Law (ifany).

THE CLERK is further ORDERED to send a copy of this order to the applicant, Joseph Barn~d Hines, TDCJ # 901768 - Connally Unit, Kenedy, Texas, 78119; and to counsel for the State, Eva Flores, 1201 Franklin, Suite 600, Houston, Texas 77002.

By the follo":'ing signature, the Court adopts The State's Proposed Findings of Fact, Conclusions of Law and Order in cause no. 776435-B.

lit ' , ' ,

NO. 776435-B

EX PARTE § IN THE 180TH DISTRICT COURT

§ OF JOSEPH BARNARD HINES, Applicant § HARRIS COUNTY, TEXAS

CERTIFICATE OF SERVICE

The undersigned counsel certifies that I have served a copy of the State's

Proposed Findings of Fact, Conclusions of Law, and Order in cause number

776435-B to the applicant on April2, 2015, by mail as follows:

Joseph Barnard Hines TDCJ # 901768- Connally Unit 899FM632 Kenedy, Texas 78119

E a Fl res A~~t District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 -~-~~~~,;&~ (713) 755-6657 ...... ·-li!if71;;··i.~7.)uni~~-,.r;~~l.7,:'····· ""'" (713) 755-5240 Texas Bar I.D. #24059760

Prepared by: Joshua Redelman - Intern

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CL~~ . COURT OF CRIMINAL APPEALS P.O. BOX 1.2308-CAPI'l'OL S'l'ATION AUSTIN,•rx. 7B7ll

APRIL 21,2015 RE:

CLERK, CAN YOU PLEASE INFOH!'l JVl.E U' YOUR OE'FICE HAS RECIE'iED NY APPLICl\T.IOAI FOR ·WRIT OF HABEAS OORPUS FRO.li'J TEll!: DISTRIC'l' COUR'l' OF tiARfW:l' COUN::C~? I L~ _,-

THANK YOU. _/j, ;;? L

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JO.S!:~PH :3P.f!.Nl\...qD H.T.NES .#901768~CONNALLY UNIT 89:,1 E'l'i 632 KENED:t, TEXAS 7!3.!..19

CLEr."U< \' COOR'l' --oF CRIMINAL APPEALS P.O~BOX 12:!08-cAPI'l'OL S'l'AT!Ol'l AUSTIN,'l'X. 78711

APRIL 3~,2015

RE: WRIT Oft' HABEAS C.'Of{PUS IN 'l'RIAL CAUSE NO. 776435·-B

Im wcitting in conce-rn of t."lo in t;ha above tt·ial cau."Je tnat. .I wa~ ~n:it inform by the district coUt·t that it was sent to :rour office .. I wrote a latter too your officer concerning this mattT.tr on April 21,2.015,but I didn't receive a r~sp-..>n.se:••

This requs::rt is in no at.t.3mpt to rush yow.~ officer, I'm JUSt di:q.gent sseking my rights,so can you pl-;.>ase inform ma i i }'Our oific~ha~::~_ r-cceivc.d aaia writ of habeas corl:)us and memorandum? Than.k you for your time l.n cni.s mat:cer. c.c .. i.

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-JOSEHi, B.ill~Jhr::D i:i.IUES #901768-CCNNALLY [J~U'l' 899 t""£1 632 :CENEDY ,-r:x. 7t.;llJ

CHRIS DANIEL-DISTRICT CL~ OR 1.-W~IS C:OGN'l'Y P.O.BOXX 4651 HGUSTON,TXo77210-4651 APRIL 30,2015

RE: IN WRI:r 01!' HABEAS CORPUS/'l'RIAL C\USE L'JO. 776435-B ·

CLERK; Can you plaasa infot-m 1113 if zOUt: office has to1.--warded the wt"it o:t habeas corpus fi,i.e in the abovs cri~l caus~ nuwbur'?'.i'O ·raE COtfKT OF CRININAL APPEALS'?

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.·.\·; . COURT OF CRIMINAL APPEALS OF TEXAS ~< APPLICATION FOR A WRIT OF HABEAS CORPUS . SEEKING RELIEF FROM FINAL FELONY CONVICTION ··.·,UNhER ... CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

lNSTRUCTIONS

1. You must usc the complete form, which begins on the following page, to file an application for a writ of habeas co•·pus seeking t·clief from a final felony conviction under Article 11.07 of the Code of Criminal Pwccdurc. (This form is notfor death- penalty cases, probated sentences which ha\'e not been revoked, or misdemeanors.)·

2. The district clerk of the county in which you were convicted '"ill make this form available to you,on request, without charge.

3. You must file the entire writ application fonu, including those ~ections that do not apply to you. If any pages are missing from the form, or if the questions have been renumbered or omitted, your entire application may be dismissed as non-compliant.

4. Vou must make a separate application on a separate fonn for each judgment of conviction you seek relief from. Even if the judgments were. entered iit the same court on the same day, you must make a !i.eparate application for each one.

5. Answer every item that applies to you on the form. Do not attach any additional pages for any item.

6. You must include all grounds for relief on the application form as provided by tht~ instmctions under item 17. You must also briefly sum1i1arize the facts of your claim on the application form as provided by the instn1ctions under item 17. Each ground ·shall begin on a new page~ and the- recitation of the facts supp-orting the ground shall be no longer th<tn the two pages provided for tlie claim in the form.

7. Legal citations and arguments may be made in a separate memorandum that complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not.

8. You must verify the application by signing either the Oath Before :\otary Public or the Inmate's Declaration, which. arc at the end. of this"form on pages 11 and 12. You may be prosecuted and convicted for aggravated perjury if you make any false statement of a material fact in this application.

9. \\'hen the applicati()n is fully completed, mail the original to the districtderk of the county of t:onviction. Keep a copy of the application for your· records.

