Case Information
*1 MR. HICKS TRACY
2661 FM 2054
Tenn. Colony,Tx 75884
August I'L. 2015 1
HON. JOHN E. NEILL,RESPONDENT
18th JUDICIAL DISTRICT COURT RECEIVED
GUINN JUSTICE CENTER IN SUPREME COURT OF TEXAS 204 s. Buffalo Ave AUG 1 8.2015
Cleburne Tx 76033 BLAKE HAWTHORNE, Clerk BY Deputy HON. DALE HANNA,PROSECUTING ATTORNEY GUINN JUSTICE CENTER
204 s. Buffalo Ave,Ste 209
Cleburne Tx 76033
This document contains some pages that are of poor quality at the time of imaging.
Dear Clerk
Enclosed for filing with.the court is Relator's petitionfor writ of mandamus;Upon the filing of this petition please return a file marked copy for my records;A copy of this petition has been previously mailed to all interested parties.
SINCERELY
RECEIVED IN COURT OF CRIMINAL APPEALS AUG 18 2015 *2 • IN THE SUPREME COURT OF TEXAS
AT AUSTIN FILED IN SUPREME COURT OF TEXAS AUG 18 2015 IN RE TRACY HICKS BlAKE HAWTHORNE, Clerk ON PETITION FOR WRIT OF MANDAMUS BY PATRICK D. PASSMORE, Deputy TRIAL COURT CAUSE NUMBER 29450 FROM THE 18th DISTRICT COURT OF JOHNSON COUNTY,CLEBURNE TEXAS PETITION FOR WRIT OF MANDAMUS TRACY HICKS,RELATOR PRO-SE#673001 H.H. COFFIELD 2661 FM 2054 Tenn Colony~Tx 75884 RECEIVED IN COURT OF CRIMINAL APPEALS AUG 18 2015 ORAL ARGUMENT REQUESTED *3 IN THE SUPREME COURT OF TEXAS AT AUSTIN
IN RE TRACY HICKS
ON PETITION FOR WRIT OF MANDAMUS TRIAL COURT CASE NUMBER 29450 FROM THE 18th DISTRICT COURT OF JOHNSON COUNTY,CLEBURNE TEXAS TENTH COURT OF APPEALS NO.l0-15-00224-CR RELATOR'S MOTION FOR JUDICIAL NOTICE Relator,•rracy Hicks,Pro-Setfiles this his Motion Asking the court to Take Judicial Notice of the following facts in this case;
· 1. Relator originally filed this suit in the Tenth Court of Appeals;That Court
has misconstrued the petition as a request for a writ of habeas corpus,whereas Relator complains of respondents denial of right to speedy trial,and the Abuse Discretion on Trial Motions where the court could act only one way on said issue raised by the motion;Complains that respondents. failed completely to Analyze or Correctly Apply the laws as they apply to the facts of this case;Further,Relator ask this court to take judicial notice of the fact that relator has not been accorded the requested discovery in this matter,and respondents has clearly failed without cause,to turn over the requested trial records,and documents which are relevant toti1ese proceedings. Relator ask the court to take judicial notice of the fact that relator is greatly being prejudiced by the constitutional violations and the abuse of discretion committed by respondents during trial;See Issues 2-5 in this petition.
Relator Pray that the court will;Conditionally grant' the petition,and accord relator discovery in this matter.,and thereafter Grant a Hearing where these issues can be resolve according to law.
*4 IN THE· SUPREME COURT OF TEXAS ·-
AT AUSTIN
IN RE TRACY HICKS ON PETITION FOR WRIT OF MANDAMUS TRIAL COURT CAUSE NUMBER 29450 FROM THE 18th DISTRICT'COURT OF JOHNSON COUNTY,CLEBURNE TEXAS RELATOR'S MOTION FOR ENTRY OF LEVEL TWo)\ DISCOVERY PLAN
Relator,ask the tourt to Order that Discovery be conducted accord~bg to a level Two Discovery Control Plan~tailored to the circumstances of this suit,as permitted by the Texas Rules of Civil Procedures ,190.4;
INTRODUCTION Relator is Tracy Hicks,acting Pro-Se.,The Respondents are; Han. John E. Neill.,and Dale Hanna Prosecuting Attorney of Johnson County.
Relator filed this civil action,complaining of the respondents Abuse of Discretion on trial motions,and the failure to Am:llyze ur: correctly Apply the laws as they apply to the facts of the case.
Relator, ask this court,to allow discovery under Level Two control plan because;
A. There are r.elevant documents, and testimony within Respondents filesthat is important to the current claims final outcome,which would include BRADY Material; The Issues regarding this suit are Complex,and discovery,and a hearing at which both parties could argu€ their positions would be helpful to the court in any decision rendered by this court.
Relator,during any discovery allowed, would conduct all discovery according to ~he Texas Rules of Civil procedures,and the Rules of this court.,Texas Rules of Civil Procedures Rules 190-198.
SO MOVED AND PRAYED THAT RELATOR'S MOTION FOR DISCOVERY BE GRANTED. *5 NO.
IN RE
TRACY HICKS
RELATOR RELATOR"S PETITION FOR WRIT OF MANDAMUS
Relator, Tracy Hicks,Submits this petition for a writ of mandamus complaining of the Honorable John E. Neill,Presiding,Judge of the 18th District court of Johnson County,Texas.,Jud~e Neill,has a duty under the law to provide relator with a speedy trial and resoluti~nn of these issues as guaranteed by the Sixth and Fourteenth Amendment of the United States Constitution,and Article !.,section 10 of the Texas Constitution.
The Issues presented in this petition are complex,and would require discovery,therefore relator request that discovery be allowed to better assist the court in it's decision,and to clerify relator's contentions. IN RE TRACY HICKS MANDAMUS [1] *6 p • l
~Ott. • •·• • ~ • • • • • • • • • • • •" • • • • • .. • • • • • • •.• • • • .... • • • • • • • • • • • ••·• • •PAGit1 tllble Of ·COntents ••••••••••••••••••••••••••••••••••• · •••••••••••••• tAG&:, 11 lOINTITY Or PARTIES & COUNSBt••••••••••••••••••••••••••••••••••••••p&ge,l INO~ Olf Atrl'HORI~·••,••••·•~··••••••••••••••••••••••:····•••••••••PAGE~2,3,A,B,C ·STA~. OP 'lHB CASE ••••••• • • •••.• • •• • •., •• •. • •• • ~ • ••• • • ••• • • •• •••• PAG8,4 ..
STA~ OF JURISDIC1'ION. •• • •• •••• ••• • ••••.• ••• • ••• ••• •• ••. • • ••• •• PAG8,5 IS$U!tS ~· • .. ~ ••••••••••• • •• • •• • •·• ••. •. • •• ••. •••. •• •• • • •• • • .pAQB,6,7 STA~ Ot.FAC'J.'S ............................. .-.................... pAQS,7,8 ~· .~ ~IBS•· • • • •. • • • ••.• • • •••••••• • • •·•. • ••• •. •. • •. • •• PAGE 9-25 . . . ' the Unit~ ~t.atea Conetitutton,to move the prosecution
f()rvard, ·ana br:i"9 the def&ndant to trial. PR.i\YD~ •• ~ .. -: •.•• ·• ~ • .......... ~ • ••••••••• • ••••••• • • •. ~ ••••••• • • • • • ••• PACIS ,25 CBR'.t'Ii'lCATS. Ci1! SIRVICi:. • ......... • ..... • • •• • ••• • •••• • •• • •••• • .......... PAOEr.26 ii ··: ~ I • .:~ •
1, .. I l.
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TRACY HICKS, . . . ' . ..
·Reiat~ 'certif~u that tM following ia a complete list
. ' . . ' . of the pal-ties; the attorneY'• •and any other person Who hu . . . .· ··. -· ' . . . : any interest in the outcome of this petition.
·' · . ; . . : ·:·>. ·.:.:·
H .i. doftoiBLo UNIT
2661 FM 2054
Tennesaee CoJony, 1'X ·· 75884
(903)9,28-2211 J
REJspondent
18th Diatriet COUrt
Guinn JWJtice Center
204 s. Buffalo Ave
ClebUme Tx 760331
Q.linn Juat1ce. Center:
204 s. Buffalo AVe Ste 209
Clebume Tx 76033
:.\.<-_._ PAGI 1 XN ItS TRACY. HI~·, *8 :~.· ·;,"
• • > l •·
[0] ! o'F INDEX AUTHORITIES "
Barker v. Wingo, ~07 u.s~ 514 (l972).; ••••••••••••••••••• ~····•·••••••••Pagei9,10,ll Cantu v State,
253 s . .'w~~ 3d 273(1'ex.Crim.App. 2008) •••••••••••••••••••• page:lO ~Pillingham v State,
·'4a3 -u.s· •. 64 (1975) ~ ••••• • ••••••• •·· •••••••• ~ ·•··• ••••••• Page, to Bai.·ril! v State,
· 489 s.w. 2q ·303 (Tex. Crim. App .. 1973) ......... ~ •· ... • ..... Pag&,l.i . Hull v State,
699 s.w. 2d 220 (Tex.Crbi. App. 1985) . . . . . . . . . . . . . . . . . . Page,9 Moreau v···faa .. lx ref i
271 S.W.t_379 (Tex. l925)••••••••••••••••••••·····••••••••Page,9_ •... ·· Perkin~-~ -State,
504 s.·w·· 458 (Tex. Crim. App. 1975) ............ • •••••••• •»age,lO Smith v Hooey, . . . . . ' 393· u.-s. 374 (1969) •••••••••••••••••••••••••••••••••••• Pa:_ge,9-,ll,l2 Taylor,Bx Part,e,
522 s.w. ~d479 (Tex.Crim. App. 1975) •••••••••••••••••• Pagel0 Turner v State,
· 545 s.w. 2d 133(Te-x .. Crim.App.1976) ...................... Page9,ll,l2 u.s. v Mari~n~
404 u.s. 307 (197l) •••••••••••••••••• ~··········~··•·••Pag~,l0 Wilson v BOwman,
381 s.w. 2d 320 (Tex.1.64)•••••••••••••••••~•••••••••••Page,11 IN RE TRACY HICKS-MANDAMUS Page 2 *9 l . l- l l
INDEX OF AUTHORITIES
tallirts y State,
7~0 s.w. 2d 176 (Tex.Crim. App. 1986) ••••••• ~····•••••••Page,l3,14 Cro~~lin ~ State,
90 Tex ~r.R.467,235 s.W.905,906(192l) ..................... Pagel4 In R8Gonzale1J,
115 5•W•. 3d 36(Tex.App.san Antonio 200:3) •••• •. :~ •••••••• • Page,i4 · Prudenti~1:Ins,Co•Of.Am,
148 s~.w: 3d l24,135-36('l'ex •• 2004) ••••••••••••••••••••••• Page,l4 Walkez: v Paeke.r,
.. 827 s~w. 2d833,839 (Tex. l992) •••••••••••••••••••••••••• Page,l4
Repu6lic:an Party .v Dietz,
940 s.w. ad 86,94(Tex~l997)••••••••••••••••••••••••••••••age,l4 Dobec~a . v . State, .
