Case Information

*1 CAUSE NO. 1087158-B

IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS

ETHAN WAYNE HORTON

REALTOR

v.

KRISTIN M. GULNEY

RESPONDENT THE 179th. DISTRICT COURT

OF

BARRIS COUNTY I TEXAS P E T I T I 0 N F 0 R W R I T 0 F M A N D A M U S RECEIVED IN

COURT OF CRIMINAL APPEALS RESPECTFULLY SUBMITTED

FEB 27 2015 ETHAN WAYNE HORTON TDCJ ID#: 1459524 H. H. COFFIELD UNIT 2661 f.m. 2054 TENNESSEE COLONY, TEXAS *2 CAUSE NO. 1087158-B

IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS

ETHAN WAYNE HORTON, REALTOR

v.

JUDGE KRISTIN M. GULNEY

PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUDGE OF THE COURT OF CRIMINAL APPEALS:

NOW COMES, ETHAN WAYNE HORTON, REALTOR, PRO SE AND FILE THIS PETITION FOR WRIT OF MANDAMUS ORDERING THE 179th DISTRICT COURT OF HARRIS COUNTY, .L TEXAS TO ANSWER RELATORS STATE WRIT OF HABEAS CORPUS AS REQUIRED BY ~aE 11.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE, AND ARTICLE 1, SECTION 12 OF THE TEXAS CONSTITUTION, ·AND THE FIRST AMENDMENT UNDER THE ~UNITED STATES CONSTITUTION IN SUPPORT THEREOF, RELATOR WILL SHOW THIS HONORABLE COURT THE FOLLOWING:

I

JURISDICTION ON SEPTEMBER 19, 2007 RELATOR PLEAD GUILTY TO AGGRAVATED ROBBERY IN CAUSE NO. 1087158 AND WAS SENTENCED TO TWENTY(20) YEARS CONFINEMENT IN .. TEXAS \ DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION, BY ~HE~ 179th DISTRICT COURT OF HARRIS COUNTY, TX. RELATOR FILED A WRIT OF HABEAS CORPUS, CAUSE NO. 1087158-B ON FEBRUARY 14, 2013. ARTICLE 11.07 OF TEXAS CODE OF CRIMINAL PROCEDURE AFFORDS THE STATE 15 DAYS IN WHICH TO ANSWER APPLICATION. AFTER HAVING BEEN SERVED WITH SAID APPLICATION, AFTER 15 DAYS ALLOWED TO THE STATE TO ANSWER THE APPLICATION, THE COURT HAS 20 DAYS IN WHICH IT MAY ORDER THE *3 DESIGNATION OF ISSUES TO BE RESOLVED IF ANY.

IF THE COURT HAS NOT ENTERED AN ORDER DESIGNATING ISSUES TO BE RESOLVED WITHIN 35 DAYS THE STATE HAVING BEEN SERVED WITH THE APPLICATION, THE APP- LICATION WILL BE FORWARDED TO THE COURT OF CRIMINAL APPEALS FOR THEIR CONSI- DERATION PURSUANT TO ARTICLE 11.07 SEC. 3(c) OF TEXAS CODE OF CRIMINAL PROC- EDUCRE. THEREFORE, THIS COURT HAS JURISDICTION OVER THE :~ MATTER AND PARTIES OF THIS PETITION.

II.

ON SEPTEMBER 19, 2007, THE RELATOR PLEAD GUILTY TO THE FELONY OFFENSE OF AGGRAVATED -RD:BBERY IN CAUSE NUMBER 1087158 :CTHE PRIMARY CASE), AND WAS SENTENCED TO TWENTY (20) YEARS CONFINE- MENT IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION, BY THE 179th. DISTRICT COURT OF HARRIS COUNTY, TEXAS. RELATOR APPEALED AUGUST 12, 2011, AND CASE BEGAN IN THE 14th COURT OF APPEALS ON AUGUST 22, 2011, AND WAS DISMISSED ON SEP- TEMBER 22, 2011. CASE NUMBER 14-11 ·007 20-Cr, BECASUE IT WAS \ . ' NOT COMPLAINT WITH TEX. R. APP.P. 26-2 (a)(l), AND FURTHERMORE THE TRIAL COURT ENTERED A CERTIFICATION OF THE DEFENDANTS RIGHT TO APPEAL, IN WHICH THE COURT CERTIFIED THAT THIS IS A PLEA BARGIN CASE, AND DEFENDANT HAD NO RIGHT OF APPPEAL.