10. You must notify the district clcr·k of the county of conviction of any change in address afte1· you have filed your application.

Rev. 01/l4il4 . .t ......

Case No. _ _ _ _ _ __ (The Clerk of the convicting court wi11 fill this line in.)

IN THE COD"'RT OF CRIMINAL APPEALS OF TEXAS

APPLICATION FOR A WRIT OF HAB.EAS CORPUS SEEKING RELIEF FROM. FINAL FELONY CONVlCTfON UNDER COUE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME: JOSEPH BA!~NARD HINBS

DATE OF BIRTH;MAR--'-C,.-H_2_6...:..'=.19:...;8::.:1::......:...---------~------,--- PLACE OF CONFINEMENT:'IEXAS I:EPARlMENl' tF CRIM.INr;L JlBl'ICE

TDCJ-ClD NUMBER: 911 _.'l68 _ _ _ _ _ __ SID N U M B E R : - - - - - - - -

(1) This. application concerns (check all that apply):

Xu a conviction 0 parole.

0 a sentence 0 mandatory supervision

0 time credit 0 out-of-time appeal or petition for discretionary review

(2) What d.istrict cotu1: entered the jud.gmcnt of tbc conviction you want relief from? Onclude the court number and coumy.)

(3} \Vhat was the case number in the trial court?

'PS435

(4) \Vhat was the name of the trial judge?

0EBBIE M. S'rRICKLIN

EVIDENTIARY HEARING REQUESTED

Effective: Januarv 1, 2014

Rev. 0 !11 4/J 4 ' ,l • 4

(5) Were you represented by counsel'! If yes, provide the attorney's name:

CHARLES A. BROWN

(6) What was Cbe date that the judgment was entered'?

I 1- \ -Ci') .

(7) For what offense were you con~icted and what was the sentenc.e?

AC~RAVATED BQBBERY- FIFTEEN YEARS

(8) If y<w \Verc sentenced on more th~n one count of an indictment in the same court at .the same time~ what counts were you convicted of.and what was the.sentence in each count?

(9) What ~as the plea you entered? (Check one,)

0 guilty-open plea ex guilty-plea bargain 0 not guilty · . C n.olo coltteudere!no contest

lf you entered different pleas to counts in amulti-count indictment, please explain:

(10) ·what kind oftrial did you have'!

0 no jury C jUI·y for guilt and punishment C jury for guilt~judge for punishment

Rev. 01/14114 (ll) Did you testify at trial? If yes, at what phase of the trial did you testify? (12) Did you 3flpeal from the judginent Of convictiotJ?

XO yes 0 no

If you did appeal, answer the following questions:

(A) What court of appeals did you appeal to? 14th o::m;r CF .~ 14-<X>-0101~ (B) What was the case number'!

(C) Were you represented. by counsel on appeal? If yes, provide the attorney's name:

(0) What was the decision and the date of the decision·~ !-4-01 ( 13) Did yoi.t file a petition for discretionary review in the Coua·t of Criminal Appeals?

0 yes 2tJ no

If you did file a petition for discretionary review, answer the following questions:

(A) What was the case number?

(B) What was the decision and the date of the decision?

(14) Have you previously filed an application for a writ ofhabeas corpus under Article 11.07 of the Texas Code of Criminal Procedure challenging tliis C(JnvictiOii?

XJ yes 0 no

If you.answered yes, ans·wer the following questions:

(A) What was the Coul"t of Criminal Appeals' v.·rit number? 55,762-02

Rev. Ol/l4il4

(B} What was the decision and the date of the decision? I:ENil!D wrmr l'iUT.lEN CHl!R CN 8-25-04 (C) Please identify the reason that the current claims 'wre not presented and c,ould not have been presented on your previous application.

JW WID l.IJl' HAVE ~ ~, KlM.J.l:.miD EI01 A FINAL Cl'Y::ISICW CF A a.l.RI' CF AEHLI.A1E ..JUUS)l'C'ffa~[MXI~ v. - 4 1 0 s.w. 3:i 300('IEX.Af?P.-4nBI!J\I[lst ci.isc~] a:u.3,AW'D_S.W. 3:l_,2Dl4 tex. crim. at:P•l.elc.is 1918,4>14 WL f:f1:1lYiO ] CE' '!HIS srAlE CN CR IHtRE 'B FILIN:; CE' CRliiiNAL HA8E'AS a:m...B. lAO::: M.5J, a:N91'11Ul'ICNAL, ~ CF a:;!(. CF JIBISDICI!IGMF 'lHE wriED SlruliS •

(15) l)o you currently have any petition or appeal pending in any other state or federal court'!

0 yes

If you answered yes, please provide the name of the court and the. case number:

(16) lf you are presenting a claim for time credit, have you exhausted your administrative remedies by presenting your claim to the time credit resolution system of the Texas Department of Criminal Justice? (This requirement applies to any final felony conviction. including state jail felonies)

0 yes 0 no WA If you answered. yes, answer the following questions:

(A} What date did you present the claim'? ~"'---......;.......-----.,..-------

(B) Did you receive a decision and, if yes. what was the date of the decision'?

~A·--------------------------~--------------------~ If you answcr·cd no, please explain why ~'OU have not submitted your claim:

Rev. 01/14/ i 4

(17) Beginning on page 6, state concisely every legal ground. for your claim that you arc being unlawfully re~trained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a brief summary of the facts. lfJ'OUr grormds and briefsttmmary~ l~(thefacts ltflve not been presented on the fl1rm application:. tlte Court willtwt consider yt)Ur grounds. If you have mote than four grounds, use pages 14 and 15 of the form, which you may copy as many times as nee--ded to give you a separate page for each ground, '"'ith each ground numbered in sequence. The recitation of the facts supporting each ground must be no longer than the two pages provided for the ground in the fm·m.