. (App.S' Dist, 2003) 2003WL 194711 ,~ ...................... Page,l6 JohnsOn v State,
629 s.w.- 2d l37('1'ex.At>P·Dallas)~ ................. ~ ....................... Page,l6 Lanum v State, ·.1 952 s.w. 2d 36 {Tex.erim.App. 19 ) ••••••••• •.•. • •••••••••••••••••••• Page,l4 · . · .. . . .
liughes v st~te, ~ s.w. ·24· 248,PDR.,833 s.w. 2d 137(Tex. Crim. App. 19 ) •••••••••• Page 1 16 Martinez v State,
;53 s~w. 24 804,~ ~- Qmbsd;z:ev,981 s.w.~cras 1973,631:cJ · le:a •. ,z;.€83,~~1· • ~ " •• • ••• • · •.• · ••••••••••••••• · •••• ~ ••••. ;~ -~~~ •••• ., ...... ~ .l;lage, 16 \ .. . !
IN RE tU' ProduCts North America, Inc, '' . . IAlJO . 244 s.w.3d l.ii('lex• •) ••.••••• •.• ...................................... Page,l6· -v-,
Gas s.w. 2d 47(1'ex.erim. App· 19 ) •••••••••••••••••.•• , ••••.. • ••••• o ••• Pase,l6 *10 'a· ' ~ ). l
INDEX OF AUTHORITIES
French v B.stelle,
692 F.2(S1021,(5th Cir. 1982)•••••••••••••••••••••••••••••••••••••••••Page,18,21 175 s.w. 3ds0o(Tex. App. Beaumont 200S) •••• ~ •••••••• ~ ••••••••••••••••• Page 18. Strickland v waBhington,
466 u.s •. 668,104 s.ct. 2052,2064,80 t.Ed.2d.674(198~U ................. •Pa<.;~e,l8,19,20 Mitchelle.V State,
68 s.w. 3d 640,647(1'ex. Crim•AtlP• 2002) •••••••••••••••••••••••••••••• Page,l8,2l "l',, Bone V State,
77 s.w. Jd 8.28,833(Tex. Crim~ App. 2002) •••••••• •• •· •• • ~~ ••••••••••••• •Page~lf FlCMtra VState,
133 s.w. 3d 853,856 (Tex. App .. Beaumont,2004 No pet,citing Hernandes v sta.t«t' 988 s.w.· 2d 770,772(Tex. Crim. App. 1999)•••••••·•~··••••••••••••••••••••Page,l9 Andrews v State,.
159 s.;;w., 2d 981,982(Tex.Crim. App. 2005) •••••••••• • •••••••••• •• •• · ••••• P~Age,19 Glorieo V S~te,
(Cr .. App. 1988)637 s.w. 2d 483 s.w. 2CI 454 .................. ~ ••••••••••• Page,l9, Diremigo v State,
(Cr. App. 1982·)~37 s.w. 2d 926 •••••••••••••••••••••••••••••••••••••••• llage,l9: Smith v state,
lS8 s.w. 3d 463,465(Tex. erim. App. 200) •••••••••••••••••••••••••••••• Page,20 Bx Parte J<>rdan•
(er. App• 1994)879 s.w. 2d 6l ••••••••••••••••••••••••••••••••••••••••• Page,20 Bill V ·r.o¢ctwt,
106 S•Ct 366(19 ) ••• :. •• ••• • • • • • •. •. • • • •• • • •. • • • • • • • • • • • • • • • • • • • • • • • • • .Page,21 . .
Bullard v iatelle ~ . . . . . ·. 708 F •. 2d 1021(1980)· •• • ••• • •• •• .~ •• • • •• • • ••• •• • • • • •. • • • • • • •·••• • • • • • • • .,Pag~21~ Jackson v Virginia, .
u.s. s.ct.99,2781,443 u.s. 307,61 t.r.a.2d. 56Q,r~.a.n-looet. 19S,444,u.s.s90, 62 ·t.F.d. Jd. 126 ••••••••.••••••••••••••••••••••.• _ ••••••••••••.•.••••••••••• •l?l!l9~ .. ·'21 Page 3A IN RE TRACY ·SICKS-MANDAMIJS· *11 ~; -~' ··: .. :·:'.1, ..... .. ;.;.·:.;:.:: · ... ' .::,
. {~ j l------------~----·~"----------~'----------------------~------------------
___ v_,695 s.w. 2d 479 (Tex. Crim. Aw• ~9. I ) • • • • • • • ~ . . . . . . . . . 4 • • • • • •· . . . . . . -P~g~ _v_,244 s.w. 3d .840 Tex.· App. 200 ) .................. • ••••••••••••••••• Page,22 :IN Re Chevron,u.s.A.,Inc c!A,l
,109 F •. 3d l016(CA.,Tex. 1997) ........... ~ •••••••••••••• ~···················Page2.2 EX Parte Fortune, · , 797 s.w •. 2d 929 (Ter. .. Crim. App. 198 ) .................................... Pa9e·,22 Elder V State,
132 s.w. 34 ;20 .:(TeX. App.Fort Worth 2004) ••••••••••••••••••• • •••••••••• Page,2~ United States V Dixon,
509 u.$. §88,689,113 s.ct. 2849,2855,125 t. EQ. 2d 556 (1993) ........... Page,23 .
Brown V Ohio,
432 u .. s .. l61,169,97 s.ct. 2221, 53 t.Ed. 2d 187 (1977) ................... Pa9e /23,24 Parish V State,
~9 s .. w .. 2d 352,354 (TeX. Crim. App.l999) .............................. page,2l,25 Ochoa V State,.
982 s.w .. 2d 9041 908 (Tex Crim. App• 1988) •••••••••••••••••••••• ., •••••• Page.~3-:24 Cunningham V St~te,
726 s.w A 2d 151 ,('l'ex .. Crim. App. 1987) ............................ •. •• • • • .Pag.e; 24 Demoss V State,
12 s.w. 3d 533,561 (Te~ .. Aw• san Antonio,1999 pet rrafused .............. page,24 Blocllburger,
284 u.s •. at 304,. 52 s·,ct •. 180 ............................................. ·Pfl9e,:~
STA'l'OTES Chapter 3.04(-)Tex •. Penal Code.Vernon's Ann· Tex.Code Crim.Proc.,Article 21.24 -rex. Code Crim. Pr:oc.,Article 22.011,21.11
'l'ex. COde :c;rim.Proc· ,Art.26.13(a) . .
Tex. Penal COde Ann. ·l2.42(b)(c)vernon•s .1974);
'.rex· Conat.Articles,l§lO,l§l3,1§14;Art.S§67Tex .. Gov,t Code 22.222(a) u.s .. ConStitutional Amei1dments lst,Sth,8thl6th,l4th
PA<:;B 3B *12 STATEMENT OF THE CASE
Relator seeks a writ of mandamus from this .court compelling Judge John E.Neill of the 18th District Court of Johnson County texas,to bring relator to a speedy trial;Relator further seeks a mandamus compelling.the respondents to correct the Abuse of discretion ,and constitutional violationscommitted at trial ,as shown in this mandamus;Relator does not seek a writ of habeas corpus,or,any relief accorded by a writ of habeas corpus;relator seeks an order from this court,compelling the respondents to;(l)Accord relator a mini trial inwhich issues regarding the Abuse of discretion committed at trial,and other Constitutional violation can be addressed, and then,accord relator the relief as Equality and Justicedemands.See Issues 2-5' in this writ.
Relator,has presented these issues to the Tenth Court of Appeuls ut Waco Texua; That Court Denied relator's contention of right to speedy trial.,and misconstrued this writ as requesting for habeas corpus relief; The relator does not seek a writ of habeas corpus. Relator seeks an Order from this court.,Conditionally Granting this writ of mandamus,and compelling the trial court Judqe,and state prosecutor to addr0ss issues Two-Fiv0 of this writ application; Alternatively,Relator request that discovery under Level Two be allowed,so that relator can better assist the court in understanding relator's claims ••
The Respondents,Judge John E. Neill,and the State Prosecutor Dale Hanna,has a legal duty under the laws of this state,and the Constitutional Amendments to the United States Constitution,to perform their duties as demanded according to Law; See Issues 2-5 of this writ.,it is clear that respondents Abused their discretion and failed to analyze,or apply the laws and Statutes correctly on Issues 2-5 9f this .writ. Respondents has a duty under the provisions of the 6th Amendment of the United States Constitution as applied to the states by the 14th Amendment of the United States,and Texas Constitution Article l§lO.,to provide relator with a speedy trial,and a fair resolution of the issues of this writ.
Relator has no other clear,adequate remedy at law or €Quity,and it is necessary that a writ of mandamus be conditionally Granted Ordering Respondent to dispose of Issues 2-5 as Equality of.law demands.
IN RE TRACY. HICKS-MANDAMUS PAGE ,4
STATEMENT OF JURISDICTION This court has Jurisdiction to issue a writ of Mandamus under Texas constitution article 5 paragraph 3.,Tex. Gov't Code §22.002(a) (b) PAGE § IN RE TRACY HICKS *14 ·J • J ~
ISSUES. PRESENTED
Denial at Speec'¥ Trial . Once a Speedy Trial has been requested, the Trial Court has a legal duty, under the Texas Constitution and United States Constitution,to move the prosecution forward and bring the defendant to trial.
ISSUE NUMBER TWO The Respondent Abused it's idscretion when it reached a decision so Arbitrary and unreasonable amounting to a clear and prejudicial error of lawRespondent fail to analyze or apply the Severance law to an indictment containing multiple Non-Property offenses,Resulting in a deprivation of relator's Fundamental Con stitutional rights;Tex .const.art 1§10,1 §13,1§14, u.s.c~.A. ,Amend, 1st ,5th,6th,l4th WHEN IT FAIL TO FORCE THE STATE TO MAKE AN ELECTION ON WHICH CHARGE IT WAS PRO CEEDING UPON,RESULTING IN A SENTENCE THAT IS BOTH ULTRA LICITUM AND ULTRA PETITA.
ISSUE NUMBER THREE Respondent Abused it's discretion when it reached a decision so Arbitrary and unreasonable amounting to a clear and prejudicial error of law;Respondent clearly fail to analyze or apply the law correctly when it fail to undertake to Admonish l:'e.l.atc±Lto correct range of punishment on each charge of the indict ment prior to accepting a plea of guilty in violation of Texas Code Criminal Procedure Art 26.13.,Tex.Const art.l§lO,l§l3;U.s.c.A.lst,5th,l4th
ISSUE NUMBER FOUR Respondent Abused it's discretion when it reached a decision so Arbitrary and unreasonable amounting to a clear and prejudicial error of law.Respondent fail to Analyze or apply law correctly where the state used an infirm prior convict ion for enhancement purposes.The evidence demonstrated a Predicate violation required for sentencing l;~lator as a career or habitual offender.Tex.Penal Code Ann.l2.42(b)Vernon's(l974);Violated Realtor's Fundamental Constitutional right as promised by Texas Constitution,art.l§l3,1§14;U.S.Const Amend6th,14th.