RELATOR FILED THE INSTANT APPLICATION FOR WRIT OF HABEAS CORPUS 1087158-A ON JANUARY 23, 2012, AS OF THAT DATE THE MANDATE HAD NOT YET BEEN ISSUED IN CONNECTION WITH RELATOR'S DIRECT APPEAL, *4 WHICH WAS ISSUED JANUARY 24, 2012, WHICH RESULTED IN DISMISSAL ON JULY 11, 2012 BECASUE THE~ RELATOR'S APPEAL CASE WAS STILL PENDING. EX PARTE HORTON WR 77, 627-01 (TEX. CRIM. APP. 2012).

III.

PROCEDURAL HISTORY

ON SEPTEMBER 19, 2007, RELATOR PLEAD GUILTY TO AGGRAVATED ROBBERY

AND WAS SENTENCED TO TWENTY (20) YEARS TEXAS DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION. FEBRUARY 14, 2013 REL- ATOR FILED A WRIT OF HABEAS CORPUS, CAUSE NO. 1087158-B, SEEKING RELIEF IN HIS FIRST GROUND BY CLAIMING THAT HIS PLEA WAS INVO- LUNTARY BECAUSE TRIAL COUNSEL COERCED HIM INTO ACCEPTING A PLEA BY CALLING THE RELATOR'S MOTHER WITHOUT HIS PERMISSION WHO BEGGED HIM TO TAKE A PLEA OF TWENTY (20) YEARS, OR THE STRESS WOULD KILL HER. RELATOR CLAIMS HE WANTED A JURY TRIAL, BUT THAT

OUT OF FEAR OF HARMING HIS MOTHER HE INVOLUNTARILY PLEAD GUILTY. IN RELATOR'S SECOND GROUND HE CLAIMS THAT HE WAS DENIED EFFECT- IVE ASSISTANCE OF COUNSEL AT HIS PLEA WHEN TRIAL COUNSEL, SUSAN JACOBSEN PERRET, COERCED THE RELATOR TO PLEAD GUILTY BY CALLING SYAING, "MOM MAKE HIM TAKE THE TWENTY THE RELATOR'S MOTHER YEARS".

STATE'S REPLY TO BOTH OF THE RELATOR'S ARGUMENTS WERE "NEVERTH ..V ELESS AND WITHOUT WAVING THE FOREGOING ARGUMENTS, TBE RESOLUTION OF THE CLAIM REQUIRES INFORMATION CONCERNING TRIAL COUNSEL'S *5 STRATEGIC DECISIONS, AND CONFIDENTIAL COMMUNICATIONS WITH THE APPLICANT. THEREFORE, THE STATE BELIEVES THAT FURTHER FACTUAL INVESTIGATION IS NECESSARY TO DETERMINE THE MERIT , IF ANY, TO THE APPLICANT'S INEFFECTIVE ASSISTANCE CLAIM." IN THE STATE'S AMENDED PROPOSED ORDER DESIGNATIING ISSUES AND FILING AFFIDAVIT, THE COURT ORDERED SUSAN JACOBSEN PERRET IN ORDER TO ASSIST IN RESOLVING ISSUES TO FILE AN AFFIDAVIT SUMMARI ZING HER ACTIONS AS COUNSEL FOR RELATOR IN THE PRIMARY CASE, CAUSE NUMBER 1087158 AND SPECIFICALLY RESPOND TO THE FOLLOWING: 1. PLEASE SUMMARIZE THE DISCUSSION~S) PERRET HAD WITH THE APPL-

ICANT REGARDING WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT A AGGRAVATED ROBBERY CONVICTION AND ANY ADVICE GIV- EN CONCERNING WHETHER TO GO TO TRIAL OR PLEAD GUILTY. PLEASE INCLUDE THE NUMBER AND NATURE OF ANY AND ALL "OFFFERS FROM THE STATE" CONVEYED TO THE APPLICANT, INCLUDING, BUT NOT LIMITED TO, ANY REDUCTIONS, ENHANCEMENTS, AND/OR ENHANCEMENT ABANDONMENTS DISCUSSED, IF APPLICABLE.

