Case Information
*0 RECEIVED COURT OF CRIMINAL APPEALS 9/3/2015 ABEL ACOSTA, CLERK *1 WR-83,783-01 COURT OF CRIMINAL APPEALS
WR-83,783-01 AUSTIN, TEXAS Transmitted 9/3/2015 1:36:05 PM Accepted 9/3/2015 1:44:55 PM IN T HE C O U RT OF CRIMINAL APPEALS ABEL ACOSTA CLERK OF TEXAS IN RE T H O M AS A L L EN S I M O N, Relator ON A P P L I C A T I ON FOR A W R IT OF M A N D A M US IN CAUSE N O. 42908 IN T HE 424™ D I S T R I CT C O U RT F R OM B U R N ET C O U N TY RESPONSE OF Hon. Wiley B. ^^Sonny" McAfee, District Attorney Real Party in Interest OFFICE OF D I S T R I CT A T T O R N EY 33^'' and 424'^ J U D I C L^ D I S T R I C TS Wiley B. McAfee, District Attorney P. O. Box 725, Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx,us By: GaryW.Bunyard
Assistant District Attorney State Bar N o. 03353500 A T T O R N EY FOR REAL PARTY IN I N T E R E ST WILEY B. " S O N N Y" McAFEE, D I S T R I CT A T T O R N EY September 3, 2015 Oral Argument is Waived *2 Identity Of The Parties Trial Court/Respondent
Honorable Evan Stubbs
424'^ Judicial District
Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74
Burnet, TX 78611
424coordinator@dcourttexas.org
Counsel for Real Party in Interest - Wiley B. "Sonny" McAfee, District Attorney
Gary W. Bunyard
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar N o. 03353500
g.bunyard@co.llano.tx.us
Real Party in Interest - Gary E. Prust
Gary E. Prust
Attorney at Law
1607 Nueces St.
Austin, TX 78701
(512) 469-0092
gary@prustlaw.com
ii
Counsel for Relator
Tracy D. Cluck
Attorney at Law
12600 H i ll Country Blvd., Suite R-275
Austin, TK 78738
(513) 329-2615
State Bar N o. 00787254
tracy@tracyclucklawyer.com
Of Counsel for Relator
L. T. "Butch" Bradt
Attorney at Law
14015 Southwest Freeway, Suite 4
Sugar Land, TX 77478-3500
(281) 201-0700
State Bar N o. 02841600
ltbradt@flash.net
Relator
Thomas Allen Simon
SO #26546
Burnet County Jail
900 County Lane
Burnet, TX 78611
iii *4 Table Of Contents Page Index of Authorities vi
Statement of the Case 1
Statement on Oral Argument 1
Statement on Jurisdiction 1
Response to Issues Presented 2
Statement of the Facts 3
Summary of the Argument - Response to Issue N o. 1.
l.a. The Respondent has the authority to remove appointed
counsel when the Respondent has made a finding of good cause that is entered on the record 5 l.b. Where the Respondent has authority to remove
appointed counsel for good cause that is entered on the record Mandamus w i ll not lie 5 Argument on Response to Issue N o. 1.
1.1. Principals of Law 7
1.2. Applicable Facts 8
1.3. Discussion and Conclusion
iv
Summary of the Argument - Response to Issue N o. 2.
2.a. The Real Party in Interest neither joins nor opposes
Issue N o. 2 because the Court's order entered on August 26, 2015, to stay further proceedings in the underlying cause until this application for writ of mandamus is resolved effectively renders this Issue moot 10 Argument on Response to Issue N o. 2.
2.1. None Presented by Real Party in Interest 10
Prayer for Relief 11
Certificate of Word Count 11
Certificate of Service
V *6 Index Of Authorities Case Law Page
Braxton v. Dunn, 803 S.W.2cl 318, 320 (Tex.Crim.App. 1991). 7
Ex parte Billy Burl Clayton, 171 Tex. C r i m. 398;
350 S.W.2d 926 (Tex. C r i m. App. 1961) 8
Stotts V. Wisser, 894 S.W.2d 366 (Tex. C r i m. App. 1995) 9
Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424
(Tex.Crim.App. 1981) 7, 9
TPwmas v. State, 550 S.W.2d 64, 68 (Tex. C r i m. App. 1977) 7
Constitutions
U.S. Const, amend. VI 7
U.S. Const, amend. X IV 7
Statutes/Rules
Tex. Code C r i m. Proc. Art. 26.04 7
Tex. Code C r i m. Proc. Art. 26.04 (j) (2) 7, 8
Tex. Disc. R. of Prof. Cond. Rule 303 (a) (1)
vi *7
statement Of The Case Counsel for the Relator has adequately set forth the Statement of the Case except
that Relator was arrested and later indicted for the offenses of Sexual Assault and
Aggravated Assault Causing Serious Bodily Injury. Relator was never charged nor
indicted for Aggravated Sexual Assault. These charges are pending and awaiting
trial subject to the resolution of this application for writ of mandamus.