IN RE TRACY HICKS-MANDAMUS I
ISSUES PRESENTED
ISSUE NUMBER FIVE
The respondent Abused it's discretion when it reached a decision so Arbitrary and unreasonable amounting to a clear and prejudicial error of law.,Respondent fail to accord relator Equality and Justice under the law of this state,and the United States;Fail to analyze and apply correct law ,and sentenced r:e.iator in violation of the Double jeopardy Clause;Tex Const.,artl§l4;u.s. Const.Amend.Sth, and 14th,Depriving realtor of his Fundamental Constitutional Rights.
STATEMENT ·OF FACTS On or about,May 1993,f@1.~tPr while reporting ·to his parole officer in Tarrant County,was arrested ana charged in a Multi-count indictment with the offense of sexual· assault of a person; 22 .011; 21.11. , ;r@latot"was denied bond.
and was convicted by Respondent,and sentenced to a term of fortyyears at TDCJ-ID. Thus far,no direct appeal was allowed;however,r~J?tor,imrnediately after the guilty plea,~lp.~or wrote the respondent and requested appointment of counsel for an appeal;and requested some form of~resolution of the indictment and charges as written,and resolution of the other known fundarnentai- consti tutional violations in the trial; Reiator submitted numerous writ applications, with supporting case law in an attempt to have these constitutional violations corrected; Prior to triaLrelator filed between l,and 23, motions~·iFl:··particular, a motion requesting the state to make an election upon which charge of the in dictment it was proceeding upon; The Respondent fail to respond to any motion; thereby allowing the prosecutor-to convict relator on all charges of the in dictment.,preventing relator from knowing the actual charge inwhich he was being on trial for. The charges are currently serving as active unadjudicated offenses;causing prejudice to relator,and has restricted his ability to receive any sentence at least partially concurrent with any sentence he is presently serving;-
·PAGE 7 IN RE TRACY HICKS-MANDAMUS t I I has caused the duration of the present imprisonment to be increased and con ditions under which he must serve the sentence greatly worsened beyond the terms of any plea agreement; has prejudiced relator's opportunity for any fair consideration for parole,and caused anxiety and concern,as well as Oppressive incarceration. R~~ator,after trial filed with respondent numerous times,a request to correct the hereinafter fundamental constitutional violations as justice requires; As the Respondent has never responded to these particular reguest,reaator recently filed a formal motion for Speedy trial.
Thereby invoking his rights under the Texas and Federal Constitutions. His Speedy Trial motion duly filed on March 29, 2015.
Since filing .. the motion for speedy trial, the 18th District Court has done nothing to move the prosecution of the Multi-count indictment, or attempt to correct fundamental constitutional violations inwhich r.elator complains of; further, over the past 22 years,despite several letters,motions,and phone calls to the court requesting copies of the indictment,oftense or police reports,or records or other information filed in this case,to intlude a copy of Court's docket sheet related to the case, the court has failed to reply in any manner;and the prosecutors office has engauged in unethical conduct when :relator submits any motion,writ,demonstrating the fundamental consti tutional violations that have prejudiced 1?elator's ability to enjby any term of the plea agreement,and creating an unfair plea bargain •
. I)..RGUMENT AND AUTHORITIES IN RE TRACY HICKS-MANDAMUS PAGE ,8 ' ..
' '
ARGUMENT· AND AUTHORITIES This reLator has expressly invoked his right to a speedy trial under both .the State and Federal Constitutions. The right to speedy trial is guaranteed by the Sixth Amendment as applied to the States by the Fourteenth Amendment of the United States Constitution. See Barker v. Wingo, 407.u.s. 514 (1972). In addition,Article 1 §10 of the Texas constitution guarantees the accused in all criminal prosecutions the right to a speedy public trial. Although the Texas and Federal rights to a speedy trial are separate and distinct, the inter- ; pretation and application of the Sixth Amendment right. to speedy trial by the
Federal Courts serve as a useful guide to the interpretation of the Texas Constitutional right to speedy trial.
In Barker v. Wingo, id.,the United States Supreme Court established a balancing test and suggested four factors to consider in determining whether an accused has been denied a speedy trial. The factors: (1) length of delay, (2) reason for delay, (3) assertion of the right, and (4) prejudice to the . '·'·· accused. While the State has the burden of justifying the length of delay, the defendant has the burden of proving the assertion of the right and proving prejudice.
Importantly, it is well established that a defendant incarcerated on another charge is entitled to the same speedy trial rights as a defendant on bail.
Smith v. Hooey,393 u.s. 374(;J-969); Ex rei Moreau v. Bond,271 s.w. 379 {1925).
As a result, the r~•s status as a prisoner can neither prejudice his speedy trial rights or serve as justification for the delay on the part of the State.
In the case at bar, r·ela.t:Or~~- was arrested and charged with sexual assanl t •' on May 1993, • More than 22 years has passed; a time more than sufficient to require a further examination of relator's speedy right claim. Hu11 v. State,699 s.w. 2d 220 {Tex. Crim. App. 1985); Turner v. State, 545 s.w. 2d 133 {Tex. Crim. App. 1976}.
PAGE 9 IN RE TRACY HICKS-MANDAMUS . ' .
*18 LENGTH OF THE DELAY
There is no constitutional basis for holding that the speedy trial right can be quantified into a specific number of days br months, Barker v. Wingo,supra; Perkins v. State 504 s.w. 2d 458 (Tex. Crim. App. 1974),overld on other grounds; Ex Parte Taylor, 522 s.w. 2d 479 (Tex. Crim. App. 1975). The right to. a speedy··· trial arises from the time the defendant is formally accused or arrested. Dillingham v United States~423 u.s. 64(1975); United States v Marion,404 u.s. 307(1971). "The Barker test is triggered by a delay that is unreasonable enough to be presumptively prejudicial. • •.• we have held a delay of four months is not sufficient while a 17-month delay is." Cantu v State,253 s.w. 3d 273, 280-81 (Tex.Crim. App. 2008).
Here ;-ela"'tt>r:.r was charged more than 22 years ago (22).,And the Multi-Count indictment was also filed at that time,and fundamental constitutional violations weretcommitted by respondent,together with an abuse of discretion in this case; considering this delay together with r~l~tor's motion for speedy trial;consequently this delay is more than sufficient to require a further examination of the speedy trial claim as well as the claims of fundamental con stitutional violations committed in this case.
REASON FOR DELAY
As pr~viously stated this re~~tor filed his formal speedy trial mot;foo approximately 60 days ago, he filed informal requests (in the form of letters,motions,pho~e calls to the court) mqre than 22 years ago.,Nbne of his request,or his motion have been acted upon by the Court,or responded to by the prosecutor in an ethical respectful manner.
IN RE-TRACY HICKS-MANDAMUS PAGE,lO *19 I <
Despite reJator's attempts to resolve the Multi-Count charges of the indict ment and Fundamental constitutional violations in this case, there is nothing to indicate that the state has even made an attempt to secure a trial date, or relator's appearance at a hearing. The primary burden is on the prosecution and the courts to insure that defendants are speedily brought to trial.
Turner v. State, 504 s.w. 2d 843,845 (Tex. Crim. App. 1974). Both the trial Court and prosecution are under a positive duty to prevent unreasonable delay.
Wilson v. Bowmant381 s.w. 2d 320 (Tex.l964). Here, the reJ.·ator has done nothing to prevent or delay a trial in this case.
REAL'IDR 'S ASSERTION OF HIS RIGHTS
Relator for the past(22)twenty two years has wrote the court numerous times, starting in 1993 immediately after trial.,it wasn't until March 29, 2015 that he made n formal motion for speedy trial, more than 60 days ago. As the u.s.
Supreme Court stated in Barker v. Wingo,supra,"the defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determin- ing whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult to prove that he was denied a speedy trial." Barker v. Wingo,407 u.s. at 533. Again, here the ~·itor wrote letters, and filed numerous motions,and wirt applications requesting the court resolve the Multi-count indictment and other fundamental constitutional violations in this case more than 22 years ago,and filed a speedy trial motion approximately 60 days ago. Relator has clearly asserted his speedy trial rights.
PR&JUDICE .ro THE REALUDR':.
The right to speedy trial is designed to protect three general interest: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be ffim paired. Barker v. Wingo,supra. The defendant invoking his right to speedy trial must make some showing of prejudice resulting from the delay. Barris v State 489 s.w. 2d 303,308 (Tex. Crim. App. 1973). r
The interest 9f a defendant incarcerated on another charge are entitled to the same protections afforded the defendant who is either incarcerated or out on bail on a pending charge. In Smith v. Hooey,supra,the United States Supreme Court noted PAGE 11 IN RE TRACY HICKS -MANDAMUS *20 ' '
that the defendant incarcerated on another charge may (1) lose the possibility that he might receive a sentence at least partially concurrent with the one he is presently serving; (2) have the duration of the present imprisonment increased and conditions under which he must serve the sentence greatly worsened; and (3) suffer from the same anxiety and depression of the defendant at large,under a pending charge. Smith v. Hooey,393 u.s. at 378 •
Whis ~iator is losing the possibility of a partially concurrent sentence with every day that passes,where·the Multi-Count indictment operates as a detainer on the additional charges of the indictment. In addition, the charges as filed in the indictment, is:~ resulting in the loss of certain educational and vocational programs; (2) he is not permitted off-unit or outside prison compound priviliges ; and (3) he is inelig·i_able for S2 trusty classification,and fair consideration for parole possibilities because parole board members a~re\•,considering the additional charges as unudjudicated,unresolved chargeo·against relator. Each of these limi tations restricts rei~tor's efforts at rehabilitation. And as the Court of Criminal Appeals recognized "the detainer may well have prejudiced his opportunity for clemency, pardon ••• [ o:r l parole. " Turnersupra at 139. These allegations alone constitute a sufficient showing of prejudice, even without considering the dimm- ing memories of all involved in the incident.
Re-lator, in particular ,further complains of the Respondents Abused its discret ion during trial b¥::r:eaching a d!?cision so arbitrary and unreasonable amounting to a clear and prejudicial error of law,by failing to analyze or apply the law of severance to the Multi-Count indictment containing Multiple Non-Property offenses:;resulting in the deprivation of relator's fundamental constitutional rights as guaranteed by the Texas Constitution article 1§10,1§13,1§14;U.s., Constitutional Amendments lst,5th,6th,and l4th,when it fail to force state to make an election on which charge of the indictment it was proceeding upon, resulting in a sentence that is both Ultra Liciturn,and Ultra Petita; Respondent, has fail to correct this violation of relator's fundamental constitutional rights,even after r~ator's mnny request in the form of letter,rnotions,and phone calls to the court over the past ( 22·) t\lenty two years.
IN RE TRACY HICKS -MANDAMUS PAGE 12 ' I ' Prior to triaLltelator filed.with respcindent between one(l) and (23)motions; amoung those motions were,A motion to quash the indictment,and a motion requesting state to elect which charge of the indictment it was proceeding on.