You may include with the form a memorandum of law if you want to present legal authorities, but the Court l\'ill not consider grounds for relief set out in a memorandum oflaw that were not raised on the forni .The citations and argument inust he in a memorandum that complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated. or 50 pages if not. If you arc challenging the validity of your c()nviction, please include a summary ofthe facts pertaining to your offense and trial in your memorandum.

Rev. 01/14/14

GROUND ON~ JU'II.EN[JE Ol.Rl' ABl3ED IT'S~ BY Wi'U.V'lW IT'S JWL.'DICI?JX:.N PW ~ .Al?PLICANl' 'ID A CRIMINAL <D.Rr; WI:I~ 'll£ QUMIN!\L aJ..Rl' ua<ED JUU:SJICI'I.CN

OJER AR?LICANl' ~ 'llE 'lRAN:HR <REa MAlE N:> .FIN:>JN:iS AEW.i.' 'liE ~ CF 'J.Ht: .AU:aE) ~ AAl!t>LICAN'f IS BEii-IG iJ.i:;tHED HIS CONS1'l'I'U'£IONAL RIGHT Of:' om:; PROCBSS GUAf<.ANTEE BY Tf!E; 14t.h AMENDMENT OF THE UNITED .STA'l'ES.

FACTS SlJPPORTING GROUND ONE: 'liE ..iJvEND:E o:l.RI' DID NOT SPECIFICALLY ST~TE IT'S REASONS ~""'OR WAIVER AND

CER'I'IFY IT'S ACTION IN Stili W.RIIJ'I'TEN ORDER AND THE FINDINGS OF THE COURT. THE JUVENILE COUR'l' .MERELY FILLED OUT A FORM CERTIFICATION ORDER CONTAINING "BOILERPLATE" LANGUAGE AND DID NO!' INCLUDE SPECIFIC EVIDEN'l'IARY .rnNDINGS TO SUPPORT IT'S DETERMINATIONS.see,EX-B[ORDER WAIVING JURISDIC'I'IOl~]. -I'HE ONLY REASON SPECIFICALLY SWED IN THE ORDER WAIVING JURISDIC'l'ION TO JUSTIFY THE viAIVER OF JURISDICTION WAS THAT THE OFFENSE ALLEGED WAS A SERIOUS ONE,AND THE ONLY FAc:r SPECIFIED IN SUPPORT OF 'l'HIS REASlSIN WAS THAT THE OFFENSE ALLEGED WAS

------·---------------------------- COMMIT!'ED AGAINST A PERSON.see,EX-B[ORDER WAIVING JURISDIC'!'ION]. FUR'l'fiEf<l.lORE,THBRE WAS NO EVIDENCE TO FIND PROBABLE CAUSE THAT APPLICANT

CJMMIT'l'ED THE ALLEGED OFFENSE.,AND NO FINDINGS SPECIFICALLY STA:I'ED IN THE TRANSFER ORDER.see,EX-B[ORDER WAIVING JURISDICTION].

Rev. Ol/l4r14 7

Rev. 0 J ! 14/14

I GROUND TWO: FACTS SUPPORTING GROUND TWO:

Rev. 0 l /14; J -l , I

Rev. 0!!14/14 GROUND THREE: FACTS SUPPORTING GROUND THREE:

iO

Rev. Ol/l.f.'l4 ll

Rev. Oli14il4

GROUND FOUR:

FACTS SUPPORTING GROUND FOUR:

Rev. Olil4!14 -----~··-··---

'.

WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDLNG.

VERrFICA TION

This application must be verified or it wilt be dismissed for non-compliance. Eor verification purposes, an applicant is a person filing the application on his or her own behalf A pctition1.·r is a person filing the application on behalf of an applicant, for exarnple, an applicant's attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the "Oath Before a Notary Public" before a notary public or the "Inmate's Declaration" without a notary public. Ifthe inri1ate is represented by a licensed attorney, the attorney may sign the ''Oath Before a Notary Public'' as petitioner and then complete "Petitioner's Jnfom1ation." A non-inmate applicant must sign the "Oath Before a Nmary Public" before a notary public unless he is represented by a licensed attorney, in which case the attorney m4y sign the verification as petitioner.

A non-inmate non-attorney petitioner must sign the "Oath Before a Notary Pub tic'' before a notary public and must also complete ·'Petitioner's Information." An inmate petitioner must sign either the "Oath Before a Notary Public" before a notary public or the "Inmate's Declaration" without a notary· public and must also complete the appropriate ''Petitioner's Information."

OATH BEFORE A NOTARY PUBLlC

STATE OF TEXAS

COUNTY OF

--·--------------·-· , being duly sworn, under oath says: ''1 am the applicant/ petitioner (circle one) in this action and know the contents of the above applit:.~ation for a writ of habeas corpus and, according to my belieC the facts stated in the application arc true."

Signature of Applicant I Petitioner (circle one)

SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF _ _ _ _, 20........ -

----'--- -- Signature of Notary Publi~.:

Rev. Ol.'J4!J4

... '··~·-· ·~. •. ,,:

PETITIONER'S INFORMATION

Petitioner'::; printed name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

State bar number, if applicable: - - - - - - - - - - - - -

Address:

--------------------··---·--·---··-·------·----·---·-·-·

Telephone: ____ ··---·~---·-------------- Fax: _ _ _ _ _ _ _ _ _ _ _ _ _ ___

INMATE'S DECLARATION

1~·-------···-___ , }1111 the applicant /petitioner (cirdc one) and

being presently incarcerated i~JtEf.l.'r.r • ._ _ _ _ _ .declare under penalty of

perjury thaL according to my belie[ the facts stared in the above application are true and correct

Signed orw. NAlnl 16~---' :?JL___.

