Case Information

*1 April 24, 2015

Cathy S. Lusk, Clerk 12th Court of Appeals Suite 354 1517 W. Front Street Tyler, Texas 75702

13-15-0018-CR

RE: Michael Lynn Eaton Original Application for Writ of Mandamus From: 135th Judicial Dist. Court, Upshur County, TX. Cause no. 15074

Dear Court Clerk:

Enclosed with this cover letter, please find Relators Application for Writ of Mandamus (4 pages)

Please consider this an original application and open a file for same. Relator certifies that all parties subject to this application for Writ of Mandamus have been served with a copy of this application by U.S. mail.

If you have any questions or concerns please do not hesitate to contact me at the address or phone number listed below. I thank you in advance for your time and considerations in processing my application.

Sincerely,

Michael Lynn Eaton Relator, pro-se 1652213 Beto Unit 1391 PM 3328 Tennessee Colony, TX. 75080 (903) 928-2217

CC: Carolyn Parrot, Upshur County District Clerk Deanna Drennan, Court Reporter for Upshur County Upshur County District Attorneys Office file

*2

CAUSE NO. 12-15-00118-CR

MICHAEL LYNN BATON, Relator v.

115TH DISTRICT COURT OF UPSEUR COURTY, CAROLYN PARROTT, DISTRICT CLEEK DEANNA DRENNAN, COURT REPORTER, Respondents

In the 12th count of appals

12th count of Appals District

MAY - 5 705

APPLICATION FOR WRIT OF MANDAMIS

APPLICATION FOR WRIT OF MANDAMIS

To the hononable judces of the trellith court of appals: comes now, Michael Lynn Eaton, Relator and files this Application for Writ of Mandonus directing the Respondent sitting Judge of the 115th Judicial District Court of Upehur County, Texas to instruct/order the Respondent District Clerk and Court Reporter to choose one of teh three (3) methods offered to them to provide Relator with the copies of relators Records relating to his conviction in Cause no. 15074 along with a copy of the Transcript of the Plea Hearing in this cause of action, so that Relator can prepare and perfect hifis appeal of his conviction via an 11.07 Writ of habeas corpus.

I
JURISDICIION

The 12th court of Appals has exclusive and original jurisdiction over this Mandonus Petition pursuant to Art. 558 of the Texas Constitution and pursuent to the Texas government Code $\$24.007$ and 24.309 .

II
HISTORY OF PREVIOUS REQUESTS / EXHAUSTION OF REMEDIES

1. On August 31, 2012, the Upehur County Clerks office referred Relator to contact the Court Reporter to request a copy of his Court Transcripts.
2. On February 19, 2013, Relator requested a page and cost summary from the Upehur County District Clerk and Court Reporter.
3. On March 26, 2013, Relator submitted a follow-up letter to the Upehur County District Clerk after receiving no response from either office.
4. On April 15, 2013, the District Clerk cited a 1.00 per page cost for copies and again referred Relator to contact the Court Reporter.
5. On April 21, 2013, Relator submitted (again) letters to both the District Clerk and the Court Reporter requesting a page and cost summary (ie to provide the number of pages and costs per document),
6. On May 6, 2013, Respondent, District Clerk again quoted the 1.00 per page cost but again failed to provide the page count or summary requested by Relator. Again the Court Reporter failed to respond to Relators request.
7. On May 22, 2013, Relator once again clearly pointed out to the District Clerk that he needed a page and cost summary and needed this "total" in order to affect a withdrew from his Innate Turat Fund Account.

*3

1. On July 8, 2013, after further inquiry was not regponded to, filed objection to the clerk and Reporter fees in motion form along with an attached affidavit of inability to pay costs (In Form Pauperis). No response was made by either the District Clerk or the Court Reporter. The motion was not heard.
2. On December 23, 2013, after researching the options I had, prepared and submitted an application for writ of Mandemus, including six exhibits and mailed same to the 115 th District Court and sending copies to the Qjehur County District Attorneys office and the District Clerk. My Mandemus was refused by the District Clerk, and thus was never heard or considered.
3. On September 26, 2014, again after additional research and consultation, and again after no responses by the District Clerk/Court Reporter or rulings by the Court, Relator again sent his "proposed" three options for the Clerk to choose from so as to provide Relator with his requested copies of Records and Transcripts. The options were 1: A personal copy (free), 2: a copy on loan, or 3: to pay .10 per page for copies.
4. On October 14, 2014, Relator received his FIRST response from the court Reporter. The Court Reporter did not "choose" one of the three options, and provided Relator with an "estimated cost of $\$2,000.00$ " for the Court Reporters record without a page or cost ausuary or any page counts. The Clerk did not respond to Relators request nor choose any of the three options. It does not appear that Relators In Form Pauperis was processed.
5. On January 8, 2015, Relator filed formal motions in the Trial Court one motion titled "Motion Requesting Preservation of Evidence" and the second titled "Motion Requesting Transcripts". Relator sent copies to the District Clerk, the Court Reporter, and to the District Attorneys office. Relator formally requested that his motions be brought before the Court and that a BEARING be held to consider and rule upon his motions. Relator did not receive a reply from the Clerk or Court Reporter. No hearing was ever scheduled or held on his motions.
6. On March 20, 2015, Relator prepared and sent a letter directly to the Judge of the 115th Judicial District Court, the Honorable Lauren Parish, requesting that the Judge look into and inquire as to why Relator was not getting the copies necessary for his Appeal and as to what the problem was for the Clerk or Court Reporter in choosing one of the three options. No response was received from the Judge by the Relator. The Relator has heard nothing further from the Court Clerk or Court Reporter. No hearing has been held.