See respondents docket sheet,and counsels files on this case.
respondent fail to analyze and apply the law correctly. the indictment con tained Multiple Non-property offenses,the offense of sexual assault,Tex. Penal CQde sec.22.0ll;and the offense of Indecency,Tex. penal Code 21-ll.,and other charges.Texas Constitution Article 1§10 Provides iri part;"Rights of accused in criminal prosecutions; He shall have the right to demand the nature and cause of the accusations against him;
United States.Constitutional Amendment 6th provides in relevant part; That the accused shall be informed of the nature and cause of the accusation; 14th Const.Amend. "Nor shall any state deprive any person of life,liberty,or property without due process of law;Nor deny to ahy person within its jurisdiction the equal protection of the laws.·
Chapter 3.,3.04(a) Tex~s penal Code provides;Whenever two or more offenses have been consolidated or joined for trial under section 3.02 of this code, the defendant shall have a right to a severance of the offenses. ! Under well established law of this state,A defendant's timely motion to force state to elect must be granted if the state has misjoined Non-Property offenses in a single indictment; trial court has discretion to delay state's election c due to misjoinder of non property offenses in a single indictment,once request ed, until submission of charge to jury; however,if trial court uncessarily delays election and thereby prejudices defendant,trial court may be found to ' have abused its discretion,Vernon's Ann.Tex.Code.Crim.Proc.,art21.24;If trial
court fails altogether to require state to cure misjoinder of nonproperty offenses, whether by denying motion to quash indictment or denying mot~on to force elect ion,appellate court must reverse conviction-Vernon's Ann. Texas code. Crim.Proc., art. 21.24.,See Callins v. State 780 s.w. 2d 176 (Tex. Crim_.App. 1986).
·Relatormade a timely motion to quash.,and motion to force state to elect; Respondent denied the rnotions,and delayed forcing the state to elect due to misjoinder of Non-Property offenses in a single indictment.
PAGE 13 IN RE TRACY HICKS -MANDAMUS · .
. .
*22 Respondents total failure to srant. relator's timely motion to quash,and m::;.:J.on for state to elect. which count it was proceeding upon,"at all". ,has dent~ violence to relator's fundamental constitutional rights; respondents·further abused it's discretion; respondent had a duty imposed by law to force state to elect; the law of severance,provides in part;"A defendant shall have a right to a severance of the offenses". ,Ch. 3. ,3.04(a) Tex.Penal Code;see also Callins Supra. Under well settled law of this state,a defendant's timely motion to force state to elect must be granted if the state has misjoined Non-property offenses in a single indictment.,Crosslin v State 90 Tex.Cr.R.467,235 s.w.905, 906. (1921). relator ask the court to Conditionally grant a Mandamus. The Courts of Appeals has held; Because mandamus will issue only to correct a clear abuse of discretion,or the violation of a duty imposed by law when there is no other remedy by law,the relator's must demonstrate that either; (l)the trial court could reasonable have reached only one decision concerning the resolution of certain factual issues or.matters committed to the trial court's discretion: or (2)the trial court fail to analyze or apply the law correctly.,In Re Gonzales 115 s.w.3d 36(Tex.App.San.Antonio 2003). Iri the case at bar ,_the trial court could reasonably have r~ached' only one decision concerning the resolution of the Mis-Joined Non-Property Offenses in the single indictme~t committed to respondents discretion;the respondent fail to analyze or apply the law of severance,at all, in this case ·as d~monstrated above,and abused it's discretion warranting Mandamus relief.Walker v Packer 827 S.W 833,839 Tex ( ) I.d.
at 840. Moreover ,Mandamtis relief is available to correct a trial court's ·· deprivation of fundamental constitutional rights.,Republican Party v Dietz 940 S.W.2d. 86,94(Tex. 1997) Relator ask the court to conditionally grant a mandamus compelling respondents to correct the issues regarding the Mis joined non property offenses of the single,-: indictment,·"'or~ -in'-tAe"'a1ternative, exercise this courts power to reverse and remand the conviction as Equality and Justice demands.,Callins supra.
Complaining further,relator says that respondents abused it's discretion when it reached a decision so arbitrary and unreasonable,amounting to a clear and prejudicial error of law affecting relator's ability to plea knowingly and intell igently. Respondent fail to analyze or apply the law correctly when it fail to undertake to admonish relator to the correct range or punishment r.~t.tached to each charge of the MultiCount indictment prior to accepting the plea of guilty:violating Tex.Code.Crim.Proc.,art.26.13,and relator's constitutional rights asguaranteed by Texas Constitution art.l§IO,l§l3;U.S. Const Amend.l4.
IN RE TRACY HICKS-MANDAMUS PAGE 14 ' .
' .
*23 Over the past twenty two(22) past years,reiator has wrote respondent in the form of letters,motions,writ application,and phone calls requesting resolution of this issue as justice requires. ,Respondent has fail without cause to accord re<l~tor Equality and Justice on this issue,and prosecutor has enguaged in un ethical conduct,failing to uphold the duties of it's office and the constitution of the State of texas,aswell as the Constitutional. Amendments of the United States Constitution. it is the duty of Respondents to see to it that defendants constitutional rights are observed;according a defendant the Equality and Justice in every case at trial.
Respondent clearly fail to analyze or apply Article 26 .. 13 correctly· by failing to undertake to admonish re~tor to correct range of punishment attached to the offenses in the indictment. The S.O.F. P.,l-35.,demonstrate that during trial, Respondent only gave admonishment to range of punishment for a second degree offense; Respondent stated "these offenses are what we call second degree felonies punishable from 2-20 years". The indictmenti29450, containedMultiple charges; Sexual Assault,a second degree felony,punishable from 2-20 years confinement,and the Charge o~ Indecency,a Third degree felony punishable from 2-10 years,or probation.Article 22.0ll.,aadoart21.11 Tex.Code Crim.proc~,Re;lator received a sentence of forty years confinement,thirty years more than allowed for third degree offense. Article 26.13 Code Crim.Proc.,Provides; (a)
Prior to accepting a. plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
( 1) the range of punishment attached to the offense; Relator was sentenced to a term of forty(40) years confinement;however,Respon dent fail to undertake to admonish relator the the correct range-of punishment attached to the third degree offense in the indictment,and punishment was not within that proscribed by for a third degree offense;Respondents total failure to analyze and correctly apply law on admonishmentsbArticle 26.13,affected , ~ ·, ~ =" reJ.ator's ability to knowingly btl 'lntelligently to the punishemnt.,Relator would not have plead gulity had he been properly admonished to correct range of punishment attached to the offense,but. would have insisted upon trial.
Under well established law of this state;A trial court may substantially comply with plea statute even though it incorrectly told defendant that the indecency counts were were third degree felonies-
PAGE 15 IN RE TRACY HICKS-,MANDAMUS '·· ..
carrying a range of. imprisonment::.of two to ten years, when offenses were actually second degree felonies carrying a range of punishment from two to twenty years, where eight year sentence fell within both correct range and the range mentioned by the court.Dobecka v. State(App. 5 Dist 2bo3)2003 WL 1947ll,Unreported.
In the case at bar,the forty year sentencecdoes not fall within both correct range and the range mentioned by the Respondent;respondent fail to Undertake to admonish rel·ator to range of punishment attached to the third degree offense, and clearly demonstrates Respondent fail to admonish relator in compliance with guilty plea statute,affecting relator's ability to knowingly and intelligent ly plea in this case;had relator know of proper range of punishment attached to the offenses,he would not have entered a plea of guilty,but would have exercised his right to trial by jury. Texas law is consistent;Requirement of Admonishment as to range of punishment is Mandatory and failure to admonish constitutes reversable error.,Tex. App. Dallas.,Vernon's Ann. c.c.P.,art 26.13 Johnson v state 629 s.w. 2d.l37. If qefendant is able to demonstrate that trial court failed to admonish him in substantial compliance with guilty plea statute and the error was harmful, judgment must be reversed,and case remanded to trial court for new trial.V.A.,Tex. C.C.P.,art 26.13.,Lanum v. State 952 S.W. 2d 36~ Hughes v State,806 S.W. 2d 248, pdr 833 s.w. 2d 137.;Martinez v State 953 s.w. 2d. 804 rehearing overruled,PDR granted ,rev.,981 S.W.l95.(Acts 1973,63rd 1eg .. ,p.883.ch.399§1.
!;;L·!t:H.is clear Reepondent fail totally to analyze or apply Article 26.13 by failing to undertake to admonish relator to correct range of punishment attached to all offenses in the indictment;A clear failure by the trial court to apply the law correctly constitutes an"abuse of discretion",as element for Mandamus relief,. in re Rp Products North America [1] Inc.,244 S.W. 3d m (20
) ;_V __ 685 S.W. 2d. 479, (19 ) • Relator ask this court to issue a Mandamus compelling Respondent to correct the above fundamental constitutional violation,and thereafter accord Reiator a trial like hearing on this issue resolving this issue as Justice and Equality demands. relator pray the court grant this mandamus,and any other rell:ief deemed just and appropriate in this case.
PAGE ,16 IN RE TRACY HICKS-MANDAMUS ' '
*25 Respondent further Abused it's discretion when it rea~hed a decision so Arbi trary and unreasonable amount~ng to a clear and prejudicial error of law.
Respondent fail to analyze or apply law correctly where the state used an infirm prior conviction for enhancement purposes,where there was clearly a predicate violation required for sentencing relator as a career or habitual offender as required by statute.Tex. Penal Code 12.42(b)vernon's l974).further violating re~ator's Fundamental Constitutional rights as promised by Texas Constitution art.l§l3,1§14.,anp the Due process Clause of the Fourteenth Amendment to the Constitution of the United States.u.s~ Const.,Amends.,6th,l4th.
As with other claims,relator has over the past twenty two (22) years wrote Respondent by letters,motions,writ application;requesting to be brought to trial on this issue;Respondent has fail to respond in any manner to request written,and the prosecution has done nothing to resolve this issue.
Reaator was charged with'a second degree offense of sexual assault,with one enhancement paragraph for a 1985,robbery conviction;now expired as of Dec.5,2001.
During the sentencing phase of trial,the state attempted to punish reiator as an habitual offender under section 12.42 (b) Tex. penal Code Ann.Vernon's 1.974). The Respondent was the sole trier of fact,hearing all testimony and evidence.,Relator during trial,plead 'true' to the enhancement paragraph on the advice·of his counsel,before counsel investigated the disposition of the prior conviction. While the indictment Exhibit "A• showed the respective date on which the prior conviction had been .obtained, the indictment fail to specify the 'date' of commission of the 1985 Robbery conviction,and the prosecutor put on no Gther evidence to the trier of fact showing the 'date',:or:::.whether the prior was indeed a final conviction:the trier of fact found the allegat~ons concerning the enhancement to be 'true' based on reilator's own admission" and·sentenced relator to a term of forty (40) years confinement.,Trial counsel did not com plain to the court of the predicate violation,where the state put on NO evidence to prove the date of commission of the 1985 Robbery conviction used for enhance ment purposes;similarily, counsel did not raise the issue on appeal to this court, and re1ator lest ability to raise the claim on appeal.
