Cisneros, Felix Hernandez AKA Cisneros, Felix ( 2015 )

CAUSE NO. F11-60536-U
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IN RE
FELIX CISNEROS § IN THE TEXAS COURT
v. OF CRIMINAL APPEALS
THE STATE OF TEXAS AUSTIN, TEXAS
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TO THE HONORABLE UUSTICES OF SAID COURT:
COMES NOW, FELIX H. CISNEROS, Petitioner herein; and would
respectful1y show this Court the following:
Petitioner (Cisneros) was convicted in the 291st Judicial District
Court fo~ Aggravated Sexual Assualt with ~ Deadly Weap6n and .
sentenced to serve a Life sentence in the Texas Department of Cri~inal
Justice-Institutional Division on October 25, 2012. Cisneros' direct
appeal was mandated on June 25, 2014. He then filed his Writ of
Habeas corpus, Art. 11.07 (TEX. CODE CRIM. P.) on April 7, 2015. He
subsequently filed a petition 4nto that Court to order the State
to answer his writ pursuant to TEX. CODE .CRIM. P. ·Art. 11.07 §3(b);
however this was met with silence. ·
Traditionally, a writ of mandamus is issued only to compel the
performance of a ministerial act or duty, but the writ is also
available to correct a clear abuse of discretion by the trial court.
Further, a trial court abuses its discretion for mandamus purposes
if it reaches a decision so arbitrary and unreasonable as to amount
to a clear and prejudicial error of law. In RE H.E.Butt Grocery Co.,
17 S.W.3d 360 (Tex. 2000), 366-67; Walker v. Packer, 82/ S.W.2d 833,
839·:'(Tex. 1992). · .
Mandamus may be available upon: 1) a showing that a trial court
clearly abused its discretion. b~ failing to correctly apply the law,
and 2) the benefits and detriments of mandamus render appeal
inadequate. In RE, Pi~er, 105 S.W.3d 107 (Tex. 2003); In RE Schmitz,
285 S.W.3d 451 (Tex. 009) .. . ·
For mandamus purposes, a ministerial act requirement is requirement
that Relator has "a clear right to the relief sought," meaning that
the relief sought must be "clear and indisputable" such that its
merits are "beyond dispute" with "nothing left to the exercise of
discrection or judgement.'" Id. Piper, at 108[4].
Furthermore, a trial court has no discretion in de~ermining what
the law is or in applying the law to facts, thus, said failure by
the trial court to analyze or apply the law correctly will ~onstitute
an abus~ of discretion. In RE Paso Del Norte Surg. Ctr., 281 S~W. 3d
521 (Tex. 2008).
Texas Code of··eriminal Procedure, Art. 11.07 §3(b) reads in
·pertinent part that the attorney representing the State "shall
answer the application not later than the 15th day after the date
the copy of the application is recieved." This statute is clear.
Cisneros filed his post conviction writ of habeas corpus into the
291st Judicial District Court on April 7, 2015 and to date, the
State has failed to answer said writ.
§3 (b) ~lso states that the court clerk is· responsible for
insuring the application is assinged to that court. For this purpose,
right or wrong, Cisneros is presuming the clerk of the court has
complied with her mini~terial duty.
§3 (c) ord~rs the convicting court to decid~ whether there are
controverted; previously unresolved facts material to the legality
of applicant s confinement. With or without findings, the clerk
is suppose to file all of the documents into the Court of Criminal
Appeals.: Tb aate, Cisneros has not recieved no'tice from any court
pertaining to his writ of habeas corpus. ·
The law is clear and indisputable. The court recieved notice from
Cisneros that the State's ministerial duty had been abandoned, and
given the court's knowledge of this fact atid its failuie to rectify
the problem, renders its decisions here arbitrary and unreasonable-
a clear abuse of discretion-leaving only mandamus as the viable
remedy.
Cisneros would ask the Honorable Court by way of relief, to order
the 291st Judicial Court to fulfill its ~inisterial duty and demand
the State to properly answer his writ of habeas corpus as the law
prescribes. ·
Petitioner prays this Honorable Court will grant the appropriate
relief as requested.
Under penalty of perjury, Petitioner, Felix Cisneros, avers
to all .of · the facts and statements herein. He also swears that
a copy of this mandamus was forwarded to the convicting court .
. )- .
Signed this JS-.-:day of· De~_ember, 2015.
Mr. Felix H. Cisneros
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TDCJ-ID-Bilr Clements Unit
9601 Spur 591
Amarillo, TX 79107