// f

Rev. 01 /14!14

/ / ~),J: ~" ,.. J:'. I i r•. IN THE COURT OF CRIMINAL APPEALS ·~ ..:.- OF TEXAS

EX PARTE § JOSEPH BARNARD HINES I § TRIAL BOUSE N0.776435 APPLICANT § WRIT NO. ------ MEMORANDUM OF LAW AND ARGUMENT IN SUPPORT OF SECOND APPLICATION FOR WRIT OF HABEAS cORPUS RELIEF,PURSUANT TO T.C.C.P. ARTICLE 11.07§4 (a)(l){b} &(a}(2}.

To the Honorable Judges of said court:

Now. comes,JOSEPH BARNARD HINES,Applicant,in pro se,seeking habeas corpus re- lief pursuant to T.c.c.P. ART. 11.07 § 4(a}(l}(b} & (a}(2}. '•'i Applicant submitts that he is being illegally confined in that his convictio ion is in violation of the law of both the United States and Texas Constitut- ion, where Applicant is being deprived of his due process rights guaranteed by the 4th & 14th ameddment of the United States COnstitution.

I.

TABLE OF CONTENTS

TITLE PAG&S

COvER LE'.1:1'ER .. . ; I

TABLE OF CONTENTS II

GROUND FOR RELIEh'"' III

SUMMARY OF FACTS AND PROCEDURBL HISTORY IV

11.07 § 4 STATE~r V-VI

GROUND ONE 1-6 PRAYER E'OR RELIEF 7

EY.HlBITS(EX]:

EX-A [H!!rl'l'.ICN 1N JUVENI.LE CASE NJ.~J u EX-B [a~ W!\IV.l:N3 JUUSDICI'IO~] 9

.EX-c [au:R REaM'1IN3 Jt.RISDICI'Ial] • 10 fX-D [Jl!XMENI' AID SENI.t:N::E,'.ll1.NJ.77()435] ll fX-E [AFFID\V.LT CF APPLICPUI'] • 12 EX-F [1\'Dr.tCH '10 3.PffifSS DE.'D.'IFICATI<N ~] 13 EX-G [JUVh'ULE ~] 14 EX-H [Cl&HS WU"VJN:i JUUSDic:rlCN 1N lR. W.776436;El.Xm>;an>91;003b92] • 15

II.

GROUND FOR RELIEF PRESEm'EO IN SECOND WRIT OF HABESS CORPUS.

GROUND ONE: THE JUVENILE COURT ABUSED IT'S DISCRETION BY WAIVING IT'S JURIS- DICTION AND TRANSFERRING APPLICANT TO A CRIMINAL COURT; THEREFORE THE CRIMINAL COU'"RT LACKED JURISDICTION OVER APPLICANT WHERE THE TRANSFER ORDER MADE NO FINDINGS ABOU'l' THE SPECIFICS OF THE ALLEGED OFFENSE. APPLICANT IS BEING DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS GUARAN'l'EE BY THE 14th AMENDMENT OF. THE UNITED STATES. .

III.

\

SUMMARY OF FA~rs AND PROCEDURAL HISTORY

Applicant was sixteen years of age at the tiDe of bls illegal arrest for criminal offenses on 12-17-97 by detective Moore and detective Baker from Eis- hower High School where he aas attending class. The detectives kidnapped App- licant and took him to a loc::al police department in harris county where he was photographed,fipger-printed,and innterrogated for hours then release on side of the road • .J~ weeks later on 1-8-98 the same detectives returned to Eis- hower High SChool and arrested Applicant in his classroom and took him to the same police department where he was photographed, finger-printEid,.and innterro- gated a second tim& for a few hours, then transferred him to the Juvenile De- tention Center-West Dallas,where he was charge. The State filed petitions seeking the waiver of jurisdiction of the 313th ju- venile court.see, EX-A~ IN JUVEBE CASE W.cm:m55J(. A certification hearing was held where the juvenile court granted the States petition and issued a order waiving jurisdiction.see,EX~B[cmR W\fiL\G Jt.rus:liclii::N,W.c.an>755J]. Applicant was transferred to the 180th criminal district court on 2-25-98. see,EX-c[<RER ~ ~,'lR. w.776435]. Wlere hs plea guilty tD the offEnse en · li-l-99 and was sentence to fifteen years in the Texas Department.of Cr~nal Justice-ID. see, EX-D [ JtiXM:lNl' AID smllKE,'IR. W.. 776435]. pt:p1.iamt t:l.ls1 a aotial. far new trial en 9-:~; A mtioa of awa:U \1aS t:l.ls1 en g...a.oo[CASE N0.14-QO-OlQ-15-cR] and the 14th COurt of Appeals dismissed the appeal for M lack of jurisdiction.Tex. R.App.R.26. No appeal to the order waiving jurisdiction was taken where Applicant was • . ~~

not informed by certification hearing counsel BOB LOPER,Cil by trial counsel CHARLES A. BROWN[see,EX-E[AI:F.DlWIT CF AEPLIC'.ANI.•J,or by the court of the right to vJ •hvi ... CJt appeal such procees.aee,EX-B[<EEHiBIVOO Jtru'SDICII'.CN]. Applicant then filed his original 11.07 writ of habeas corpus on or 4-2Q-02, which was denied without written order in WR-55,762-Q2.