PAGE ,17 IN RE TRACY HICKS-MANDAMUS *26 ~lator contends,and the evidence show,relator is "actually" innocent of the Habitual offender status; there exist a predicate violation required for sen tencing rel~tor as a career,habitual offender under 12.42(b) Tex_. Penal Code Ann. Vernons 1974). During the sentencing phase of the trial,the state's own evidence demonstrated that relator had been convicted on 1985 for robbery; however,there was NO evidence .submitted to the trier of fact demonstrating the date of commission of that offense,or whether it was indeed a final con viction available for enhancement purposes as required by statute. In French v Estelle 692 F.2d 1021 5th Cir.(l982) The Chronology of the commission of prior felonies is.an essential element of Tex. Penal Code Ann.,§ 12.42{b).
In the case at bar,the trier of fact allowed the state to convict relator upon NO evidence supporting the prior convictions disposilion as required by law;A defendant is presumed Innocent until proven guilty;however,the state was allowed to convict relator: without putting on any evidence to support its contention of the 1985 robbery conviction used for enhancement purposes.
Ineffective Assistance of Counsel;
In Menefee v State 175 s.w. 3d. SOO{Tex •. App. Beaumont 2005) the legal ... , standari:1 applicable to an ineffective assistance of counsel claim is set out in Strickland v was~ington 466 U.S. 668,104 S.ct.2052,2064,80 L.Ed.2d.674 (1984).
An applicant under the Strickland standard,Must first show counsel's per formance was deficient.,Id.at 687,104 s.ct.2052; Mitchell v State,68 s.w. 3d· 640,647{Tex. Crim. App~2002)Specifically,applicant must prove by preponderance of the. evidence that trial counsel's representation fell below the objective standard of professional norms. Mitchell 68 s.w.3d. at 642. Second,the applic ant must show that this deficient performance prejudiced his defense.Strick land,466 u.s. at 687,104 s.ct.2052. This means that the applicant must show a;lreasonable probability that,but for his counsel's unprofessional error's, the results of the proceedings would have bef?n different. "A reasonable probability,is a probability sufficient to undermine confidence in the outcome~ Mitchelle,68 s.w.3d.at642.
IN RE TRACY HICKS-MANDAMUS PAGE,l8 *27 Appellate review of defense counsel's represenattion is highly deferential and presumes that counsel's actions fell within the wide range of reasonable andprofessional assistance. Bonev.State 77 s.w. 3d. 828,833,Tex. Crim~App.
2002). This deferential standard applies to ineffective assistance of counsel that occurs during the punishment phase of trial.F1owers v State 133 s.w.3d 853,856(Tex.App.Beaumont.,2004 m (EI:.) citing Hernandez v State 988 s.w. 2d. 770,772(Tex. Crim. App. 1999).
It is well settled that any claim of ineffective assistance must be firmly founded in the record. Thompson ·Y· State 9 s.w. 3d 808,813 (Tex. Crim. App.l999).
Under normal circumstances,the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactial or strategic decision making,as to ·overcome the presumption that counsel's conduct was reasonable and professional-Bone 77 s.w. 3d at833.
However,when no reasonable trial strategy [can]justify trial counsel's conduct,counsel's performance falls below an objective standard of reasonable ness as a matter of.law, regardless of whether the record adequately reflects the trial counsel's subjectivereason for acting as [he] did" Andrews v State 159 s.w. 3d 981,982(Tex. Crim. App. 2005) When the record contains all the in forlnation needed to make a decision,a court may find trial counsel's performance to be deficient even when the record is silent as to counsel's trial strategy and tactics.See Id.at 102,03.
Under the first prong of Strickland, it must. be decided whether this .-~efenda:~ has shown trial counsel's performance was deficient. Strickland,466 u.s. at 687 104 S. Ct. 2052. The record indicates counsel allowed defendant, to plP.nn 'true' and stipulate to the P.nhancement allegations; NO OTHER EVIDENCE was offered by prosecutor on the enhancement. For enhancement purposes,prior convictions must be final. An avernment in an indictment that an accused person has been convict ed is sufficient to charge finality of prior conviction for purpose of sen~ence enhancement,but the burden is on the state to show that conviction became final before the commission of. the offense defendant is being sentenced for.Glorioso v State(Cr. App. 1988)746 s.w. 2d 483;753 s.w. 2d 454;the burden is on the state to. make a:prima facie showing that any prior conviction alleged for enhancement, or for punishing an accused as a repeate offender·,became final before commission of primary offense,and once such a showing is made,burden shifts to defendant to prove otherwise.
PAGE,l9 IN RE TRACY HICKS-MANDAMUS - '
Diremigo v State (Cr. App. 1982)637 s.w. 2d. 926. In the case at bar,the state fail to offer a single piece of evidence to establish the 'date' of commission of the 1985 conviction used for enhancement;fail to offer any evidence of finality as required by lDy-,:Due process Clatilse of Fourteenth Amendment; fail to offer a Mandate from this court demonstrating that re;'J.ator had indeed appealed the 1985 conviction.,and after the indictment was presented to Respondent,Respondent sentenced re~fttor to a term of forty years confinement under 12.42(b)Tex.Pena1 Code., Vernons.,1974.,
Defendant during trial plead !true' to the enhancement paragraph and stipulat ed that he had been conv:i.c:tf!O on the 1985 robbery; however,as mentioned,the 1985 conviction had been appealed .to this court on 1986;and the state failed in the primary case,to prove the 'date' of commission of the 1985 robbery,or whether it was a final conviction available for enhancement purposes. Because counsel advised defendant to plead .!true·~ ,and stipulate to the infirm prior,defendant lost the ability to appeal his sentence based on sufficiency of the evidence used to enhance his sentence to a first degree offense. See Smith v State 158 s.w. 3d 463,465(Tex. Crim.App-2005).
Trial counsel had a duty to reasearch Texas enhancement 1aws;investigate defendant's case,and prevent the defendant from pleading true to the enhance ment,and a duty to have state make a prima facie showing that any prior con vict;ion alleged for enhancement,or for punishing defendant as a repeat offender, became final before the commission of the primary offense.This duty derives from counsel's function 'to make the adverserial testing process work in the particular case' I.d~,(citing Strickland,466 u.s. at 690,104 s.ct. 2052) ' . There can be no reasonable trial strategy for allowing the defendant to plead
'true' to an enhancement allegation where there· existed a predicate vio lation~and the.state had not made a orima facie showinq,whehher the conviction \r_;a~:: was indeed a fin:1l conviction available for enhancement purposes,or proved ._~:.: ·· .~.:-! ....... ccr· · l.ll~2.J. a ~ .... .l.c::-i ,:.· Jc:f _~_l · · c.nL':'- ~~_:·- [7]
the date of commission of that offense.
Defendant believes, that under the Strickland standard,trial counsel's per~ formance fell below an objective standard of reasonableness as a matter of law. I.d. [1] The first prong of the Strickland test has been met und catisficd.,See Ex Parte Jordan(Cr.App. 1994)879 s.w. 2d.61.
PAGE 20 IN RE TRACY HICKS-MANDAMUS .,
*29 The second prong of the Strickland test,is to determine~whether trial counsel's deficient performance prejudiced the petitioner's defense.Strickland 466 U.S.at 687,104 s.ct.2052. There is a reasonable probability,that but for trial counsel's error in allowing defendant to plead 'true' and not challenge the validity of.
the prior conviction,the results of the proceeding would have been different.Hill v Lockhart,106 S.ct.366.,Mitche11e,68 s.w. 3d at 642. The defendant's punish ment was enhanced from a second degree offense,carrying a punishment range of 2-20 years confinement,to a first degree felony~carrying a punishment range of· life,or five(S) to ninty nine(5-99)years confinement.Tex.Pena1 Code Ann.§ 12.42. (b)&(c).Realtor was sentenced to a term of forty years,which is twenty years more than the maximum allowed for a second degree felony; and thirty(30)years· more than the maximum ·allowed for the third degree felony alleged in the same indictment.
There is a reasonable probability,that had trial counsel filed the appropriate motions challenging the prior convictions validity,i.e.,filed motion to suppress prior,and advised relator to plead 'not true' ~:l.:i.tor would have plead not guilty, and proceeded to trial,or received a sentence within the punishment range allowed for a third degree offense,and would have been able to challenge any sentence outside the punishment range based on insufficiency, or No evidence to this court.
Relator has demonstrated a clear violation of his Fundamental Constitutional rights w1der Lhe slxth ctuu Fou~:·teenth Amendments to the constitution of the United States; Counsel's deficient performance prejudiced relator's defense in the Punishment phase of of the trial.,the second prong of the Strickland test is. satisfied
Relator ask this court to conclude;that reLator has demonstrated a clear violation of his Fundamental Constitutional Rights ;Issue a writ of Mandamus compelling the respondent to correct this issue as Justice demands; and conclude that Respondent, and state, would be barred by law in a second proceeding from using th~ infirm prior not proven in the first trial. In French Supra,where a petitioner was once subjected to an enhancement proceeding where the state failed to produce sufficient evidence of habitual offender status to support a life sentence,the double jeopardy Clause bars a second trial like.enhancement proceeding on the basis of the one prior felony insufficiently proven at the earlier trial.Bullard v~ Estelle 708 F.2d 102l.,Jackson v Virginia U.S. S.ct.99,2781,443 U.S.307,61 L.Ed.2d. 560.reh. den.,100 Ct. 195,444,U.S.890,62 L.Ed.2d. 126. No rational jury could have tound beyond a reasonable doubt the elements necessary to prove the prior enhancement- IN RE TRACY HICKS-MANDAMUS PAGE,21 *30 used for enhancement in the primary case based on the states own evidence presented to the Resf>ondent during the sentencing phase of Re:J:.ator's trial. Relator ask ti\~~ - court to issue this Mandamus compelling the Respondent to correct the fundamental
constitutional violation that took place during trial, as :.;.. \! i_.il.nstfilce i C') demands.
Relator further ask the court to. strongly consider that Relator is being Restrainec of his liberty by virtue of the infirm prior conviction insufficiently proven at trial; said prior conviction expired on December 5,2001. Relator ask the court to grant any other relief the court deems just and appropriate in this matter.
It is clear that Respondent fail to hold state to its burden of proof;that there was no evidence submitted by state to prove up the one prior used for enhancement purposes; Had Respondent eorrectly applied the law,and requirements of Tex. Penal Code 12.42. (b) together with the Texas CJ'n:stiitiJtfun article l§lO,l§l3;U.S. Constitutior Amendments Sixth 6th,Fourteenth ,and the Due Process Clause ••,Relator would have either plead not guilty,or received a sentence within the range of third d~ree v. ,69s·s.w. 2d479; ____ v 244 s.w.3d 840.,( felony. ).In re Chevron U.S.A.,Inc.C.A. ,.l.Ci)9xF.ld'n016(C.A. (Tex)l997 ..
