Case Information

*0 RECEIVED COURT OF CRIMINAL APPEALS 3/24/2015 ABEL ACOSTA, CLERK *1 WR-83,044-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/23/2015 3:21:17 PM Accepted 3/24/2015 2:47:40 PM Returnable to the Court of Criminal Appeals of Texas ABEL ACOSTA

CLERK Wr__________

In the 183rd District Court of Harris County, Texas

087941001010 - The State of Texas vs. GARCIA, RODRIGO

(Court 183)

WRIT COUNSEL’S MOTION TO THE COURT OF CRIMINAL APPEALS

FOR LEAVE TO SUPPLEMENT OR AMEND THE APPLICATION FOR

POST-CONVICTION WRIT OF HABEAS CORPUS, PURSUANT TO

TEX.CODE CRIM.P.art.11.07, AFTER TRANSCRIPTION OF

REPORTER’S NOTES (WRIT COUNSEL DID NOT TRY CASE. NO

APPEAL WAS TAKEN.)

* * * * * * * * * *

Larry Warner

Attorney at Law 3109 Banyan Circle Harlingen, Tx 78550 Phone (956)230-0361 Fax (866) 408-1968 State Bar of Texas #20871500 email: office@larrywarner.com website: larrywarner.com Bd.Cert.Crim.Law, TBLS (1983) Member of the Bar, Supreme Court of the United States(1984)

Attorney for Applicant *2

To the Honorable Presiding Judge and Associate Judges

of the Court of Criminal Appeals of Texas:

Applicant presents this Writ Counsel’s Motion to

the Court of Criminal Appeals for Leave to Supplement or

Amend the Application for Post-conviction Writ of Habeas

Corpus, Pursuant to Tex.Code Crim.P.art.11.07, after

Transcription of Reporter’s Notes, as follows:

1. Applicant has filed an application for post-

conviction writ of habeas corpus in the convicting court,

the 183 rd District Court of Harris County assailing the

noted conviction. It is pending.

2. Applicant is seeking to have the reporter’s notes

transcribed.

3. Writ Counsel did not try the case.

4. There was no appeal, so there is no reporter’s

record, yet.

5. Applicant seeks the leave of the Court of Criminal

Appeals to supplement or to amend his instated

application once the reporter’s record is complete.

6. This Court previously allowed litigants to file *3 “skeletal” applications when the Antiterrorism and

Effective Death Penalty Act had just begun to come into

force, so that the federal statute of limitations on

filing federal “motions to vacate sentence” (habeas

corpus) would be tolled. Subsequent amendments and

supplements were allowed to those “skeletal”

applications:

“[T}his Court's order of April 22, 1997... gave him permission to file a skeletal application so that the time limits of the federal Antiterrorism and Effective Death Penalty Act could be tolled.*** His motion and our order contemplated that the skeletal application would be supplemented, and our order specified, “Any supplemented application shall be deemed an original, not a successor, application.” Ex ParteSmith ,977 S.W.2d610fn1(Tex.Crim.App.,EnBanc 1998)

7. Applicant simply cites Smith to show that this

Court has indeed allowed supplementation of applications

for post-conviction habeas corpus. There is no question

here of the tolling of the federal statute of limitation

on “motions to vacate sentence” . Applicant, however,

does seek to avoid a claim of laches and files his

application before the reporter’s notes have been *4 transcribed.

The Court of Criminal Appeals should use its

discretion to allow supplementation or amendment of the

instant application for habeas corpus because the only

difference between Smith’s situation and Garcia’s is that

Smith knew exactly when time would run out and Garcia is

left with the ephemeral uncertainty of laches and is thus

impelled to file his application without the benefit of

a reporter’s record. See: “[T]he length of delay alone

will not constitute either unreasonableness of delay or

p r e j u d i c e . ” E x P a r t e C a r r i o , 9 9 2 S . W . 2 d

486,488hn2(Tex.Crim.App.1999) And more immediately: Ex

P a r t e P e r e z , 3 9 8 S . W . 2 d

206,212hn5(Tex.Crim.App.203)[common law rather than

federal standard of Carrio applies for laches]

Conclusion and request for relief The Court of Criminal Appeals should grant Applicant

leave to supplement or to amend his Application once the

reporter’s record is prepared. Smith was allowed an

opportunity to supplement a skeletal application to avoid *5 a statute of limitations. Garcia should be allowed to

supplement or amend, since he has filed before the record

is complete in order to avoid laches.

RESPECTFULLY SUBMITTED MARCH 23, 2015 BY:

/s/Larry Warner Larry Warner

Counsel for Defendant 3109 Banyan Circle Harlingen, Texas 78550 Phone (956)230-0361 Fax (866)408-1968 Email: Office@larrywarner.com Website: www.larrywarner.com Texas Bar#20871500;USDC,SDTX 1230; Member, Bar of the Supreme Court of the United States (1984) Board Certified, Criminal Law, Texas Board of Legal Specialization(1983) *6 Certificate of Service I sent a true copy of this Motion for Leave to Use

Civil Remedy in Habeas Corpus Proceeding and this Motion

to Produce Reporter's Notes of Trial to the Harris County

District Attorney Office at 1201 Franklin Street, Suite

600, Houston, Texas 77002-1923 by USPS on MARCH 23, 2015.

RESPECTFULLY SUBMITTED MARCH 23, 2015 BY:

/s/Larry Warner Larry Warner

Counsel for Rodrigo Garcia