Briones, Jesse Gallardo AKA Jesse Briones

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\RECE~VED .~~~ CAUSE NO

COURT OF C~ffi!lli\IAl ~~19EALS IN RE: JESSIE BRIONES, ID# 1682650 § IN THE C~URT OF AUG 1~ 101~ REALTOR § § AroJ®~ ~te~~~~, C~®rk vs. § CRIMINAL APPEALS

§ DEAN WHALEN § AUSTIN TEXAS ECTOR COUNTY JUDGE, 70th J.D.C. § AND § CLARISSA WEBSTER § ECTOR COUNTY DISTRICT CLERK § RESPONDENTS

REALTOR'S MOTION FOR LEAVE TO FILE ORIGINAL APPLICATION FOR WRIT OF MANDAMUS IN FORMA PAUPRRI~

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, Jessie Briones, Realtor, Pro-Se pursuant to Article 72'.1 of the Texas Code Of Criminal Procedure and Article 4. 04 § l, and 11.07 § 3 (d) , of the Texas Code of Criminal Procedure, and asks this Honorable Court,'s permission for leave to file an "Original Application For Writ Of Mandamus Informa Pauperis," under trial Court Habeas Cause No. A-37,410-B. Realtor's declaration of inability to pay costs is attached as exhibit 1. In support thereof Realtor would show the following.

I. HABEAS TRIAL COURT'S REFUSAL TO PERFORM IT'S MINISTRIAL DUTY

On March 24, 2015, Realtor filed his Second Application of.Habeas Corpus in the trial Court No. A-37,410, along with a memorandum in support of the 11.07, and a Appendix of Exhibits with a perponderance of evidence. On June 23, 2015, Maria Zamudio District Clerk of Ector County answered the Habeas Application with a clerk's summary sheet and a Clerk's Certificate of Appeal.

Consequently, the trial Court has refused to rule uoon any of the grounds put forth by Realtorin his Habeas Application and memorandum in accordance with the Rules of Appellate Procedure, tir perform any fact finding necessary to adjudicate Realtor's valid habeas claims. Realtor has exhausted his remedies and has no other adequate remedy at law. Because the acts sought to be comoelled are ministrial, not discretionary in nature, Realtor asks the Honorable Court's permission to Grant his, "Motion For leave To File Original Application For Writ Of Mandamus".

II. UNDERLYING HABEAS ISSUES.

It can be shown that no order of designating issues was entered by the trial Court, no order for affidavit were produced to resolve valid.habeas claims, no hearing was held or any proper assisgnment to the convicting Court was done by the clerk under ';['ex. Code Crim. Proc. Ann. Art. 11.07 § 3(b) (vernon supp. 2001). By which the clerk Clarissa Webster of the convicting Court assigns a file number to the case, ancillary to that of the conviction being challenged, and forward a copy of the application to the attorney representing the State. see Tex. Code Crim. Proc. Ann. Art. 11.0~ § 3 (d) . (vernon supp. 2001 ).. After the convicting Court makes a findings of fact or approves the findings of the person designated to make them, the clerk of the convicting Court must immed- iately transmit to the Court of Criminal Aooeals, the apolication, answers filed, any motions filed, transcripts of all depositions and hearings, and affidavits, and any other motions such as official records used by the Court in resolving issues of fact. However, Realtor contends the trial Court ·and trial Clerk did not act in accordance to there ministrial duties. Failure of the Court to address the habeas proceedings with a finding of facts and conclusion of law and to qrant;relief or forward t~ the Court of Criminal Appeals, will prevent Realtor from having his claims adjudicated·based on an accurate record compelled ~n a fair manner, and consistant with the demands of Due Process. This will allow Realtor to show cause and prejudice in subsuquent ,federal writ litigations. These underlying hab~as:claims, when substantiated, will entitle Realtor to relief.

III. CONCLUSION AND PRAYER

As stated above, Realtor has put the Court on notice of enforcing it's ruling and has gone beyond the requirements of Article 11.07, to date, Realtor has recieved no responce in accordance with Article 11.07 as listed above.

Wherefore, premises Considered, Realtor, Jessie Briones, Pro-Se Prays that I this Honorable Court Grant his Motion For Leave To File Original Application For Writ Of mandamus, and issue process to compel the habeas trial Court to perform there ministerial duties.

Executed on this 8 day of Aug/~1~ ~ctfully Submitted

Jessie Briones

SWORN DECLARATION

I, Jessie Briones, being presently incarcerated in the Goree Unit of the T.o.c.g. in Walker County, Texas, Under penalty of purjury, do hereby affirm that the facts put forth above are true and correct.

Executed on this 8 day of August, 2015

y~~ Respectfully Submitted

.Jessie Briones

CAUSE NO.