Relator complains further that the Respondent Abused it's discretion when it reached a decision so Arbitrary and unreasonable amounting to a clear and prejudical error of law.,Respondent fail to accord relator Equality and Justice under the law of this state,aswell as the United States; Fail to analyze and Apply correct law, and sentenced relator in violation of the Double Jeopardy Clause.'l'ex. Const.art. l§l4;U.S. Const.Amend.Sth,and 14th.Depriving re.lator of his Fundamental Constiut ional Rights. As with other claims.rrelator has wrote.the Respondent numerous times over the past 22,years,by letters,motiohs,and writ application,requesting f~fffpti~n gf ~HlrdgppJ.e j~ggq.;-?Y ir~~K::due to the prejudicial treatment rela~or is being subjected to; The Respondent has fai 1. to n:-::~ponc'l in r~ny mnnm~r t.o the request,and has done nothing to move the prosecution forward to resolve this issue. Relator was charged by Multi-count indictment containing three offenses alleged to have taken place in a common incident.,Exhibit.•A"· :i.ncHctment#29450.
The laws of this state are clear. In Ex Parte Fortune 797 s.w.2d929(Tex.Crim. App• (19 )>Entering plea of guilty does not preclude defendant from raising.
double jeopardy contention in application for writ of habeas corpus.,u.s.c.A. Const.Amend.S; Double Jeopardy Prohibits state from obtaining convictions in successive prosecutions where common incidents exist.U.S;.C.A. Const. s.,Ver:non Ann. Tex. Const.Art 1§14;
PAGE,22 IN RE TRACY HICKS-MANDAMUS *31 Where the intent of the legislature is ambiguous as to allowing individuals to simultaniously punished for commission of multiple offenses under separate and distinct statutes,test to be applied for double jeopardy purposes to de termine whether there are two offenses or only one is whether each provision requires proof of fact that the other does not.,u.s.c.A.,Oonst.Amend.5.
The Fifth Amendment provides in revelant part;"[Nor shall any person be subjected to the same offense to be twice put in jeopardy of life or limb". The Double Jeopardy Clause serves three primary purposes; (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; (3)it protects against multiple punishments for same offense.
In the present case,the Respondent,and the state has fail to adhere to the laws and Texas Constitution,aswell as the constitution of the United States regarding the Double Jeopardy Clause;and has fail to correct this ~· viulatiuiJ uf Re\l,:ator's Fundamental Constitutional Right. R~lator waB convi'cted by single indictrnent,containing Multtple offenses a~leged to have taken place . in a common incident. In Elder v State,l32 s.w.3d 20 (Tex.App.Fort Worth 2004)
The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against both successive punishments and successive prosecu tions for the same offense.United States v Dixon 509 u.s.688,689,696,113 s.c.t 2849,2855,125 L.Ed .. 2d556(1993).The double jeopardy clause provides that No person shall "be subjected for the same . offense to be twice put in . jeopardy of life · or lint>" u.s.const.amend v.
Greater inclusive and lesser included offenses can be the same offense for jeopardy pruposes,Bro~ v Ohio,432 U.S.l61,169,97 S.ct:. 2221,.2227,53 L.Ed.2d.l87 (1977); Parish. v State.· 869 s.w. 2d 352,354(Tex.erim.Api>.l999). Thus, where the evidence shows that the defendant committed only one act that could be used to prove both a greater inclusive anH lesser included offense,the defendant cannot be convicted of both offenses. Ochoa v State 982 S.W.2d 904,908 (Tex.erim.App. 1988) Relator in the case at bar,was charged on May 1993,in a three count indictment with having committed sexual assault in count one.,22.0ll.by Intentionally and Knowingly causing the penetration of the sexual organ of Sandi Burton by the male sexual organ of ~ator(then defendant) ;and Sandi Burton was a child under 17 who was not the spouse of defendantTex.Penal Code Ann.§22.0ll(c)(l)(l994,Vernon., (a)(l)(A)(2)(c).
IN RE TRACY HICKS-MANDAMUS PAGE,23 *32 Count '1\ro·eOf the same indictment alleged that during the same incident;that defendant;caused the mouth of defendant to contact the sexual organ of sandi Burton ; ( 2) ( c) ;
Count Three;with intent to arouse or gratifY the sexual desire of defendant, and sandi Burton was a child under 17 and not defendants spouse;Tex. Penal Code Ann. §2l.ll(a) 1994(Vernon 's(2l.ll(a) (1) (2) (A) (B).
The sexual assault required proof of the following facts;
* Defendant·· Intentionally or Knowingly;
*Caused the penetration of Sandi Burtons sexual organ by defendants' sexual
organ; · * and sandi Burton was a child under 17 and not defendant's spouse. 22.0ll(a)(l)(A)(2)(c). The Indecency count required proof of the following facts;
* Defendant enguaged in sexual contact with sandi Burton by causing the mouth of
defendant to contact the sexu·al organ of Sandi Burton; * with intent to arquse or gratify the sexual desire of defendant;and Sandi Burton was a child under 17 and not defendant's spouse.Tex. Penal Code Ann.§2l.ll(a) (1) (2) (A) (B).
Under Texas law,it is well settled that touching the female sexual organ with the intent to arouse or gratify sexual desire is a lesser includes:. species of conduct of the intentional or knowing penetration of the female sexual organ.
Ochoa 982 s.w. 2d at 910(Kel.1Er.Jea:n::m:rirg)acx::nrd <1Jnin:ton v state 726 S.W.dj l51,155('1Bc. ~.l$7)(rd::irg that, while aggravated sexual assault statute does not require specific intent to arouse or gratify sexual desire,the legislature has recognized that penetration may show such intent)Therefore,the two offenses were the same offenses for double jeopardy purposes,and the state was not entitled to seek con victions for both. Brawn,432 U.S.atl69,97 S.ct.at 2227;0choa982 S.W.2d at 908; Parish,869 s.w.2d at 354.
In Demoss v State 12 S.W.3d 553,561 (Tex.App.san Antonio 1999,p:!t refi.B3j) A pe!7$0rrxcoinmits:·aggnivateatsexual assault Of a chlrl:ld:by ~b:ati.n3 t:re ferrale sexwl organ by any means or by penetrating the mouth of a chi 1 n. by the sexun] organ of the actor .'l'ex.Penal Code 1\nn.§22.0ll(a)(2)(A), (B)vernon 1999.
A person commits indecency with a child b(ysexual contact if he enguages in sexual contact with a child or exposes his anus or any part of his genitals knowing the child is present,with intent to arouse or gratify the sexual desire of any person.Tex Penal Code A~nn.§2l•ll(a)(Vernon's 1994) with regard to both- PAGE,24 IN RE TRACY HICKS-MANDAMUS ..
-offenses in relator's case,"Child" is defined as a person younger than 17 who is not the spouse of the actor,i.d.Tex.Penal Code Ann.®22.0ll(c)(l)vernon's 1994) "Sexual contact"under section 21.11 is defined as any touching of the anus,breast, *33 or any part of the genitals of a person with intent to arouse or gratify the sexual desire of any person.Tex •. Penal Code Ann.§2l.Ol,vernon's 1994) .In the case at bar, because the greater inclusive and lesser included offenses arose from the same conduct, they were the same for double jeopardy purposes.,Blockburger 284 u.s.at 304, 52 s.ct.l80; Parish Supra. In absence of a clear indication that the legislature intended to inflict multiple punishment,conviction for both offenses constituted double jeopardy,and respondent,and state abused it's discretion when it reached a decision so arbituary and unreasonable amounting to a clear and prejudicial error of law,by failing to accord relator Equality and Justice under the laws of this state,and the constitution of the United States;further respondent fail to analyze and apply Double. Jeopardy law,and sentenced relator in violation thereof ' Tex. Const.Art 1§14;U.S.Const.Amend,5th.,l4th
CONCLUSION While no one factor is either a necessary of sufficient condition to the finding of a deprivation of the speedy trial;instead,the four factors are related and must be considered together along with other revelant circumstances demonstrating willful violation of relator's Fundamental Constitutional rights.
However,this relator who has waited over (22)years since being charged,clearly has shown the denial of his.rights.
Rell?ait.et:cis::: not requesting, at this time, the dismissal of the charges altogether ( only that the court conditionally issue a Mandamus in order to enforce relator's constitutional rights to a speedy trial,and to compell the respondents below to accord relator the Equality and justice he deserves on the issues presented in this petition.;Relator request this court conditionally Grant this petition ,and Grant relator a Mini trial in which these issues ca'i1 be addressed.
PRAYER
For all the reasons above,Relator Pray that this Court Conditionally Grant a Writ of Mandamus,Compelling the Respondents to bring Relator to a Speedy Mini Trial as guaranteed by the Texas Constitution,and the United States constitution;Compell respondents to correct the abuse of discretion and violations of law and duty imposed upon it at trial as set forth in this petition;Relator pray for any other relief this court deem just and appropriate. PAGE 25
IN RE TRACY HICKS-MANDAMUS CERTIFICATE OF SERVICE I Certify that I have previously mailed a true and correct copy t *34 to the Judge,Hon. John E. Neillat his addres at Guinn Justice Center 204 s. Buffalo Ave, Cleburne Tx 76033;along with Hen. Dale Hanna, Johnson County District Att6rney's office at Guinn Justice center 204 s. Buffalo Ave.,.Ste 209 Cl~burne Tx 76033 By placing the same in the Mail on.the 12th day of june 2015
I Further Certify that a true copy of the foregoing petition for writ of mandamus was mailed to the Supreme Court Clerk on this th
I& DAY of August 2015 by placing the same in the u.s.Mail postage afixed on this the J1,..4 day of August 2015
~~OR,PRO SE IN RE TRACY HICKS-MANDAMUS PAGE 26
..... :•·.
(
*35 1. Verification-'l'RAP 52.3 ( j)
2. Verification'!"()btain recorda
3. Verification-Tr:ue copies
. 4. Moticn ·tor Speedy Tr'ial-Q::der Ccmplained of
s. O&:'der on ~· Trial
6. Order of Dtsm.tesal--want of prosecution
7. O.rtificate of service
a. ~rtifiea Hail ReceiPt-Proof of Delivery=#=. )o t/ ~970 ~Of!J -2. S"i;,J 0 q/6 Z .. i.Texaa. ~t of Cz:'iminal Justice's Time Sheet XnfOJ:maticn,
provi.deCJ by the Depar:baent ee Evidence Relator ~ c:cepleted
over 45 yean· ec:cumulat~ titne towards 40 year eentcmce no
good conduct t.lma is llfling awarded due_ to charge M\llti-count
!ndietment.see DoeuDmta lufttben 12,13,14.5o.l4 show all charges an· ~ing ueec5 to prejudiee Relator's ability to ~ivo fair Consideration ~ing parole; heui~s. 10• Doculne!lt shewing mo:r:e prejudice from Multi-count IOO!~tment
· pr.venting fair canaideration of perole.fl5
11. Doc:uiDent dated Nov 3,2014 ftom family shoving prejudice at
puoltt ~!deration fran Multi-count Indictment.tl6
12. Trail Court . Docket Sheet.
13. Indictmantt29450.
14. Statement of Fact$ St&te of hxaa v. 'lUcy licJc$ #29450
1s. J'UC59eaaent and Sentencetmso .
16. lol$.ce Offense Report( Narrative)
17 • .Relator•• ·fiiotion Requesting ~ial a~.
ALL RECORDS 12-17 ARE WITHIN ~ FIW AND ARE R£QU2S11ID AS PMf OF !HIS MANDAMOS
I STATE Oi' 'f£XAS
COONTJ or ANDERSON
VBRIFICATION or TRACY HICICS . This verification is made pursuant 'texas Civil Practice and Remedies CcXIe *36 §l32.00,and Texas Rules of Appellate Pro®du.re 52.J(j).
the facts contained in this affidavit are true ei\d. correct.
