UNDER ART.11.05 T.C.C.P.,ANY JUDGE OF THE COURT OF CRIMINAL APPEALS HAS THE POWER TO ISSUE THE WRIT OF HABEAS CORPUS:AS UNDER ART.11.07 $5,THE COURT OF CRIMINAL APPEALS "MAY DIRECT THAT THE CAUSE BE CHECKED AND HEARD AS THOUGH CRIMINALLY PRESENTED TO SAID COURT OR AS AN APPEAL".

YOUR HONOR HOLDS EXCLUSIVE DISCRETIONARY AUTHORITY TO REVIEW MATTERS RELATIVE TO VIOLATIONS OF CONSTITUTIONAL DUE PROCESS. IN EFFECT,ART.11.04 STATES THAT "EVERY PROVISION RELATING TO THE WRIT OF HABEAS CORPUS SHALL BE MOST FAVORABLY CONSTRUED IN ORDER TO GIVE EFFECT TO THE REMEDY, AND PROTECT THE RIGHTS OF THE PERSON SEEKING RELIEF UNDER IT". WITH THIS SAID, I RESPECTFULLY IMPLORE YOUR DISCRE ETIONAL AUTHORITY TO REVIEW, AND INTERVINE AS APPROPRIATE TO THE FOLLOWING: (QUOTING RULE 79.2(a) A MOTION FOR REHEARING AN ORDER THAT DENIES HABEAS CORPUS RELIEF UNDER CODE OF CRIMINAL PROCEDURE,ART. 11.07 UR 11.071, MAY NOT BE FILED. THE COURT ON ITS OWN INITIATIVE RECONSIDER THE CASE.-AMENDED JULY 12,2011,EFF.SEPT.11,2011-T.R.A.P.)

A WRIT OF HABEAS CORPUS UNDER ART.11.07 WAS FILED ON SEPT.18, 2012 (WRIT NO.WR-78,478-01). THE COURT OF CRIMINAL APPEALS DENIED WITHOUT WRITTEN ORDER:ON OCT.24,2012,AND A PETITION FOR REEONSIDERATIONEWABWSUBSEQUENTLY FILED ON NOV.15,2012 BUT WAS NOT ENTERTAINED ÊY THIS COURT.

THE GROUNDS WITHIN SAID WRIT ENTAILED, ONE:INEFFECTIVE ASSISATANCE OF COUNSEL: AND TWO:A VIOLATION OF APPLICABLE RULE OF LAW-21.9 TEXAS RULES OF COURT/RULES OF APPELLATE PROCEDURE.

ALTHOUGH THE STATE EXCERCISED THEIR RIGHT TO DENY THE APPLICATION UNDER THE AUTHORITY OF ART.11.07 $3(b), NO EXPLANATION OR REASON WAS GEVEN TO REJECT EITHER GROUND AS MERITLESS. THE APPLICANT SOUGHT TO EXCERCISE RIGHT TO A REMEDY OF LAW. ENTITTLED BY THE CONSTITUTIONAL B:OGHT TO DUE PROCESS, BUT THE REMEDY SOUGHT WITHIN THE 11.07 APPLICATION WAS MISTAKENLY OVERLOOKED. NO EXPLANATION RELATIVE TO THE RECOMENDATION OF THE STATE TO DENY EACH GROUND WAS GIVEN. ALTHOUGH APPLICANTS GROUND OF A VIOLATION TO RULE 21.9 HAD MERIT AS CONCURREB

*3 BY THE UNITED STAES DISTRICT COURT FO THE WESTERN DISTRICT(SEE ATTACHMENT A.) THE COURT OF CRIMINAL APPEALS FURTHER DENIED THE WRIT AND BASICALLY AFFIRMED THE TRIAL COURTS NEGLECT TO ADDRESS A A VALID CLAIM.

IT IS WITH THIS SUSTENANCE THAT THE APPLICANT RESPECTFULLY REQUESTS THAT YOUR HONOR TAKE APPRPRIATE DISCRETIONARY AUTHORITY TO REVIEW WRIT. APPLICANT SEEKS TO EXHAUST HIS RIGHTFUL REMEDY OF LAW AND SEEK RELIEF FOR A VIOLATION AGAINST HIS RIGHT OF DUE PROCESS. ALL IS WANTED IS THAT THE STATE ANSWER MY WRIT, AND GIVE SUPPORTING REASONS TO THEIR DENIED OF MY GROUNDS SO THAT I MAY SEEK RELIEF IN A HIGHER COURT. IN A PROPER EXAMINATION OF MY GROUNDS THIS HONORABLE COURT SHALL DETERMINE THAT THE TRIAL COURT ABUSED ITS DISCRETION IN DECLARING A MISTRIAL AS TO ITS ENTIRETY, WHEREAREAS, UNDER RULE 21.9 ADOPTED BY THIS HONORABLE COURT,RESENTENCING WAS THE APPROPRIATE RECOURSE AT LAW. APPLICANT PRAYS THAT YOUR HONOR CONSIDER THIS REQUEST.

*4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION

| JUAN MUNOZ, | § | | :--: | :--: | | TDCJ # 1467005, | § | | | § | | Petitioner, | § | | | § | | v. | § | | BRAD LIVINGSTON, | § | | Executive Director, Texas Department of | § | | Criminal Justice, | § | | Respondent. | § |

ORDER FOR RESPONDENT TO ANSWER

In a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Petitioner Juan Munoz ("Petitioner") challenges his convictions for three counts of aggravated sexual assault by a jury in an El Paso County state court. ^[1] Mindful of Petitioner's pro se status, ^[2] the Court understands him to assert that (1) the trial court erred when it declared a mistrial during the punishment phase of the trial and ordered a re-trial of the entire case, and (2) his appellate counsel provided constitutionally ineffective assistance when he failed to raise the trial court's error in declaring a mistrial during the punishment phase and ordering a re-trial of the entire case.

Upon review, the Court concludes that summary dismissal of the petition is not appropriate. Accordingly, the Court enters the following orders and advisories:

1. . Service on Respondent: The Court ORDERS the Clerk of this Court to serve a copy of the petition and this order upon counsel for Respondent, the Texas Attorney General. All documents shall be sent to the attention of the Chief, Postconviction Litigation Division. [^0] [^0]: ^[1] State v. Munoz, Cause Number 20060D04737 (210th Dist. Ct., El Paso Cnty. Tex., Sept. 25, 2007), aff'd, No. 08-07-00304-CR, 2010 WL 546676 (Tex. App.-El Paso, Feb. 17, 2010, pet. dism'd). ^[2] See Haines v. Kerner, 404 U.S. 519,520 (1972) (holding pro se pleadings to less stringent standards than formal pleadings drafted by lawyers); see also Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985) (explaining that liberal construction allows for active interpretation of a pro se pleading to encompass any allegation which may raise a claim for federal relief).