Statement on Oral Argument The undersigned waives Oral Argument. The undersigned does not believe
that Oral Argument w i ll be beneficial for this case for the reason that the issues are
straight forward and lack any novel or complex nuances. Should the Court believe
that Oral Argument w i ll assist the Court in any way, the undersigned w i ll gladly
accommodate the Court.
Statement on Jurisdiction While not conceding the right to relief. Real Party In Interest acknowledges the
jurisdiction of this Court as set forth by Counsel for Relator.
R e s p o n se To Issues Presented Response To Issue N o. 1:
l.a. The Respondent has the authority to remove appointed counsel when the
trial court has made a finding of good cause that is entered on the record.
1. b. Where the Respondent has authority to remove appointed counsel for
good cause that is entered on the record Mandamus w i ll not lie.
Response to Issue N o. 2:
2. a. The Real Party in Interest neither joins nor opposes Issue N o. 2 because
the Court's order entered on August 26, 2015, to stay further proceedings in the underlying cause until this application for w r it of mandamus is resolved effectively renders this Issue moot.
statement Of TIte Facts The Relator was arrested on March 24, 2014, for two counts of Sexual Assault
and one count of Aggravated Assault Causing Serious Bodily Injury. The Relater
is not now and has never been charged w i th Aggravated Sexual Assault in regard to
this case as is alleged in the Petition for Mandamus. The Respondent appointed
Tracy D. Cluck on April 8,2014, to represent the Relator on these charges. A duly
empaneled Grand Jury then returned an Indictment on June 3, 2014, charging the
Relator w i th two counts of Sexual Assault and one count of Aggravated Assault
Causing Serious Bodily Injury.
As described by Counsel for the Relator, Tracy D. Cluck filed ex parte motions
seeking funds for the employment of a medical expert and for additional funds for
investigative services. The Respondent called for an ex parte hearing on these
motions. RR Vol. 1 Page 4. Present at this hearing was Tracy D. Cluck and the
Relator. RR Vol. 1 Page 4. In presenting the reasons for the funds being requested
Tracy D. Cluck informed the Respondent that he would not be able to provide the
Relator effective assistance of counsel without the funds. RR Vol. 1 Pages 4 - 8.
In making the decision to remove Tracy D. Cluck as counsel for the Relator, the
Respondent stated that the Respondent was not going to put M r. Cluck in a position
where he would feel like he was being ineffective. RR Vol. 1 Pages 11 - 12.
Specifically the trial court held:
" T HE C O U R T: I 'm not removing you because you've requested the additional
funds. What you're stating to the Court is that w i t h o ut those funds you don't
believe you can - you can provide effective assistance of counsel. That's
specifically ~
" M R. C L U C K: Well, what -
" T HE C O U R T: Hang on.
" M R. C L U C K: Go ahead. I 'm sorry.
" T HE C O U R T: That's specifically what you said and I want someone else to
look at this case."
R R V o l l P a g e l 2.
Later in the day the Respondent appointed Gary Prust as new counsel for the
Relator.
Summary Of The Argument on R e s p o n se to Issue No. i l.a. T he Respondent has the authority to remove appointed
counsel w h en the Respondent has made a finding of good cause that is entered on the record, l.b. Where the Respondent has authority to remove appointed
counsel for good cause that is entered on the record Mandamus w i ll not lie.
Relator complains that the Respondent did not have good cause to remove
Tracy D. Cluck as Relator's appointed counsel. However, M r. Cluck had expressed
to the Respondent his belief that he was unable to provide effective assistance of
counsel unless the Respondent granted the funds requested. The Respondent (a)
was not in the position of granting the funds requested due to the excessive nature
of the request, (b) was aware that none of the other three attorneys representing the
three co-defendants had expressed such an excessive request, ( c) had extensive
personal experience in representing clients acting in the role of a criminal defense
attorney for court appointed clients prior to being elected to the bench, and (d) was
sufficiently aware of the facts of the instant case to believe that the level of funds
requested was excessive. For these reasons the Respondent had concern that if the
excessive requests were not granted, M r. Cluck would move forward to trial of the
case under conditions that would create an appellate argument for ineffective
assistance of counsel and thus, potentially require a second trial at the expense of
judicial economy and the taxpayers of Burnet County.
Argument On R e s p o n se to i s s ue No. 1 1.1 Principals of Law
Where a person accused of a crime is indigent the trial court is obligated to
appoint competent counsel to represent the person. Tex. Code C r i m. Proc. Art.
26.04; U.S. Const, amend, VI and X I V; Thomas v. State, 550 S.W.2d 64, 68 (Tex.
C r i m. App. 1977).
Where counsel has been appointed to represent a person, the court has the
authority to remove and replace said appointed counsel if the court makes a fmding
of good cause that is entered on the record. Tex. Code C r i m. Proc. Art. 26.04 0
(2).
Mandamus relief is available only when the relator can establish two things: first,
that no other adequate remedy at law is available; and second, that the act he seeks
to compel is ministerial. Braxton v. Dunn, 803 S.W.2d 318, 320 ( T e x . C r i m A p p.