11.07 SECTION 4 STATEM~f:

Applicant now files this second writ of habeas corpus pursuant to artical 11 11.07 § 4(a)(l)(b) & (a)(2). Because the current claimshas not been and could not have been reasonably formulated on the date of the filing of·his original habeas corpus,becauae the legal basis of the claim[~ KR RE:VIEW] was· not re- . i)t(\5- cognized by and could not have been reasonbtly formulated from a FINAL ~. 100 of a COURT OF APPEU.ATE JURISDICTIOO[MXN V. SIME,4l.O s.w. 3:l 366('llax. Pfp.-fm-. stal[lst Dist.]a::u3,aff'd__s.w. 31_____,A>J.4 'lex. am-1. M?P. LOOS l918,A>J.4 WL ~.] of tb this state on or before the filing of original habeas corpus. Alsp,by the preponderance of the evidenae,but for the violation of Applicants due process rights of the United Sta~es Constitution no rational Juror or judge co~ld have found him guilty or accepted his guilty plea where the criminal

district court lacked jurisdiction. V\f\~eJ ~ the plain language of the statute,once an Applicant files an appli- cation challenging the conviction,all subsequent applications reg~ing the same conviction mus.t meet "one" of the ~wo conditions set forth in,Texas Code tnr-:\~~>-"- of ~i1' •MJProcedures 11.07 §4(a)(l) & (2).see,EX PARTE WHITESIDE,l2 s.w." 3d 821. The Texas Court of Criminal ' ' Appeals held,"What is lacking in our statutory scheme-as ~ lacking in Kent-is any express statement of the applicable stand- ard of appellate review of the juvenile court's transfer. order. In the absence of an explicit statutory standard of appellate review,the courts of appeals have £4i~ the void with ~ecisional law spelling out how they will go about providing the "meaningful review" contemplated by KENT.see, MOON v S'rA'l'E, 2014 Tex. Crim. App. LEXIS 1918;see also, MOON v. STATE,410 S.W.3d 366(CEX.APP.-HOUSTON[ls~ Dist]2013.

Justict KELLER, stated, "For almost forty years, the tendency among the courts of appeals has been to hold that a juvenile transfer order need not specify in detail the facts supporting the order. The Court of Appeals in this case broke rank with the weight of tha.t authority, and this court now goes along with the court of appeals unconventional holding. In the instant case, even if Applicant .~d raise thie issue on appeal or in his original writ of habeas corpus it wouid have been fruitless where there was a void in the statutory . scheme process of a applicable standard of review. I

Finally Applicant contends that his second writ of habeas corpus contains a

r;<·.D v. '<

legal basiswhich was unavailable on or before the filing of his original habeas corpus where said claim could not have been reasonably formulated from the FINAL DECISI<Xi of a COUR'l' OF APPBLLA'l'B JUIUSDICTI~ OF THIS Si'ATE[KW V. smiE~4lO s.w. 3:J 3f6('IEX.APP.~[lst dist]4U.3),aff'd,_s.w. 3:J_,au4 1EX. OUM. APP.

:was 1918,4)14 WL f:897366.],and but for a violation of the United States Constitut- ion.

VI.

.....:.. i.m:£4~~..'lt2M~r:~. L·~~~~~~~*' ...............:•. 1 '·' ' ' ...

GROUND ONE: THE JUVENILE COURT ABUSED IT'S DISCRETION BY WAIVING IT'S JURIS- !· DICTION AND TRANSFERRING APPLICANT TO A CRIMINAL DISTRICT COURT; THEREFORE THE i: ' · CRIMINAL coURT LACKED JURISDICTION OVER APPLICANT WHERE THE TRANSFER ORDER llaD ! t MADE NO FINDINGS ABOUT THE SPECIFICS OF 'l'HE ALLEGED OFFENSE. }}~'

STANDARD FOR REVIEW:

When reviewing the process of a juvenile court transferring a juvenile to a. c;::riminal court is reviewed by KENT v/ UNITED S'f'ATE,the United s~tes Jz,..r.ae"- Court characteriz.eq the statuto~:y transfer pr~eedings in the District of COL- UMBIA as "critically important",and held' that any statutory mechanism for wai- ving juvenile-court jurisdiction must at least "mea~ure up to the essentials of due process and fair treatment." Among the requisites of a minimaJ.ly fair transfer process is the opportunity for a ·meaningful appellate review.id 16 L. ED 20 84 1 383 US 541,86 S. Ct.l045. A policy memorandum pr~~lgated by the District of COLUMBIA Juvenile court's that describes r "deterrninati ve factors" for gui~ing the juvenile court's dis- cred.on in deeiding wh.ether waiver of it's jurisdiction over a particular ju- venile offender is appropriate. id.

The Texas legislature incorporated those factors set out in K~nt,into it's own statutory scherne.TEX. FAM. CODE ANN.§S4.02(f} . . .

The- lst Court of Appeals . of Houston has set a proper staridard for a. meaning- fu1 review cornternplated by Kent,in it's ruling in MOON v. STATE,4l0 s.w. 3d 366,2013 TEX. APP. :LEXIS. 9345(TEX. APP. HOUSTON 1st DIST. 2013};a.ff'd_S.W. 3d ,2014 TEX. CRIM• APP. LEXIS 1918,2014 WL 6997366,where it's sister court , the 14th court of appeals has followed suit in GUERRERO v. STATE, 2014 TEX. ~P. LEXIS 13773 no.l4-13-00l01-CR(TEX. APP. H9USTON 14th dist.20l4}.

ARGUMENT AND AUTHORITY: - Applicant contends that he is being illegally restrained of his liberty in violation of his 4th & 14th amendment of oue process wher~ the juvenile court abused it's discretion by waiving jurisdiction and did not show it's work by specifically stating in it's written order it's reasons for waiver and the findings of' the court.see,EX-B[ CH:m wvm:; JUUSl!Cr.KN]. ·

'The juvenile court stated in it's order that there is probable cause to bel1 J.ieve that the cUld committed tne offense alleged,but the court showed no 1.