IN RE: JESSIE BRIONES, ID# 1682650 § IN THE COURT.OF REALTOR § § - vs. § CRIMINAL APPEALS § DEAN WHALEN § AUSTIN TEXAS ECTOR COUNTY JUDGE, 70th J.D.C. § AND § CLARISSA I.•JEBSTER § ECTOR COUNT¥ DISTRICT CLERK § RESPONDENTS §

REALTOR'S ORIGINAL APPLICATION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, Jessie Briones, Realtor, Pro-Se, in the above styled and numbered cause of action and files this Original Application .For. Writ Of Mandamus, pursuan~

to Article 11.07 § 3(d) and 4.04 § 1, of the Texas Code of Criminal Procedure, and would show the following ..

I. REALTOR Jessie Briones, T.D.C.J.# 1682650, is an inmate incarcerated in the Texas Department of Criminal Justice Goree Unit, and is appearing pro-se, .who can be located at 7405 hwy 75, S., Huntsville Texas 77344. On M3.rch 24, 2015, Realtor filed his Original Application for a Writ of Habeas. Corpus in the .70th Judicial District of Ector County. The application was under habeas trial Court no. A-37,410-B.

II. RESPONDENT'S Respondent, the Honorable Dean Whalen, in his capacity as Judge of the 70th Judicial Court, Ector County·, Texas has a ministerial duty to make a " finding of facts" as set forth by T.C.C.P. Art. 11.07 § 3(d):, enforce any orders issued as·set forth by T.C.C.P. Art. 11.54 1 and rule upon properly filed motipns taken under his advisement.

The Honorable Dean Whalen, ,in the 70th Judicial District Court, Ector County, I Texas may be served at his place of business at 300, N Grant Ave. Ector County Courthouse, Odessa Texas.

Respondent, Clarissa Webster, in her capacity as Clerk of the 70th Judicial Court , Ector County, Texas has a ministerial duty to assign a file number to the caser ancillary to that of the conviction being challenged .arr_d forward a copy of the applicat- ion to the attorney representing the State under Tex. -:code Crim ..Proc. Ann. Art. 11.07 §" 3 (d) (vernon supp. 2001). The Clerk Clarissa Webster, of the 70th Judicial District Court, Ector County, Texas may be served at her place of business at Room 301, Ector County Courthouse, 300 N. Grant Ave. odessa Texas 79761.

III. T.C.C.P. STATUTORY REQUIREMENT~

The portions of T.C.C.P. applicable to this application, state; If the ccnvictirg ca.rt <kides that there are .ccntroverted, previcusly unrerolved facts wudl are naterial to the legality of the Afplicant 's ccnfinEITB1t, it shall. enter an order within 20 days of the e:xpiratim of the tine all<:Mtd for the State to reply, designatirg the issues of fact to be resolved. 'Ib res9Jlve t:ha92 issues the .Court nay order affirnvits, defnsitic.hs, interrc:gatories, crl:litimal' forensic testirg, am hearirgs, as. v..ell as r.:erscnel recollectiim. · . . after the ccnvictirg ·ca.rt rrakes firilirgs .·of facts or ClfProVeS .the fin:lin:] of the p?rsm designated to rrake then, the clerk of the ccnvictirg ca.rt ::hall ine::'liately transnit to the ca.rt of Criminal Afp:Els, urder c::ne cover, [the writ record] . T.C.C.P. ARTICLE 11.07 § 3 (d) (emphasis added)

'Ihe ca.rt of Jl.rlje grantirg a writ of h:ll::e3s corp.l'3 nay grant necessary ~s to brirg before - him the testim::ny taken . before the examining ca.rt, am nay issue pr<X'ffiS ·to enforce the atterilance of witnesses. T.C.C.P; ARTICLE ll.54(EI!fhasis ~)·

'Ihe ca.rt of Criminal Afp:Els am EB.dl Jl.rlje thereof ::hall have, am is herEby given, the ~ am authority to grant arp issue am cause the :issLBnce of writs of h:ll::e3s c::x:JrPJC'' am, in criminal law natters, the writs of M3rrl3rrus •.•• ~T.C.C.P. ARTICLE 4.04 § 1.~

IV. RESPONDENT WHALEN'S IN VIOLATION OF T.C.C.P. ART. 11.02.

Respondent Whalen is in violation o~ article 11.07 : 3(d) of the Texas Code of Criminal Procedure by failing to adress the grounds put forth and to make a "finding . of facts" to be transmitted to the--·court of Criminal Appeals. Realtor has exhausted his remedies and has no other remedy of law. The acts sought to be compelled are ministerial, not discretionary in nature. see Lanford v.

