Case Information
*0 RECEIVED COURT OF CRIMINAL APPEALS 2/3/2015 ABEL ACOSTA, CLERK *1 WR-82,807-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/2/2015 4:35:02 PM Accepted 2/3/2015 3:44:40 PM ABEL ACOSTA CLERK N0. ______________
IN THE TEXAS COURT OF CRIMINAL APPEALS IN RE JUSTIN TODD VALDEZ, PETITIONER FROM CALDWELL COUNTY COURT AT LAW CRIMINAL ACTION NO. 41070
HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING MOTION FOR LEAVE TO FILE
ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS
To the Honorable Court of Criminal Appeals:
Now comes JUSTIN TODD VALDEZ, Petitioner, and pursuant to
Rule 72.1, Texas Rules of Appellate Procedure, requests leave of this
Honorable Court to file an Original Petition for Writ of Habeas Corpus and
in support of same would show the following: Petitioner was charged by information with the Class A Misdemeanor
offense of assault. On October 8, 2011, Petitioner appeared pro se and pled nolo
contendere to the charged offense and was placed on community
supervision.
3. On October 28, 2011, Petitioner appeared with retained counsel and
the trial judge conducted a hearing on Petitioner’s motion for new
trial.
4. On December 9, 2011, the trial judge denied the motion for new trial.
5. Petitioner gave timely notice of appeal.
6. On August 29, 2014, the Third Court of Appeals affirmed the trial
court’s judgment. Valdez v. State , No. 03-12-00098-CR, 2014 WL
4362949 (Tex. App.—Austin Aug. 29, 2014) (mem. op., not
designated for publication).
7. The Court of Criminal Appeals granted Petitioner until December 11,
2014, to file a petition for discretionary review (PDR).
8. Counsel for Petitioner miscalendared the date the PDR was due,
erroneously believing it was due on or before January 24, 2015. When the actual due date passed, the Third Court of Appeals notified
counsel for Petitioner of the issuance of its mandate of affirmance. Due to counsel’s error, Petitioner has been denied his opportunity to
file a PDR in this case.
11. Counsel has spoken to the Honorable Fred Weber, the Caldwell
County District Attorney. Weber agrees that Petitioner is entitled to
the opportunity to file a PDR.
12. Errors related to misdemeanors are normally corrected via Articles
11.072 or 11.08 of the Texas Code of Criminal Procedure. Ex parte
Wilson , 956 S.W.2d 25 (Tex. Crim. App. 1997).
13. However, those remedies are not available because a misdemeanor
trial judge does not have the authority to order the Court of Criminal
Appeals to permit the filing of an out-of-time PDR. Consequently, the only remedy available is an Original Writ of
Habeas Corpus. Petitioner prays that this Honorable Court will grant days leave to file
an Original Petition for Writ of Habeas Corpus, and allow Petitioner
ten (10) in which to file same.
Respectfully submitted,
_________________________________
CHARLES F. BAIRD
TBA # 00000045
BAIRD FARRELLY, PLLC
2312 Western Trails Blvd, Suite 102-A
Austin, TX 78745-1677
Tel: 512.804-5911
Fax: 512.804-5919
Email: jcfbaird@gmail.com
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing MOTION FOR LEAVE
TO FILE ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS
was served electronically on Fred Weber, Caldwell County District
Attorney, on 2/2/15.
______________________________
Charles F. Baird
No. ______________
IN THE TEXAS COURT OF CRIMINAL APPEALS IN RE JUSTIN TODD VALDEZ, PETITIONER FROM CALDWELL COUNTY COURT AT LAW CRIMINAL ACTION NO. 41070
HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING ORDER ON MOTION FOR LEAVE TO FILE ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS
On this the ______day of February, 2015, the Court considered
Petitioner’s Motion for Leave to File Original Petition for Writ of Habeas
Corpus. It appears to the Court that said motion should be granted.
Accordingly, it is ordered that Petitioner's Motion for Leave to File
Original Petition for Writ of Habeas Corpus is granted and Petitioner is
given leave to file an Original Petition for Writ Habeas Corpus and same
shall be filed within ten (10) days from the granting of this Motion.
______________________________ Judge Presiding
[1] On November 24, 2014, Petitioner requested 60 days to file the PDR.