' . .-·......:

finding.see,EX-B(~ WVOO'Jt.IUS:>!Cm:N]. When, in fact,the court~'probable cause 1 was based on illegally obtained, evidence that was obtained duti:ng a unlawful \: arrest, where Applicant was kidnapped by detective Moore and~detective Bake~ from Eishower High SChool where he attended classes on 4 ~~ 12-17-97 and taken to a police department, where he was photographed, finger-printed, and innterrogated for hours then release on side of the road to parent.see,EX-f!E [AFFIIAVIT CF APPLICANI'], see also, EX-F [lVDI'ICl'l '10 St.Jf'i't(f$ ~ 'IE3l.'lMN{] • Applicant was again arrest by the same detectives three weeks later on or _. J~~N~ ' about the 8th day of ~aft01By,1998, from his classroom and taken to the same police department where he was photographed,finger-printed,and innterrogated a second time; Where detectives claim the victims identified him as the person who camnitted the crimes.see,EX-G[JUVENILE REJJ::H:S]. The juvenile report stated that detective Moore was able to obtain a photo- graph of the shorter suspect,which would be Applicant,because a patrol officer suspected him of being involved in criminal activity.see,EX-G[ JUIIENIIE FCEi:ucL:s]. Applicant's photograph was not in the police department system on or about 12-17~97,and the juvenile court did, not have any evidence presented to it of

any probable cause for Applicant's arrest on or about 12-i7-97.to obtain such I .

evidEtnce. so,any finding of probable cause would be void,because at the timee of the arrest on 12-17-97 detectives Moore & Baker had no probable cause to arrest Applicant,where he was not committing a crime at the time of arrest, there was no evidence that he had committed a crime or any reason to make.a prudent man believe that he had committed an offense. The test applicable in determining whether there is probable cause for arrest without a warrant,a paudent man in believing that the arrested person had committed or was committing an offense is set ~ in,BRITTEN v. STATE, 578 s~w. 2d 685,689(TEX. CRIM. APP. 1979)(on rehearing cert. denied,444 u.s. 955,100 S. Ct. 435,62(L ED 2d 328(1979). An inarticulate hunch,suspicion or good faith of the arresting officer is insufficient to constitute probable cause for a arrest,search,or temporary de- tention.see,FATEM v. STA'l'E,558 S.W. 2d 463,466.

!.APPLICANT'S PHOTOGRAPH,FINGER_PRINTS,AND DNA

2.

";,. ' a ~ I '

When investigative detention is based on nothing more than inarticulate hiJilch, the fruits of the detention and subsequent search are inadmissible in evidence. see,TUNNELL v. STATE,554 S.W •. 2d 697,698. Obtaining finger print.sevidence violates the fourth and fourteenth amendment, so a8 to make sure evidence inadmissible in a state. cr.l.minal trial; where ( l) the finger-prints were obtained while the accused was detained at police head- quarters without probable cause for his arrest, (2) the detention at police headquarters. of the· accused and other persons of similar description was not authorized by a judicial officer, ( 3) the accused was unnecessarily required to undergo two finger-printing seesions,and (4) the accused was not merely finger \printed during the f~rst of two sessions,but was also subjected to innterro-: ~gation.see,DAVIS. v. MISSISSPI,22 LED 2d 676,394 U.S. 721.

In MAPP v. OHIO, the court held, "All evidence obtained by searches and sei- zures· in violation of the constitution is by that same authority,inadmissible in a state·court." id. 367 u.s. 643,655,6 LED 2d 1081,81 S. Ct. 1684,84 ALR 8 2d 933(.1961). A juv~ile court waiver of jurisdiction begans with a finding of probable cause to believe that the juvenile committed the alleged offense,which is nec- essary for the juvenile court to waive it's exclusive jurisdiction on suffici- :>t.AS- ent facts.and circumstances to warrant a prudent man to believe that the ~ pact had conunitted or was committing an offense. IN THE MAT'.rER OF D.W.L.,828 S.W. 2d 520(1992 TEX. APP. LEXIS 855); GERSTEIN v. POGH,420 U.S. 103,112,43 L. EO. 2d 54,95 s. Ct. 854(1975. Probable cause for an arrest applies this san~ standard.see,SMITH v. STATE,739 S.W. 2d 848,853(TEX.CRIM.APP. 1987); IN THE Ia MATTER OE' N.M.P.,969 S.W. 2d 95(1998 TEX. APP.LEXIS 2355). In the instant case, detective Moore, and Baker ·were without probable cause to arrest applicant on 12-17-97 and obtain evidence without authority of a judi- cial officer as set out in Tex. E'am. Code Ann.:S2.025 (b)(3),and it was a abuse of discretion of the juvenile court to find probable cause(~ waive jurisdiction) that Applicant committed the offense where there was no evidenc~ shown of probable cause to arrest on 12-17-97 to obtain Applicant's photo- graph, finger prints, or to irmterrogate.

The. juvenile courts abuse of discretion continued further where the order 0

waiving jurisdiction did not apecifically.state it's reasons for waiver and certify it's action in a written order and the findings of the court. The juvenile court merely filled out a form certification order containing

. ' '