1991). An act is ministerial "when the law clearly spells out the duty to be
performed . .. w i th such certainty that nothing is left to the exercise of discretion or
judgment." Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420,424 (Tex.Crim A p p.
1981).
An attorney shall not knowingly make a misrepresentation of fact to the court.
Ex parte Billy Burl Clayton, 171 Tex. C r i m. 398; 350 S.W.2d 926 (Tex. C r i m. App.
1961); Tex. Disc. R. of P r of Cond. Rule 303 (a) (1).
1,2 Applicable Facts
In this case, M r. Cluck sought approval of the Respondent for additional funds
in an unusually large amount for a medical expert and for additional investigation.
RR V o l. 1 Page 4. In presenting his argument to the Respondent, M r. Cluck stated
that he w o u ld not be able to provide effective assistance of counsel, or at least was
concerned about his ability to do so, without the requested funds. RR Vol. 1 Pages
4 - 8. Expressing concern about M r. Cluck's apparent inability to provide the
Relator w i th the standard of representation required by law unless the request for
excessive funds was granted, the Respondent determined it necessary to remove M r.
Cluck as counsel for Relator and appoint other counsel. RR Vol. 1 Pages 1 1 - 1 2.
IJ Discussion and Conclusion
Whether mandamus should lie in this matter is determined on whether the
Respondent did or did not have good cause to remove Tracy D. Cluck as counsel for
the Relator in accordance w i th Tex. Code C r i m. Proc. Art. 26.04 (j) (2). If the
reasoning of the Respondent did not rise to the level of good cause then the
Respondent was without authority to remove M r. Cluck as Relator's counsel. Stotts
V. Wisser, 894 S.W.2d 366 (Tex. C r i m. App. 1995). Yet if the Respondent's
reasoning does constitute good cause then the relief of mandamus is not available.
Texas Dept. of Corrections v. Dalehite, supra.
The Respondent in this case had before it a clear statement of fact from M r.
Cluck that he would not be able to perform his duties to the standards required by
law unless the Respondent approved his request for funds. W i th this, the
Respondent had to choose one of two conclusions. Either M r. Cluck was
knowingly making a false statement of fact to the Respondent in order to coerce
funds from the Respondent, an action which would be in violation of Rule 303 (a)
(1) of the Rules of Disciplinary Conduct, or M r. Cluck's statement was true.
Considering that the Respondent did not take disciplinary action against M r. Cluck
for making a false statement to the court, it can be presumed that the Respondent
determined that M r. Cluck's statement about being unable to perform his duties to
the standards required by law unless the Respondent approved his request for funds
was true.
The findings of the Respondent on the record in this regard were made not only
from the direct statement of M r. Cluck but also from the fact that none of the
attorneys from the three co-defendants had informed the Respondent of similar
excessive needs in order to perform their jobs (RR Vol. 1 Pages 12 - 13) and from
the Respondent's o wn personal experiences in representing criminal clients in this
jurisdiction (RR Vol. 1 Page 13) and from what the Respondent then knew of the
facts of the case (RR Vol. 1 Page 13). Based on these findings the Respondent did
in fact act under the authority of Art. 26.04 (j) (2) in removing M r. Cluck for good
cause shown on the record for the protection of the rights of the Relator and as such
the relief of Mandamus is not available under these circumstances.
Summary Of The Argument on R e s p o n se to i s s ue No. 2 2,a, T he R e al Party in Interest neither joins nor opposes Issue
No. 2.
No argument is presented in favor or in opposition of Issue N o. 2.
Argument On R e s p o n se to issue No. 2 No argument is presented in favor or in opposition of Issue N o. 2. In as much
as this Court has entered an order temporarily staying the proceedings pending
resoludon of this complaint, the Real Party in Interest believes that a W r it of
Prohibition is duplicitous, unnecessary, and moot.
Prayer For Relief Wherefore, Real Party in Interest, Wiley B. "Sonny" McAfee, District Attorney,
prays the Court deny the relief requested by Relator and set aside the Court's order
staying further proceedings in the underlying cause.
Respectfully submitted, OFFICE OF D I S T R I CT A T T O R N EY 33^° and 424^^ J U D I C I AL D I S T R I C TS Wiley B. McAfee, District Attorney P. O. Box 725 Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 Assistant District Attorney State Bar N o. 03353500 g.bunyard@co.llano.tx.us A T T O R N EY F OR REAL PARTY IN I N T E R E ST W I L EY B. " S O N N Y" McAFEE C E R T I F I C A TE OF W O RD C O U NT This is to certify that the pertinent portion of this brief contains 1,582 words
printed in Aldine401 BT 14 font as determined by the WordPerfect X 7© word
count tool.
Assistant District Attorney *18 C E R T I F I C A TE OF S E R V I CE This is to certify that a true copy of the above and foregoing instrument, together
v^ith this proof of service hereof, has been forwarded by EServe and by email on the
3rd day of September 2015, to M r. Tracy D. Cluck, Attorney for Relator, at
tracy@tracyclucklaw.com, and by EServe .
u a r y ^. Bunyard Assistant District Attorney