2. I'am the relator in this cause,l have read the petition
.tor writ· of mandlunus,and t.tt. facts stated ia thls petition . .
are within air personal knc:Nledge,and are t&'Ue aa.ld-~~t.* ~~~-.
~ OSOLARA'1'%0N I.Traey Bicks,beinfl p,.-esently inca"*ettid Ul'lder the. number TDCJ•lDf67300l •. . . . . in the u.a. Coffield Unit of the ~ Oepartment of Criminal Justice,loca~ in .And9rs0n COUnty,Te~,Verify and Declare under ~lty of perjury the ·· foregoing at.ateflienta are true,~ eottect•
&xe:cuted 4~/ J:J, c:Jt~!S ' ' .; IN U TRACY Ul~ I I ' ' STATE OF TEXAS
OOONTY OF ANOBRSON
An'IOAVIT OF 'l9ACY HICKS
This affidavit is made pursuant to Texas Ci vtl· Practice and
aemecUea Code,§l32.
1. "'Mf name is. Tracy Hicks,and I am capable of making this
affida\fit,and the .facta in this afti&lvit 4re true end• correct.
2• I em the ~lator in this cause. Prior to filing of~ thi&
petition for writ of ~~~ wrote the court in which this
c.ue is ~i11.9 and nq\.~Uted copies of tho 1ndict::ment or Wor
maticn,c:ow:t trial rec:Qt't!es,along vith a cop;- of the CIOUt'te docket
she&t· All of Ill¥ requeet have been &man&wered &nd. no documents
sent tome.
I,Tracy Hicks;TOCJ-~Df67300l,bs!nw presently incarC*rated
in the a.-a .. Coffield Unit of the 'reus Depertment of cr-iminal
Justice,located L-. Anderson Ooura:.y,T~xas,vuify &ml declare
under peraalty of p«!rjur-J t;he foregoi~ ·statements are true M~Jl
conect. .
Exec\lt-': -~~ 12:, 2_,0 /5 STATE or !IXAs
cam'lY or ANDDSON
This vedtic:4t1cn of documents is made pursuant Texas Civil
Praotiee end Remedies cede il32.
. .(
l•. "My r.ame is 'fra.c:y Hicks,ana l am capa.ple ot making thia
. aff14avit,a,nd the facts in this affidavit Are· trUe ana. COrJ"e<:t• the ~lator in···tbie ClAuse. All of the dcc:tmlente included
2. I •
fa!'ld nferr~ to in this t»t.i tion for: writ of ~. are t.rWt
Oc)piea~ ONSt«>RN. ~LAAA1'ION·
x Traey Rick8,tDCJ_IDt673001,being presently incarcerated 1n th4\!.
a.a. Cpffield Unit of tbo 'l'GJC~ Department of Crilhi-.1 Juatlce,
located in An<let:son Count.y,Texas,verify and &<.:lue under pQnalt~
of perjutY,~the for-egoirllt a~t:-~ta '&~ tr'Uli# ~1 corre:t. ~~ (£
Executed ; [7] W /$. - · ·, - · I ' ! ' ·; w.v~.o~*" v--vn-y~ I "
OOCUMENT# ~2 L *39 ' T. D. C. J. INS T I T U T 1 0 N A L D I V I S I 0 N DATE 10/03/11 RECORDS OFFICE TIME 09:.28:15 UNIT COFFIELD TDCJID: 00673001 NAME: HICKS,TRACY SENT. BEGIN DATE OS/OG/1993 TDC RECEIVE DATE 07/08/1994 LAST PCR REQUEST 10/03/1j
INMATE STATUS STATE APPROVED TRUSTY CLASS 111 W SENT. OF RECORD YRS 00 MOS 00 DAYS MAND SUPV PAROLE 000+0 lo,LAT TIME SERVED 00018 YRS 04 MOS .29 DAYS 04-6 % 0+6 % GOOD TIME EARNED 00014 Y'RS 10 MOS 15 DAYS 000 03'7 % % WORK TIME EARNED 00008 YRS 06 MOS 11 DAYS 000 0.21 % % MAND SUPV TIME CREDITS 00018 YRS 04 MOS .29 DAYS 046 % PAROLE TIME CREDITS 000+1 Y'RS 09 MOS .25 DAYS 104 % MINIMUM EXPIRATION DTE: 05/06/2033 MAXIMUM EXPIRATION DTE: OS/06/.2033
JAIL GOOD TIME RECD NO NUMBER OF DETAINERS 00 GOOD TIME LOST 00120 DAY'S WORK TIME LOST 00000 DAYS TDC CALC DATE 10/10/1~ PAROLE STATUS BPP DATE *NOT ELIGIBLE FOR MAND SUPV RELE
REQUEST -------- . CONDUCT RECORD: ...... . - . . ~ --~--~'----·-·-·------------------_r· ~~~·--------------~-·--~--~- .. ·... . .'"
THE STA~E 0.~ TEXAS IN TUB 16th JUDICIAL DISTRICT COURT vs .. .IN AND ·FOR JOHNSON COUNTY, TRACV HICKS . CLEBURl~B 'l'EXAS
MOTION FOR SPEEDY TRIAL TO THE HONORABLE JUDGE OF SAID COURT:
TRACY HICI<S,Def~&.n(lant, Moves thEt- Court to order c. epeeoy tr; ial,and ln SUpport of this ~D~ion sh~s;
An indictment in .this action we.s presented on May 1993 .Defendant is eurtently an - . ·. inmate in the Texas Department of Criminal Justice .. The Multi-count indictment acts as a detainer as vritten.
II. Defendant has previously Wl"itten to the Court seeking a .speeeJy resouloution·of the charges as : ¥ri tten in the ae Justice requires. indictment To date the Defendant [1] has not ··heard anythir19 from the Court concerning his prior request o."'ue to pr~ dural issues.
III. Defendant seeks a speedy trial in order that Justice may be done and that he be accorded dUe proceiiS and au& com;se of law as respectively guaranteed by the United States and .Texu Consti.tutione. Barker v. Wingo,92 s.ct.2182 (1972).
Defenaant -asserts that any further delay would result in irrepar1able har:m due. to loss of_ Vitneeaes neceuary to hie &tfense.
WHEREFORE; the Defendant prays thet Court 9rant this motion and order a Hearing, and trial in this matter be .set for a date on or before April 24th 201S,cr,if trial is,not set on or before said date,that the Multi-count indictment be difl misaed on the ground that the defenetant ps been denied his eonstitutiOna.l right to a speedy trial.
Respectfully Submitted, ::r~ Tracy Bie}te,Pro se 2661 FM 2054 ,.
CC:F!le Page (1)
.·;.;: , .... ., .. .,, .
. .. 5~\ . .. :.'' .. ·· .. . . ; ':. ?; . ..~
OAuss no•29:~:~.o •;i; ~ ·. ;u/~i,ri:iE 18th .. niDIClAt. ·DISTRICt' CCORT:
v.s. ' . IN ; AND FO!t ;;'J'OBNSON COUt~'rY,
•t:·~ACY UXCKS · Ct.EllORllS 'l'BXAS §
ORDER' day of,· \ i015 .. c~a1~ on to .be heat"d Defendant •a On thie dat.e t·ha Motion for: Speedy Trtal#&*ld it· appoai-• to the Court that this matter eboul· ·. : ·,_ -: - . \,. ~ '. . ' ~ 'be set for trial~ \ _:'. I ,;·
tor xs.. TBBRStoru~, ORDERED ~h4lt . ~riai.:·~n, ~his' matte., be se·t for th• .··
---- .:. \: .. · ------- DAY OF. ,201$. ': : - ' ' i ' ' ~ I I \ '· \ ; \ \ ;\ . ' . \• \ ., ., ·' ' I
.i ;'\ '. \' ,i_ ( \ : ·V ! : ' ·.\ ( : .. :·' \ ., ' ··r ... . ·,: ': ·: ... ·;: ! . . . . '
d'; \' ,·; CC:f'ile
I CAUSg NO. 29450
.TBB S'l'ATI or-~EXAS IN fHE 18th JUDICIAL OlS~RlCT COURT vs. TRACY HICRS llt AND FOR 30HNSOH COUNTY [1] CLEBtnun: TIXAS *42 ORDS:R
On this the _day of..._2015,came on to be beard Defendant'• Motion for Speedy l'l'ial,and it appear;a to t.ne Court.,that Defendant hae be~~ denied hie ~onetitutional ri;ht t~ a •peedy trial In thie cause and til~ indictment sho11.ld b~ diem!aeed ..
IT IS, TH£R8PORR, ORDSaBD that the Multi-Count indictment in cause number 29450 be dismissed •.
30DGS PR!SIDUlG CCaFile ·~, ..
. I.