"boilerplate" language and did not include specific evidentiary findings to support it's determinations.see,EX-B[<K'ER WU:VOO JUUSDICI'KN]. Before a juvenile court mal' exercise it's discretion to waive jurisdiction over an alleged child offender,the juvenile court must consider the non-ex- clusive statutory factors of Tex. Fam. COde Ann.§S4~02(f) to faciltate the juvenile court's balancing of the potential danger to the public posed by tn~ particular juvenile offender with the juvenile offender's amenability to treat- ment. Should the juvenile court choose to exercise it's discretion to waive jurisdiction over the child,then Texas Juvenile Justice COde directs it to .._. state specifically in a written order it's-reasons for waiver and to certify it's action,including the written order and finding of the court.see,GUERREO v STATE, 2014 TEX.APP. tEXIS 13773(TEX. APP. 14th dist.-Houston). texas Family Code Ann.§S4.02(h) obviously contemplates that both the Juvenil~ ~kt~ for waiving it's jurisdiction and the findings of fact that Ora undergird those reasons should appear in the transfer order. In order to just- ify the broad discretion. invested in the juvenile court,a court should take pains to show it's work,as it were,by spreading it's deliberative process on the record, thereby providing a sura-footed and definite basis from which an appellate court can determine that it's decision was in fact appropriately guided by the statutory criteria,principled,and reasonable-in short,that it is ·a decision demonstrably deserving of appellate imprimatur even if the appellate court might have reached a different result. The legisla~ purpose of Tax~ Fam. Code Ann. §54.02(h) is not well served by a transfer order so lacking in'. specifics that the appellate court is forced to speculate as to the juvenile court's reasons for findings transfer to be appropriate or the facts the ju- venile court found to substantiate those reasons. conversely, the juvenile .,. court ~t does the heavy lifting Tex. Fam. Code Ann.§S4.02(h) requires· and . shows it's work should rarely be reversed. id.; MOON v. STATE,2014 TEX. CRIM. APP. LEXIS 1918. \ TRANSFERRING JUV~ILE JURISDICTION section 54.02 of the juvenile justice code' provides that the juvenile court '~ may waive it's exelusive original jurisdiction and transfer a child to the app- ropriate district court or criminal district court for criminal proceedings if: .,_/ (1) the child is alleged to have violated a penal law of the.''grade of felony; ( 2) the child was: (A) 14 years of age or older at the time he is alleged to have committed the

tx-D 4 *5 ', . \ .

offense,if the offense is a capital felony1an aggravated controlled substance felony,or a felony of the first degree,and no adjudication hearing has been conducted concerning that offense;or (B) 15 years of age or older at the time the child is alleged to have committed the offense,if the offense is a felony of the second or third degree or a state jail felony,and no adjudication hear- ing has been conducted concering that offense; and (3) after a full inveat.i.gat~ ion and a hearing,~~e juvenile court determines that there is probable cause to believe that the child before the court committed the offense alleged and that bacause of the se:riousnass of the offense. alleged or the background of the child the welfare of the community requires crimirial proceedings.Tex. Fam. COde Ann.§54.02(a). To facilitate this deterrnination,the juvenile court must consider,among other matters,the following factors: 1) \Yhether the all.api affEll'Ba \oB9 cg:Unst p:rs:n or prq;erty, with greter weight in favtr of • t:rcnafer given to offenses ~ the pers:n; 2) t:ne ~ am natl.lrity of the dU.l.d; 3) the :t'9CCtd arrj p:evi.als h:ist:ay of the dli.ld; 4) the-~ of cdqat.e protec:tial of the flblic arrj the l.ike1.itmJ of the Mlabilitatial of t tl'e chUd 1:¥. U9e of ~,secvioes,arxi facilities a.v:rently ava:ilable ·to the juvenile CXllt't. id. §54.02(f). If the juvenile court waives jurisdiction,it'..:.; required to "state specif~:­ cally in the order it's reasons for waiver and certify it's action,including 8 the.written order and findings of the court."id.§S4.02(h). In the instant case,which is identical to MOON,the only reason specifically ;, · ...• stated. in the juvenile court's order to justify the \iai ver of jurisdiction was .that :.he Offense alleged Was a SeriOUS one I and the only f~Ct Specified in Sup- . . ~~ ~~

port of this reason was that the offense alleged was committed against a per~ son.sae, EX-B[CHm WAJ:IIlN:i ~] • The COurt held that a waiver of juvenile jurisdiction "based on this partie cular reason,fortified only by this fact,constitutes an abuse of discretion." Additionally,the COUrt determined that other fact findings included in the juvenile court's written order were "superfluous" because,although mose facts findings would have been relevant to support a transfer for the alternative ~ reason that the appellant's background was such as to render waiver of juvenil~ jurisdiction appropriate, the juvenile court did. not c~te the appellant's back- ground as a reason for in transfer in the written order. MOON v. S'l'A'l'E,2014 •

~ ....... , t I ,' I.

TEX. CRIM. APP. LEXIS 1918,[WL] at* 14-15. In the instant case,like the order in MOON,the tr~asfer order in this case makes no findings about the specifics of the alleged offanse,where here,agg- ravated robbery and finds no more than probable cause to believe that appli- cant committed the offense alleged.see,EX-B[~ WIU'IINi Jt.RISDICl'IQ\J]. Also, as "'na in MOON ,~only stated reason given for Applicant's transfer was that "be- cause of the seriousness of the offense, the welf.are of the community requires (

criminal proceedings," and the only specific fact supporting this reason was that "the offense allaged to have been committed was against the person of another." MOON, instructs that that the juvenile courts waiver of jurisdiction "based o on this· particular reason fortifi~d only by this fact" constitutes an abuse of discretion.2014 TEX. CRIM. APP. LEXIS 1918, ['vL]at *14. In tne instant case,due to the juvenile court abuse of discretion during the certification hearing violating Applicant's due process rights and the criminal district court was without jurisdiction to enter it's judgment. Also,by a preponderance of the evidence,but for a violation of the United ... States Constit.ution[.lack of il..'ll:'i&:lict . - an:i denial of d..Js fCCXleSS] no rational fact . finding or juror could have found Applicant guilty of accepted his guilty plea beyond a reasonable doubt. <

HARM: . ,.,.·

Applicant was harm by the juvenile courts abuse of discretion during the cer- tification hearing where his fourth and fourteenth amendment of the United . States COnstitution was violated and force him to a criminal district court lacking jurisdiction to issue a judgment by convicting him as an adult. And such conviction ia causing collateral consequences wh~e the illegally obtain evidence is the foundation of other criminal convictions in trial cause num- bersa 776,436,; 800590; 800591; 809892,which are transferred offenses from the juvenile court with identical orders waiving jurisdictions as MOON.see,EX-H [CR:ERS WAIVl1'-G J£.R£IDICl'.ICN lN 'IR. N). 7764l5;Slm);rol591;~2~.