III
ARGUMENT AND AUTHORITIES

Pursuant to Texas government Code $\$52.047$ , it states (a) "A person may apply for a transcript of teh evidence in a case reported by an official court reporter. The person must apply for the transcript to the official court reporter. The official court reporter SHALL furnish the transcript to the person 'no later than the 120th day after the date the: 1) application for the transcript is received by the reporter; and 2) transcript fee is paid 'or the person establishes indigency as provided by rule 20 of the Texas Rules of Appellate Procedure.' Relator fully complied with TRAP Rule 20 and has submitted his application to proceed in Form Pauperis. Relators claim of indigence has not been contested. The District Clerk appears not to have complied with TRAP Rule 20 and has not sent a copy of his

*4 In Forma Pauperis to the Court Reporter (based upon her response to yuote Relator a cost of $\$2,000.00$ for his Court Records)(Id. 91 herein). Since the Respondents have not timely filed a contest to Relators In Forma Pauperis Application, Relators allegations of Indigence "will be deemed true" and Relator "will be allowed to proceed without advance payment of costs". TRAP Rule 20. See also TRAP Rules 40(a)(3) and 53(j). Relator has made a prima facie showing of Indigence. Hornoby v. State, 65 SW3d 801 (Tx. 2001) See also: Rofatridge v. State, 309 SW3d 1 (TCA 2010). "An Indigent criminal defendant has the constitutional right to a free appellate record in his first appeal of right" quoting Scott v. State, 60 SW3d 184 (2003). (App. 10 2003), See also: Turner v. State, 71 SW3d 928 (App. 10 2001)(USCA anend, 14) "Trial court Judge had authority to hold hearing on defendants motion for a free reporters record" TRAP Rule 20.2. quoting Spariman v. State, 55 SW3d 625. According to Spariman Relator must request Record from Court Reporter and request a hearing on his application. Relator has complied with both requirements. It is well settled and "there is no question that an indigent defendant is entitled to a free transcription of prior proceedings for an effective defense or appeal." quoting Lawson v. State, 696 SW2d 828 (Tx.App. 13 1995)/ See also: Britt v. North Carolina, 92 Sct. 431,433 (1971), Griffin v. Illinois, 76 Sct 565, Billie v. State, 605 SN2d 556,565 (TCA 1980), and Armour v. State, 606 SW2d 891,893 (TCA 1980).

In the case of White v. State, 828 SW2d 15 (App 6 1990) this Texas Appellate Court cited Britt where the U.S. Supreme Court identified two factors in the establishing of a need for transcripts and records. They said that 1) the value of the transcript of the former trial to the defendant in connection with the Appeal or trial for which it is sought, and 2) the availability of alternative devices that would fulfill the same function as the transcript Britt 8434. Britt made it clear that it will be assumed that the transcript is of value and the "State bears the burden of disproving either of the above mentioned factors."

Appellant states for the record that he has no other means of obtaining the documents, records, and transcripts but through the Clerk and Court Reporter. Relator has provided three options to chose from to provide the documents he requests, including a reduced fee which Relator, even though he is indigent, has ayreed to pay. Relator, at the least believes he has met the burden to be excused by statute from paying these fees by virtue of his affidavit of Indigency. See: In re Lee Children, 36 SW3d 702 (App. 10 2001) Relator believes that the denial of his requests represents an unreasonable interference with his right to pursue hai appeal and his access to the courts. (Tx. Const. Art 1§13), (USCA Anend. 1). See: Dallas County v. Sweltser, 881 SW2d 757 (App. 5 1994). Relator will be filling his request for leave to Appeal with his Habeas Corpus.

*5

RELIEF REÇUESTED / PRAYER

WHEREFORE PRENESIS CONSIDERED, Relator, Michael Lynn Eaton PRAYS that this Honorable Court of Appeal GRANT has application for writ of Nandamus by virtue of the facts and arguments contained herein, that they agree that Relator has no other renedy at law to compel the Trial Court to perform a ministerial function to provide him with the papers to prosecute his appeal and that this Court ORDER the Trial Court, District Clerk, and Court Reporter to choose one of three options offered by Relator and forthwith provide him with the copies he has requested.

Respectfully submitted,

Michael Lynn Eaton Relator, Pro-se 1652213 Beto Unit 1391 PM 3328 Tennessee Colony, Tx. 75880 (903) $928-2217$

UNEWORN DECLARATION

I, Micheel Eaton, do hereby swear under the penalty of perjury that the facts and statements made herein are true and correct.

Sworn and signed on this the 4 day of May, 2015, Michael Lynn Eaton

CERTIFICATE OF SERVICE

I, Michael Eaton, do hereby certify that I placed a copy of this "Mandamus" into a proper wrepper with sufficient pre-peid U.S. first class postage afzixed, and adressed same to the parties listed here below and placed same into the available mailing system used for such legal mail. Certified on this the 4 day of May, 2015. Michael Lytn Eaton

SENT TO: CATHY S. LUSK, CLERK TWELFTH COURT OF APPEALS SUITE 354, 1517 W. PRONT STREET, TYLER, TEXAS 75702 CAROLYN PARROTT, DISTRICT CLERK AND DEANNA DRENNAN, COURT REPORTER 115TH JUDICIAL DISTRICT COURT OF UPEHUR COURTY 405 E. TITUS STREET, FC BOX 1052 CILHRE, TEXAS 75644-1052 UPSHUR COUNTY DISTRICT ATTORNEYS OFFICE, 115TH JUDICIAL DISTRICT COURY 405 E. TITUS STREET, CILMER, TEXAS 75644-1052 cc: file