Hicks, Tracy
WR-17,290-15
| Tex. App. | Aug 18, 2015Background
- Relator Tracy Hicks (pro se, TDCJ) petitions the Texas Supreme Court for a writ of mandamus directed to Judge John E. Neill and the Johnson County prosecutor, seeking enforcement of his right to a speedy trial and correction of alleged trial-phase constitutional and statutory errors tied to a multi-count 1993 indictment for sexual offenses.
- Hicks says he has been detained on other convictions and that the 1993 multi-count indictment has operated as a detainer for ~22 years, prejudicing parole eligibility and conditions of confinement. He filed a formal speedy‑trial motion in March 2015 after numerous earlier letters and motions.
- Primary complaints: (1) failure to force the State to elect on misjoined non‑property counts (severance/election), (2) failure to admonish correctly on range of punishment before acceptance of guilty plea (Art. 26.13), (3) improper enhancement using an infirm prior conviction without proof of finality/date (Penal Code §12.42(b)), and (4) double‑jeopardy/multiplicity where indecency counts are lesser‑included of sexual assault.
- Hicks also claims ineffective assistance of counsel at punishment (stipulating to the enhancement without evidence of finality), requests Level Two discovery and a “mini‑trial” on the issues, and asserts the Tenth Court of Appeals mischaracterized his filing as habeas rather than mandamus.
- Remedy sought: conditional mandamus ordering a speedy mini‑trial or other proceedings to resolve Issues 2–5, correction of sentencing/enhancement and double‑jeopardy errors, discovery, and any other just relief.
Issues
| Issue | Plaintiff's Argument (Hicks) | Defendant's Argument (Respondent/State) | Held |
|---|---|---|---|
| 1. Speedy trial | Hicks: 22+ year delay is presumptively prejudicial; he asserted right (letters, motions, formal motion Mar 29, 2015); court/prosecution failed to move case forward. | Court/State: (implicit) no adequate showing to dismiss or immediate relief; procedural posture unclear; Tenth Court treated matter as habeas. | Petition asks mandamus to compel speedy mini‑trial; outcome pending (petition seeks conditional mandamus). |
| 2. Misjoinder/election (severance) | Hicks: multiple non‑property offenses were misjoined; court abused discretion by failing to force State to elect, prejudicing notice, sentencing and rights to trial. | State: (implicit) proceeded on indictment; did not make election; court did not sever. | Hicks argues mandamus is appropriate to correct clear abuse of discretion; relief sought. |
| 3. Failure to admonish range of punishment (Art. 26.13) | Hicks: court admonished only as to second‑degree range; other counts (indecency third degree) had different ranges; 40‑year sentence exceeds ranges and plea was not knowing/intelligent. | State/Court: (implicit) may argue substantial compliance or other procedural bars. | Hicks contends failure to admonish was reversible and mandamus‑worthy; asks corrective relief. |
| 4. Enhancement / insufficient proof of prior | Hicks: State used a 1985 robbery conviction to enhance under §12.42(b) without proving finality/date; Hicks pleaded “true” on counsel’s advice; counsel ineffective; sentence improperly enhanced. | State: (implicit) relied on plea/stipulation and indictment allegations. | Hicks argues Strickland prejudice; seeks mandamus to vacate enhancement or bar reuse of infirm prior; outcome pending. |
| 5. Double jeopardy / multiplicity | Hicks: counts (sexual assault and indecency with a child) arise from same conduct; indecency is lesser‑included of sexual assault; convicting/sentencing on both violates Double Jeopardy. | State: (implicit) prosecuted multiple counts; court accepted plea and sentence. | Hicks seeks mandamus relief to correct multiple punishments; asks for dismissal or resentencing. |
Key Cases Cited
- Barker v. Wingo, 407 U.S. 514 (speedy‑trial balancing test)
- Smith v. Hooey, 393 U.S. 374 (incarceration on other charge does not forfeit speedy‑trial rights)
- Strickland v. Washington, 466 U.S. 668 (two‑prong ineffective‑assistance standard)
- Callins v. State, 780 S.W.2d 176 (Tex. Crim. App.) (severance/election law on misjoined non‑property counts)
- Ex parte Fortune, 797 S.W.2d 929 (Tex. Crim. App.) (double‑jeopardy claims may be raised despite guilty plea via habeas)
- Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App.) (relationship of indecency and sexual‑assault offenses; lesser‑included analysis)
- Blockburger v. United States, 284 U.S. 299 (double‑jeopardy same‑elements test)