2. THE APPLICANT CLAIMS " .... HIS TRIAL ATTORNEY, SUSAN JACOBSEN

PERRET; HAD EX PARTE COMMUNICATION WITH DEFENDANTS MOTHER, WHERE SHE BY THIRD PARTY COERCION AND MANIPULATIVE LAWYER TACTICS, TOLD DEFENDANT'S MOTHER IF HE DID NOT TAKE A TWENTY (20) YEAR PLEA, HE WOULD RECEIVE A LIFE SENTENCE;" AND THAT "ATTORNEY PERRET WENT FURTHER ON TO PERSUADE THE APPLLEANTS MOTHER SAYING, "MOM, MAKE HIM TAKE THE TWENTY." [SIC]. PLEASE RESPOND.

3. PLEASE DESCRIBE THE MANNER AND THE DEGREE TO WHICH PERRET

REVIEWED THE PLEA PAPERS AND ADMONISHMENTS WITH THE APPLIC ANT; IF PERRET DOES NOT HAVE INDEPENDENT RECOLLECTION OF THE EVENT, PLEASE STATE WHAT PERRET'S USUAL A~D CUSTOMARY PRACTICE WAS AND ALSO STATE WHETHER PERRET HAS ANY REASON TO BELIEVE PERRET VARIED FROM THAT PRACTICE IN THIS PARTICU LAR CASE.

4. PLEASE STATE WHETHER PERRET BELIEVES THE APPLICANT'S PLEA

WAS KNOWINGLY AND VOLUNTARILY ENTERED. 5. PLEASE STATE WHETHER PERRET BELIEVED THE APPLICANT'S GUILTY

PLEA TO BE ADEQUATELY SUPPORTED BY THE EVIDENCE. 6. ACCORDING TO THE APPLICANT, THE STATE NEVER RECOVERED THE

DEADLY WEAPON IN THE: INSTANT CAUSE. PLEASE EXPLAIN HOW THE ABSENCE OF THE DEADLY WEAPON WOULD HAVE AFFECTED TRIAL AND WHETHER PERRET DISCUSSED THAT INFORMATION WITH APPLICANT. PLEASE ALSO EXPLAIN WHETHER PERRET BELIEVED THE INFORMATION ABOUT THE DEADLY WEAPON COULD BE EXCLUDED, IN LIGHT OF NO DEADLY WEAPON BEING RECOVERED.

FURTHERMORE, THE COURT DID ADOPT THE STATE'S PROPOSED ORDER FOR FILING AFFIDAVIT IN CAUSE NUMBER 1087158-B. SUSAN JACOBSEN PERRET WAS ORDERED TO FILE HER AFFIDAVIT WITH THE POST-CONVICT ION WRITS DIVISION OF THE DISTRICT CLERK'S OFFICE, 1201 FRANKLIN *7 THIRD FLOOR, HOUSTON, TEXAS 77002, WITHIN SIXTY(60) DAYS OF THE SIGNING OF THIS ORDER, WHICH WAS SIGNED AT 12:20 P.M. ON JUNE 19, 2013 BY JUDGE FRANK C. PRICE, PRESIDING JUDGE AT THAT TIME.

HEREBY THE COURT IS DAYS DELINQUENT IN NOT ANSWERING THE ORDER IT ISSUED, FROM THE SIGNING OF THIS DOCUM ENT. MOREOVER RELATOR HAS A CLEAR RIGHT TO HAVE ISSUES HEARD AND STAND BEFORE A MAGISTRATE TO RESOLVE SAID ISSUES PURSUANT TO ARTICLE 11.07 3 (b) (c) (d) OF THE TEXAS CODE OF CRIMINAL PROCEDURE. THUS RELATOR HAS A CLEAR RIGHT TO HAVE ISSUES RESOL VED.

