Case Information
*1
83,045-01
RECEIVED IN
OCUART OF ORMDINAL APPEALS SEP 142015
CAUSE NO. WA-83,675-01
ADVANOSS, CENTK
NECHOLAS G. HEZNTZ IN THE TEXAS COURT I OF CREMENAL APPEALS STATE OF TEXAS SURPLEMENT TO APPLICATION FOR EXTRAOROINARY WREY OF HABEAS CORPUS
comes Now, Nicholas G. Heintz, the Applicant in the above-captured cause, who, without assistance of counsel, respectiully meves this Honorable Court to include the
*2 Following information in determining the Habeas Application before it.
In response to Applicants 21001y2015 "Renewed Motion for Hearing," Smith Lourty, 7th Judicial District Court, set a hearing on the initial Habeas Application, CauserNd. 15-0959-A, for 17 August 2015. See, 28 July 2015 "ORDER SELFING HEARING," attached hereto as Exhibit "A" However, said "hearing" was vacated in the same manner as the 19 June 2015 hearing was vacated -
*3 the District Court is still of the opinion it lacks jurisdiction over the claims raised in the Hakeas Application.
Nonetheless, the District Court is continuing to aibed the State to proceed with its prosecution of the criminal aceusation on 17 August 2015, the Court gave the State twenty (20) days to file isomething.
Applicant Filed a "Motion To Dismis Criminal Reeusation, pursuant to Articles 32.01 and 38.061 of Texas Code of Criminal Procedure,
*4 with the 7th Judicial District Court of Smith County on 29 June 2005. See datestamped copy of 29 June 2005, Motion To District Criminal Reccisation, attached hereto as Exhibit B." To date, however, said motion has not, to Applicant's Knowledge, been set for hearing. Close to one (1) year has now elapsed since the 20etober 2014 criminal accusation was filed against Applicant in Smith County, with Applicant all the while
*5 languishing illegally restrained in his liberty, with the case not having been presented to the Grand Tory for determination.
WHEREFORE, Applicant, prays this Court will soon dismiss the groundless Criminal accusation and find that Applicant is not required to register as a sex offender in Texas.
DATED this 10th day of September, 2015. Nicholas G. Heintz, Applicant.
*6
Nicholas G. H. H. Appieant without Assistance of Counsel 22544 Hic every Lane. Mineola, Texas 75773 (203) 638-4383
AFFIDAVIT
I., Nicholas G. H. H. H., being firstduly swom, depose and state as follows. I. have read the Foregoing Supplement 76 Application for Extraordinary Unit of Habeas Copus and swear that the allegations of fact contained therein are true and correct, according to my belief.
DATED this 40th day of September, 2015
SUBSCRIRED AND SWORN to before me this 10 day of September, 2015, by Nicholas G. H. H. H.
ROBERT C. BROWN Notary Public. State of Texas My Commission Explios October 04, 2017
Kidn C Binn Notary Public
*7 CERTIFICATE OF SERVICE
On this 10th day of September, 2015, the undersigned caused to be mailed via the U.S. Postal Service a true and correct copy of the Foregoing Supplement To Application for Extraordinary Unit of Habeas Corpus to Mr. Ken Fikston, Texas Attorney General, Office of Attorney General, Post Office Box 12548, Austin, Texas 7811-2458.
Hebdles S. Neind
7
*8 EXHIBIT A"
*9
CAUSE NO. 15-0959-A
THE STATE OF TEXAS
V.S.
NICHOLAS G. HEINTZ
IN THE HUMANIA
SMITH COUNTY, TEXAS
ORDER SETTING HEARING
IT IS ORDERED that the above-styled and numbered cases are SET for hearing on:
Application for Extraordinary Writ of Habeas Corpus
for Monday, August 17, 2015 at 3:00 o'clock p.m. in the 7th Judicial District Courtroom located on the second floor of the Smith County Courthouse in Tyler, Texas.
IT IS SO ORDERED.
cc: State Nicholas Heitz 22544 Hickory Lane Mineola, TX 75773
*10 EXHIBIT "B"
*11 CAUSE NO. UXIDIDIOTSE
STATE OF TEXAS
Vs.
NICHOLAS G. HEINTZ
2015 JUN 29 AN 9: 18 SMITH COUNTY TEXAS
By.
IN THE 7th JUDIGIAL
DISTRICT COURT OF
SMITH COUNTY, TEXAS
MOTION TO DISLISS ORIGINAL ACCUSATION
CONES NOW, Nicholas G. Heintz (hereinafter "Mr. Heintz"), the defendant in the above-captioned cause, who, pursuant to Articles 32.01 and 28.061 of Texas Code of Criminal Procedure, respectfully moves this honorable Court to dismiss the criminal accusation lodged against him.
Art. 32.01. Defendant In Custody And No Indictment Presented.
When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever date is later.