'lha juvalile a:u:t.'s Ql."tl;r v.eivin3 juris:li.ctim is tmm in it self v.t1am an atuse of discz:etial is CXlipl.etely stl:wl• 1';14 1 e •a v,, \-\\ c:"Qt.!l.

';.:

. {'{.':>~{(\~ ...,\'-I Applicant ra,pet£6Wo:ly prays this COurt grants him relief by an· acquital due to lack of probable cause for his arrest on or about 12-17-97 which evi- dence was illegally obtain; or in. alternative relief that the 180th criminal district courts judgment is vacated and. dismiss, and the casa is ramanded to the juvenile court.

Applicant further praya that this court take into consideration the other four orders waiving jurisdiction presented as exhibits and ~e judg- ment in those cases in the !80th district court and remand the cases to the juvenile court ,because Applicant plans to t.~~· litigation in these cases. as well and it would be a waste of judicial resources to file additional writs.

c.c.F.

\· ,\ 't

j/f-ch. N0.9B-00755J CGv THE STATE OF TEXAS IN THE 313TH DISTRICT COURT

COUNTY OF HARRIS OF HARRIS COUNTY, T E X A S

ORDER WAIVING JURISDICTION

IN THE MATTER OF JOSEPH BARNARD HINES.

ON THE 24TH day of FEBRUARY, 1998, a hearing was held in the above styled and numbered cause under Section 54.02 of the Family Code, on the issue of waiver of jurisdiction. Prior thereto the Court had ordered and obtained a diagnostic study, social evaluation,a full investigation of the child, his circumstances, and the circumstances of the alleged offense, counsel, BELINDA PITT was retained more than ten (10) days prior to the hearing; the counsel for the child was given access to' all written matter to be considered by the court in making the transfer decision more than one(1) day prior to the hearing; said child, JOSEPH BARNARD HINES and his mother, CHERRIE MARSHALL had been served with citation more than two (2) days prior to the hearing. After full investigation and hearing at which hearing, the said JOSEPH BARNARD HINES and his mother, CHERRIE MARSHALL were present; the court finds that the said JOSEPH BARNARD HINES, is charged in violation of penal laws of the grade of felony, if. committed by an adult, to wit: AGGRAVATED ROBBERY OF HUAN VU, COMMITTED ON OR ABOUT DECEMBER 15, 1997; that there has been no adjudication of this offense; that he was 14 years of age or older at the time of the commission of the alleged offense having been born on the~~~~~-~~~~:S;~~N' that there is probable cause to believe that the child committed the offense alleged and that because of the seriousness of the offense, the welfare of the community requires criminal proceedings. In making that determination, the Court has considered among other matters:

1. Whether the alleged offense was against person or property, with the greater weight in favor of waiver given to offenses against the person;

2. The sophistication and maturity of the child;

3. The record and previous history of the child; and 4. The prospects of adequate protection of the public and the likelihood of reasonable rehabilitation of the child by use of procedures, services and facilities currently available to the Juvenile Court.

The Court specifically finds· that the said JOSEPH BARNARD HINES is of > • sufficient sophistication and maturity to ·have intelligently, knowingly and voluntarily waived all constitutional and statutory rights heretofore waived by the said JOSEPH BARNARD HINES, to have aided in the preparation of his, defense and to be responsible for his conduct. That the offense alleged to have been committed was against the person of another and the evidence and reports heretofore presented to the court demonstrate to the court that there is little, if any prospect of

adequate protection of the public and likelihood of reasonable rehabilitation of the said JOSEPH BARNARD HINES by use of · procedures, services, and facilities

currently available to the Juvenile Court.

IT IS THEREFORE ORDERED that the jurisdiction of this Court sitting as a Juvenile Court, be and it is hereby waived, and the said JOSEPH BARNARD HINES be and the same is hereby transferred to the Criminal District Court of Harris County, Texas, for criminal proceedings in accord~nce with the Code of Criminal Procedure.

Signed this day of FEBRUARY

~ ~2t::::::- OF HARRIS COUNTY, T E X A S

SHARON KELLER ABEL ACOSTA PRESIDING JUDGE COURT OF CRIMINAL APPEALS CLERK (512) 463-1551 P.O. BOX 12308, CAPITOL STATION LAWRENCE E. MEYERS CHERYL JOHNSON AUSTIN, TEXAS 78711 SIAN SCHILHAB MIKE KEASLER GENERAL COUNSEL (512) 463-1600 BARBARA P. HERVEY ELSA ALCALA BERT RICHARDSON KEVIN P. YEARY DAVID NEWELL JUDGES

May 4, 2015

Joseph Hines #901768 Connally Unit 899 FM 632 Kenedy, TX 78119

RE: Trial Court Case# 776435-B Dear Mr. Hines :

After a thorough search of our records, we find that you do not have a Writ of Habeas Corpus filed in the Court of Criminal Appeals at this time. If you have any further questions or concerns, please direct them to the District Clerk in the convicting county where you originally filed the application.

I am herewith returning your documents.

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AA/kd Enclosure

SUPREME COURT BUILDING, 201 WEST 14TH STREET, ROOM 106, AUSTIN, TEXAS 78701 WEBSITE WWW. CCA.COURTS. STATE. TX. US