THE COURT OF CRIMINAL APPEALS HAS HELD THAT MANDAMUS RELIEF MAY BE GRANTED IF THE RELATOR SHOWS: (1) THAT THE ACT SOUGHT TO BE COMEELLED IS PURELY MINSTERAL, AND (2) THAT THERE IS NO ADEQUATE REMEDY AT LAW. WINTERS V. PRESIDING JUDGE, 118 S.W. 3d 14 7 ;:(rEX. CRIM. APP. 2003), EX PARTE YBARRAY 149 S.W. 3d 147 (TEX. CRIM. APP. 2004).

IN CONCLUSION RELATOR HAS SHOWN -(1) TffAT IT IS THE MINSTERAL DUTY OF THE JUDGE OF THE 179~, DISTRICT COURT, HARRIS COUNTY, TEXAS TO UPHOLD THE ORDER OR SEEK ANOTHER REMEDY, AND (2) THAT THERE IS NO ADEQUATE REMEDY~ AT LAW TO APPEAL. RELATOR HAS FUR THER SHOWN THAT IT IS NECESSARY TO DETERMNINE THE RELATOR'S INEFFECTIVE ASSISTANCE CLAIM AND INVOLUNTARY PLEA CLAIM, PURSU ANT TO ARTICLE 11.07 3(b) (c) (d) OF THE TEXAS CODE OF CRIMINAL PROCEDURE. *8 RELIEF.

THUS RELATOR HAS MET ALL REQUIREMENTS FOR MANDAMUS IN CONCLUSION RELATOR RESPECTFULY REQUEST THAT THE COURT OF CRIMINAL APPEALS GRANTS HIS APPLICATION FOR WRIT OF MANDAMUS, AND DIRECT THE RESPONDENT, JUDGE KRISTIN M. GULNEY, TO UPHOLD HIS ADOPTED ORDER OF STATES AMENDED PROPOSED ORDER ISSUES AND FOR,·~ FILING AFFIDAVIT, OR .. :LET RELATOR APPEAR BEFORE MAGISTRATE AS REQUIRED BY'. LAW UNDER ARTICLE 11.07 TEXAS CODE OF CRIMINAL PROCEDURE AND THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

PRAYER WHEREFORE PREMISE CONSIDERED, RELATOR RESPECTFULLY PRAYS THAT THE HONORABLE COURT OF CRIMINAL APPEALS GRANTS THIS FOREGOING PETITION FOR WRIT OF MANDAMUS::.AND THERE AFTER DIRECT THE RESPON- DENT JUDGE KRISTIN M. GULNEY TO UPHOLD HIS ORDER OF STATES AME- NDED PROPOSED ORDER ISSUES AND FILING AFFIDAVIT, OR LET RELATOR APPEAR BEFORE MAGISTRATE AS REQUIRED BY LAW, ARTICLE 11.07 TEXAS CODE OF CRIMINAL PROCEDURE.

RESPECTFULLY SUBMITTED, !tkn~k

ETHAN Wk E HORTON COFFIELD UNIT 2661 f .m. 2054 TENNESSEE COLONY, TEXAS 75884 *9 CERTIFICATE OF SERVICE I, ETHAN WANYE HORTON, DO HEREBY CERTIFY THAT A TRUE AND CORRECT COPY OF THIS FOREGOING INSTRUMENT HAS BEEN SERVED UPON THE RESPONDENT ^[1] JUDGE KRISTIN M. GULNEY, 1201 FRANKLIN, HOUSTON, TEXAS 77210 ON THIS DAY OF FEBUARY 23, 2015.

SIGNATURE ~ WfL~ ~~~ TTHAN wAYNf'HoRTON · SWORN DECLARATION I, ETHAN WAYNE HORTON, TDCJ-ID NO. 1459524, RELATOR, PRO SE

DO HEREBY DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING STATE -MENTS ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF EXECUTED ON THIS 23rd DAY OF FEBUARY 2015.

. ~ ~~· .• fh:;;t;: SIGNATURE : ETHAN WAYNE HO N . RESPECTFULLY SUBMITTED ETHAN WAYNE HORTON 1459524

H.H. COFFIELD UNIT 2661 F.M. 2054 · TENNESSEE COLONY, TEXAS