*12 Mr. Heintz was initially "detailed in custody" and subsequently "held to bail", without an indictment, for his appearance to answer the criminal accusation against him, since 2 October 2014, 271 days (at conclusion of June, 2015). Moreover, it is his understanding that the "next term of the court" which was held after Mr. Heintz's "commitment or admission to bail" concluded on 30 June 2015.
Art. 28.061. Discharge For Delay.
If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this article is a bar to any further prosecution for the offense discharged and for any other offense arising out of the same transaction...
A lawful indictment in the criminal prosecution of Mr. Heintz is unattainable. This fact is the reason behind the lengthy, Constitutionally excessive (271 days) delay. The failure to provide Mr. Heintz with his Constitutional Right to a "speedy trial", and "to have his guilt or innocence determined soley on the basis of the evidence introduced at trial" (Taylor v. Kentucky, 436 U.3. 478, 98 S.0t. 1930, 56 L. Ed 2d 468, 1978. (Id., at 469) (emphasis added)), can be attributed to the following irreparable jurisdictional "missteps" which occurred at the outset of the case against Mr. Heintz:
*13 1) the charged accusation of failure to register as a sex offender is groundless. Upon his arrival to the state in 2012, Austin DPS made a definitive, legally binding determination that Mr. Heintz was not required to register in Texas. See. Exhibit "K" of Mr. Heintz's Application for Extraordinary Writ of Habeas Corpus. 2) With a release date in Utah of 23 November 1999, the registration requirement under Utah Court Case No. 831916801, for the "reportable conviction" named in the Smith County Arrest Warrant, statutorily expired on 23 November 2009. See. Exhibits "A" and "H" of Mr. Heintz's Application for Extraordinary Writ of Habeas Corpus. See also, Utah Code of Criminal Procedure, Sec. 77-27-21.5 (9) (a) and Texas Code of Criminal Procedure, Chapter 62, Art. 62.052. "The duty to register for an extrajurisdictional registrant exqdires on the date the person's duty to register would expire under the laws of the other state..."
3) notwithstanding the fact a) that the registration requirement for the "reportable conviction" charged had long since expired; b) that DPS in Austin had found no legal duty of Mr. Heintz to register; and, c) that Mr. Heintz has a legal Right to a presumption of innocence under the U S Constitution and under Texas Code of Criminal Procedure, Title 1, Chapter 38, Art. 38.03 and Art. 11.43:
*14 All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.
Art. 11.43. No presumption of guilt arises from the mere fact that a criminal accusation has been made before a competent authority.
However, twelve (12) days following his arrest and confinement, for allegedly having failed to register as a sex offender, the Sex Offender Registration Unit of Smith County Sheriff's Office, without jurisdiction ("reportable conviction" registration requirement expired), on 14 Oct. 2014, went ahead and registered Mr. Heintz --- without an indictment, without a trial and without a conviction. See. Exhibit "H" of Application for Extraordinary Unit of Habeas Corpus (third to last page).
WHEREFORE, defendant Heintz respectfully requests that the Court grant this motion to dismiss for lack of prosecution and reverse the wrongful, illegal requirement of sex offender registration in Texas.
DATED this days one, 2015.
Defendant.
*15
Micholas G. Heintz, Defendant Without Assistance of Counsel 22544 Hickory Lane Mineola, Texas 75773 (903) 638-4383
AFFIDAVIT
I, Micholas G. Heintz, being first duly sworn, depose and state as follows; "I have read the foregoing Motion To Dismiss Criminal Accusation and swear that the allegations of fact contained therein are true and correct, according to my belief."
DATED this 29th day of June, 2015.
SUBSCRIBED AND SWORN TO before me this 29th day of June, 2015, by Micholas G. Heintz.
CERTIFICATE OF SERVICE On this 29th day of June, 2015, the undersigned hand-delivered a true and exact copy of the foregoing Motion To Dismiss Criminal Accusation and proposed Order to Mr. D. Matt Bingham, Smith County District Attorney, 100 North Broadway Ave., 4th Floor, Smith County Courthouse, Tyler, Texas 25702.
*16 CAUSE NO. UNIMDIATED
STATE OF TEXAS
Vs.
NICHOLAS O. HEINTS
IN THE 7th JUDICIAL
DISTRICT COURT OF
SELFH COURTY, TEXAS
ORDER
MOTION TO DISNISS
ORIGINAL ACCIDATION
On this day of July, 2015, came to be heard Defendant's Motion To Dismiss the Criminal Accusation charged against him; to Restore his Liberty, Unencumbered, and it appears to the Court said motion should be GRANTED/DEMIED.
IT IS THEREFORE ORDINED that the charge of Fail to Comply with Sex Offender Registration Life/Annually be dismissed, with prejudice.
IT IS THEREFORE ORDINED that the Defendant, Nicholas O. Heintz, is not required to register as a sex offender in Texas.
HOMORASIA KENRY L. RUSSELL Judge Presiding