Fourteenth Court of Appeals, 847 S .. W.2d 581, 586(Tex.Crim.App.l993). As this Court noted in Mcree v. HamPton, 824 S.W.2d 57~_, the legislature has beeri "very restrictive in its directions to the trial Courts of this State'~ in order to ensure an· expeditious adjudication of habeas claims. Respondent Whalen has refused to perform his ministerial duty to consider and rule upon Realtor's habeas corpus pleadings-in a·reasonable period of time. Realtor properly filed a writ of habeas corpuson March 24, 2015. Realtor has not recieved the proper response or action in lue of·his habeas application. A trial Court is .required .to consider and rule :upon a motion within-a reasonable amount,·of time. see Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston. [lst Dist.J J992, orig. proc~ see also Kissam v. Williamson, 545 S.W.2d 265, 266-67 (Tex.Civ.App~

Tyler 1976 orig. proc:) (mandamus will ,issue where ·trial judge refuses to act within a reas'onable time)" when a motion is properly filed ari.d pending before a trial Court, the act",and mandamus may issue to compel the trial· judge to act. , O'Donneley - a y...

Golden.~ 860 S.W.2d 267,-70(Tex.App.-Tyler 1993 orig. proc.); Eli Lilly and Co. '£.:. Marshall, 829 S.W.2d 157, 158 (Tex.1992~.(trial Court abuses its discretion by refusing to conduct hearing and render decision on motion); Chiles v. Schuble, 788 S.W.2d 205 207(Tex.App.-Houst.[l4th Dist.] 1990 orig. proc.)(mandamus is appropriate to require trial judge to hold .and exercise discretion). Here, Respondent Whalen's refusal to perform his.ministerial duty in a reason- able manner and time is clearly an attempt to delay the resolution of Realtor's valid habeas claims that, when substantained, will entitle Realtor to relief. Realtor requests that this Honorable Court issue an order compelling the habeas trial Court to adress his properly filed habeas application.

V. CONCLUSION AND PRAYER As stated above, it is. necessary that· the Court complete its habeas process so -·· that Realtor's habeas claims can be properly adjudicated on the-ir merits. Additionally, Realtor cannot fully substantiate his habeas claims without proper procedure. Respondent \~halen's failure to adhere to the applicable statutes and perform his ministrial duties, undermines the entire judicial process .. Failure of this Court to Grant Realtor's Writ Of Mandamus will allow him to show cause and prejudice in subsequent federal writ litigation. Wherefore, Premises Considered, Realtor Prays that this Honorable Court of Criminal Appeals instruct Respondent Whalen and Webster to comply with there minister- ial duties.

CERTIFICATE OF SERVICE AND MAILING

I Jessie Briones, being presently incarcerated in the Y.D.C.J. Goree Unit, of Walker County, Texas and under penalty of purjury, do hereby affirm that I have delivered a copy of this foregoing Realtor's. Motion t:o-the· prison;·mailroom for mailing to the following;

Louise Pearson, Clerk Ms. Clarissa Webster Texas Court of Criminal Appeals District Clerk of Ector County P.O. Box 12308 Room 301, Ector County Courthouse Capitol Station 300 N. Grant Ave. Austin Texas 78711-2308 Odessa Texas 79761

Executed on this day the 8th day of August, 2015

Respectfully Submitted

Jessie Briones

"• .

EXHIBIT 1 · ·

DECLARATION OF INABILITY TO PAY COST

(The following Declaration is made pursuant to the Texas Rules of Civil Procedure and Title 6, Chapter 132 of the Texas Civil Practices and Remedies Code.)

Now respectfully. comes _.=J-=~=='t"'--~-~'_,_lO=-=.ll;-""'e5""-'- - - - - - - - - , - - - ' . TDCJ

\ll82~50 #--~~~------------ , and declares that I am unable to pay the court costs in this civil action

and requests leave of the Court to proceed in forma pauperis in this accompanying civil action and· would show the Court the following:

(I) I am presently ·incarcerated in the-rnoMAS ~REt UNLT Unit of the Texas Department of Criminal Justice where I am not permitted to earn or handle money.

(2) I have no source of income or spousal income.

(3) I currently have$__-+.~------- credited to meiri the Inmate Trust Fund.

(4) During my incarceration in the Texas Department of Criminal Justice I have received . approximately$ . .kf .. per month as gifts fi:om relatives . and friends.

(5) I neither own nor have an interest in any realty, stocks, bonds, or bank accounts and I receive ho interest or dividend income from any soilrce. ·

(6) I have __N"""o"'-·_ _ dependents.

(7) I have total debts of approximately $_3,-=-00=--:0=----_,---:.._ 1 (8) I owe $____,_I-P~"'-'l.=5_ _ _ as restitution.

(9) My monthly expenses are approximately $_\'+'13"""'8"""0_ _ ___;__

I, TDCJ

#_ _.__,~=· \ B=?Jo'-'----IQO_ _ _ _ _, being presently incarcerated in the T\tOtlt\AS &aRt£ . Unit of

the Texas Department of Criminal Justice in _____W"-"A=U\=tK=--------- County, Texas, verify and declare under penalty of perjury that the foregoing statements are true and correct. Executed on this

the 8tl~ day of. August ,20 l5 ~~ N~ TDCJ# ;;g~; ./ I~ Upj{}