I
CERTIFICATE OF SERVlCB · l,~,raoJ~ Bic:ke,do hereby ee"tity that·'a tr\le and correct copy of
the foregoing Defendant • a MotJ.on fo;:o speed:; Trial and Orders *43 . have betln fol:'wardcd by 11f!ite<!t B>f!.G\tes Mail,Poatag• Pl"epaid,to
Dale a&nna,PrCIS\lCU,t:ing Attorney foa Johnson Count,t.'l'exas at; David R • t'loyd f? .. 0. Box 495 Cleburne '.J:x 76033
on t.his the~C:ya ofj1~~ , ~015
'·
~U- ·~6.v;; ••. 2661 Pil 2054 'l'enn. Colony, T~ 75864- .. :~ --~ ·····\
. DOCUMENT d 3 T. D. C. J. I N S T I T U T I 0 N A L D I V I S I 0 N DATE 09/27/12 RECORD~ OFFICE TIME 09:53:49 TDCJID: 00673001 NAME: HICKS,TRACY UNIT COFFIELD SENT. BEGIN DATE 05/0b/1993 TDC RECEIVE DATE 07/08/1994 LAST PCR REQUEST 09/27/1c
INMATE STATUS STATE APPROVED.TRUSTY CLASS III W SENT. OF RECORD 00 DAYS MAND SUPV PAROLE 00040 YRS YRS 00 MOS *44 FLAT T I lYlE SERVED 04 MOS 24 DAYS 00019 048 048 1- 1- GOOD TIME EARNED YRS 1e1 MOS 10 DAYS 00015 000 1- 039 1- WORK TIME EARNED YRS 00 MOS 09 DAYS 000 022 00009 1- ':/. MAND SUPV TIME CREDITS 00019 YRS 04 MOS 24· DAYS 048 ':/. PAROLE TIME CREDITS 13 DAYS 00044 YRS 03 MOS 109 ':/. MINIMUM EXPIRATION DTE: 05/06/2033
MAXIMUM EXPIRATION DTE: 05/06/2033
'
JAIL GOOD TIME RECD NO NUMBER OF DETAINERS 00 WORK TIME LOST 00000 DAYS GOOD TIME LOST 00120 DAYS PAROLE STATUS BPP DATE TDC CALC DATE 10/10/1S REQUEST CONDUCT RECORD:
DOCUMENT# 14 ' NAME: HICKS,TRACY TDCJ-ID NUMBER: GOG"/3001. SID NUMBLR: 02526014 'TDC:,J-ID UNIT OE, r.~s~~3IGNivJt.:N'f': c:::_;r: .. E'IE:.LD *45 HC>USTNG 1\SSIG!.-JfvJE:NT: DOEt-1 P6lB BED: 07.1 ~::-3c:h r;araqr·r:Jph o!·
()nc .i.n rn.or~a conlpOn(·~rlt:S ind:i.ca~:c~d ma.y J.:i.:·~ted l.Jf~:.lO\·'-' ·ceq·u:\._y(::d. Oi"l~:-? i~.~ on.Ly but ly, ay:.1p .. ,, ··, •, i-l·i '. [7] J r·o :f:·;:J E-~ n i .!"i (!d !, f:~ b\:: d(~- 0.1:' :( t: h~::· r f:;a.E3 0 r.: ( S) bt:.l O'i-Y : .l i .'3 ( O.:~Ci
? [~!. '!'HE J\EC()f_;(D IN U IC/-~'f E:S Tl·iAT 'l'Ht:, I NI'-1AT E C{)f-if·J.T ~1 [11] TE;D CNE OJ.<. i~:JUH.i:~
V.'f()'l: .. [NT CUii"11.'NAL .. 't\(.:TS TND.ICl\T.T.NC A CONSCIC>U~3 DT.~:;I{EGl\RD ('OF< .. '1\HE r.T-·JF::~, :·;f.\l~'i~~:.}·:f, on PROPEHT~x~ UF' OTHf~RS; CR 'fH.E Tt·1ST.Z.\l'lT C•_F'F~E!~-i(~~E ()!\ ~~port Y0UL 0rogr~~s ~0 the Board of Pardons and wj.l} r~r0l.8S. ~nd Tr;~-~ ·:~ u j ~-t.-.:j ·:: .i. t ~:; n T t J. -~ .l. :.::-: \.,..! :i. crl [1] .-L ·.: t:~_;_ titlcnt m".:1r·1.~. ~-- ycu .::•1:." t.r~: ... :~ r n r.> ,::j [1] C(.!S r,:c~::q ~~ ~~ h~_)U .1 ..,j y<Jt .. i have a.rJ~:/ q1..:e s t: i=~)nS J::e-~1-:t.rj_:i. nq Lh is ~ot :i.ce· ~-/C.'t} -~-J re t C; ·.rn.:.:.~ t l t· ,.J ~- i c;n~ 1 Far. o ].<--.' \)f f.i. c::;;.
ccn 1:.r_; 1::1:: y.-::-1.! t· u.n .i .. t:
tion jS your written detJlJea
.st-3tein~:~nt. as !:c~qul.reo by Tezas c;o~Ir.:;:r:-nrnent C(>de St::::::L .. L.on ~)()~:. ~~-4-'J (b) ~-~ !:~ y T R !::: \l .T E~ Tt~'
CC: INMATE - TDCJ-ID ' PDKAR008.r,_;:,,PLCO 08/22/2014 STP~TE OF TEXAS DOCUMENT 15 BOARD OF PARDONS AND PAROLES PAGE 1..
NOTICE OF P?.RCLE P:n.NEL DECISION
N.l.l.ME: HICKS, TRACY
SID NUMBER: 02526074 TDCJ-ID NUMBER: 00673001 TDCJ-ID UNIT OF ASSIGNMENT: COFFIELD HOUSING ASSIGNMENT: DORM P62C BED: 095
SUBJECT: Decision Not to Grant Parole - NEXT REVIEW
After a review of your case, the Board of Pardons and Paroles
decision is not to grant you parole and has set your next parole review date as 08/2016 .. You have been denied parole for the reas~n(s) listed below:
One or more components indicated in each paragraph listed below may
apply, but bnly one is required. lD. THE RECORD INDICATES TH?.T THE INMATE HAS REPEATEDLY COMMITTED
CRii:'IINAL EPISODES OR HAS A PATTERN OF SHULAR OFFENSES THAT INDICATES A PREDISPOSITION TO COMMIT CRIMINAL ACTS WHEN RELEASED;
OR THE RECORD INDICATES TH?.T THE INtJ'Jll.TE IS A LEP. .. DER OR ACTIVE
INDICATES A JUVEN~LE OR AN ADULT ARREST OR INVESTIGATION FOR FELONY J\ND t-1ISDEMEANOR OFFENSES.
THE RECORD INDICATES THAT THE INI:-1ATE C0t-1f'1ITTED ONE OR MORE
VIOLENT CRIMINAL ACTS INDICATING A CONSCIOUS DISREGARD FOR THE LIVES, SAFETY, OR PROPERTY OF OTHERS; OR THE INSTANT OFFENSE OR PATTERN OF CRIMINAL ACTIVITY HAS ELEMENTS OF BRUTALITY, VIOLENCE,
01\ C0t·1SCIOUS ::a:.:LECTIOt-: OF VICTI.W S IJULNSJ:-:J\B .. LLl.'l'Y 'l'HA'!' 'T'HF: :::>UC:H INI'-ll".TE P03E:3 A CONTINUING THREAT TO PUDLIC SAFETY; OR THE RECORD INDICATES USE OF A WEAPON. The Institutional Division will monitor your treatment plan progress
and WlJl repnrt your progress to tne Beard of Pardons and Paroles.
Should you have any questions regarding this notice you are to
contact your Lnit Institutional Parole Office.
This Notice of the Parole Panel Action is your written detailed
statement as required by Texas Government Code SECTION 508.1411.
NEXT REVIEW CC: INl"ATE - TDCJ- ID \ .. ( . .
~
DOCUMENT 16 .·~ Novemb~r 3, 2014
Tracy,
My oldest daughter is 21 today. Her name is Kylie. She is in school at Texas State University in San Marcos, below Austin. My youngest, Kyndall is a senior and has a volleyball playoff game tonight. She has been first team all-district the past two years. My son Tyler and I went deer hunting near your home place in Board bottom this weekend. I just wanted to share some Darrell news with you.
I was very disappointed in the results ofthe hearing. I had a long talk with Ms. Peden's paralegal, Grace Edwards. She claims that the charges being grouped together are problematic, and possibly some other things. Regardless, Ms. Peden is still hired to represent you. I only went on what you told me that everyone Ms. Peden represented got out. I hope she can do the same for you, as I can only imagine how beyond ready you are to get out. Not sure when I can make a trip to see you, but I will make a point to on a Saturday, sometime soon I hope. Friends,
\
Darrell . ( MOTION NUMBERil7 r'---.·-~r-•t:_-:..-==-..::..~:•-----------,...---------------------------------; I
#29450 IN THE EX PARTE HICKS TRACY §
! § th
§ *48 ··n § TEXAS ··~·~- ;;.;r- c.n ·~::;b ~ .._·;:t·""-' ';]: s .,._ -4 ORIGINAL ~IOO TO REVIEW TRIAL/APPELLATE RECaiDS FOR PURPOSE OF PREPARING A WRIT OF HABEAS CORPUS RETURNABLE TO THE TEXAS CXXJRT OF CRIMINAL . APPEALS · TO 'l'HE HONORABLE JUDGE OF SAID COURT:
Now Comes the Petitioner Ex Parte Hicks Tracv in the above cause of action Pursuant to and in accordance with the Rules of the Court:Tex. Crim. Proc. I
Code § 11.07 (Vernon's Suoo.2000) and files this Oriaina1 Motion To Review Tria1/Aooellate Records For Puroose Of preoarina A Writ Of Habeas Corous Returnable To The Texas Court Of Criminal Appeals.
Petitioner in the above case number was convicted in the above Court of the offense of sexual assault of a person by guiltv plea on Auqust 1993: and desires to submit a properlv filed Writ of Habeas Corpus returnable to the Texas Court of criminal Appeals.
Pursuant to and in accordance with the Texas Public Information Act, (V .T.C.A., i Government Code § 552.000 et. Seq.) and Tex. Crim. Proc. Code § 11.07(Ve:rnon's ! 2000):and the Due process Clause of the 14th Amendment to the Constitution of I I.
the United States. petitioner request opP0rtunitv to review the above recorns. In re Christensen(App. 7 Dist.2000)39 s.w. 3d. 250 •• Petitioner was entitled to have hearina on Motion f0r·loan of trial and appellate record reaarning aqqravated sexual assault conviction for purpose of preparina aoolication·for writ of habeas corous. which would be returnable to Court of criminal AooeaJs., Vernon's Ann. Texas Code of Criminal procedure art. 11.07 (Supp.2000).
Petitioner Pray that the Court will set this matter down for a hearina:and accord the petitioner opoortunitv to review Trial/Aooellate Records for the Puroose of Prennrina a Writ of ~abeas Corous returnable to the Texas Court of i Criminal Appeals. SO MOVED AND PW\n:D TW\T ROOUESTED RSLIEF BE GRANTED AND .. SIJBIIU'l'IID ON THIS THE _qM_ DAY OF OC'roBER 2012 B'i:- b~ ' PE'l'ITIOOER BE BROUGHT BEFORE THE CCXJRT TO REVIEW THE RECORDS IN ENTIRETY. I· !
i . Pet1. er Pro Se I l
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TRACY HICKS
2661 FM ~2X}(5;4
Tenn. Cly,TX 75884 Oct 9 2012 *49 District Clerk:
P.O. Box 495
Cleburne TX 76033
RE:MOTION TO REVIEW TRIAL/APPELLATE RECORDS
Dear Clerk:
Enclosed for filinq with the Court is Petitioner's motion arid Proposed order for the Court: Upon the filinq of the motion please Provide me a filed marked copy for my records.
Sincerely, CD -< •','c:.,} .. z:-. [0] ~ ~ -4 Ul n :X > CP. c::::J ·-=-o ··< :z c: - i . .::1 CJI'l ·,- j ""T1 i I I I
I MOTION NUMBER il7
'l'RACY HICKS 2661 FM 2054
Tenn- Colony, Tx 75884
November 24, 2012
Office Of The District Clerk
Research Cow~lience ~t
Johnson County Guinn Justice center P .. e. Box 495
Cleburne, i'X 76033
Re; case i 29450 State of t;exas V. Tracy flicks
Dear Clerk;
I r-E.:centl}' wrote ym.a.:- office regard:ing tt·ia1/<'~ppe11ate record.::: in the above case. 'l.'h<:tnk ;rou fot: your: l.:·ep.l y in reference these records. I' arn nc·~;;!ding one corq of the indictment, and one ( 1) covr of th'= Police O:Cfen:se n2pm:t in the above ca::Je number, ~ .so that I may properly prepare and file a vrit of habeas.Areturnable to the ~xas
Court of criminal Appeals; I am not certa:l.n of how many pa.ges these documents l'lla.Y be; would you please tell me the cost of these requested documents? I'm assuming that these documents consist of only 2-3 pages,and therefore in the alterna.ti.ve will try and send your office a $3;00 Money order to cover cost of these records. Thank You for your assistance in this rr~tter
·Sincerely,
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