Bolivar, Randall ( 2015 )


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    '-··
    Randall   Bolivar:-:#n1i'71~379
    Ellis Unit
    1697 FM 980
    Huntsville, Te-5i i:(~~
    Cameron County D.A.'s Office
    ~   ...·"
    •..
    CAUSE NO.
    IN THE TEXAS
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    RANDALL BOLIVAR,                              §
    Realtor                                  §    Relief Sought From Order of
    §    Thirteenth Court~of Appeals
    vs.                                           §    Cause No~ 13-14-00157-CR
    §
    THIRTEENTH COURT OF APPEALS,                  §
    Respondent                             §
    MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS
    TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
    Comes now Randall Bolivar, Realtor pro se, and. respecfully.moves the Court
    ·to grant leave to   fil~   a petition for   writ~of    mandamus, pursuant to Rule 72,
    Texas Rules of Appellate Procedures.
    Realtor asserts that th8 matters that he intends to raise are extraordinary
    in Texas Jurisprudence, once he is able to obtain a complete record of which
    is the primary focus of     ~mis   complaint and request for relief.
    Wherefore, Realtor prays the Court will GRANT LEAVE.
    Respectfully Submitted,
    ;£__/U~
    Randall Bolivar, Pro Se4
    Realtor
    Ellis Unit, TDCJ .# 1719379
    1697 FM 980
    Huntsville, Texas 77343
    CAUSE NO.
    IN THE TEXAS
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    RANDALL BOLIVAR,                           §
    Realtor ·                             §   Relief Sought From Order of
    §   Thirteenth Court of Appeals
    vs.                                        §   Cause No, 13-14-00157-CR
    §
    Thirteenth Court of Appeals,               §
    Respondent                            §
    MOTION FOR EMERGENCY STAY OF PROCEEDINGS
    TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
    Comes now Randall Bolivar, Realtor pro se, and   re~pectfully   ma~essthis
    Honorable Court to STAY the proceedings in Cause No.      13-14-00157~CR   from the
    Thirteenth Court of Appeals. In support shows:
    1. Realtor's Appellate Brief is due to be filed in the appellate court on
    or before May 14, 2015.
    2. Realtor has not received a complete copy of the Clerk's Record.
    3. Realtor has filed a motion to abate the appeal in order to supplement
    the record, and have a copy provided to Realtor, and it was denied.
    4. The record is devoid of written findings of fact and conclusions of law
    on the motion to supress statement challenging the voluntariness.
    5. Realtor filed ammbtion to abate.the appeal to enter findings, but it was
    unexplicably dismissed as moot.
    6. Real tor· is incarcerated and has no way::: by which to notify by expedited
    means any other party, but is being notified as promptly as possible.
    7. Realtorohas no ability to exercise ~ts due dilligence be~ond what has
    already been exercised with all parties, at all levels. Wit~o~t the
    emergency stay of proceedings, Realtor would suffer irreparable harm.
    Wherefore, Realtor prays the Court will GRANT the STAY of proceedings.
    Respectfully Submitted,
    ~~
    Randall Bolivar, Pro Se
    Realtor
    Ellis Unit, TDCJ # 1719379
    1697 FM 980
    Huntsville, Texas 77343
    CERTIFICATE OF SERVICE
    I, Maria   s.   Rey, certify that a true and correct copy of the above and fore-
    qoing documents were served on opposinq counsel for the State at:
    Cameron County District Attorney's Office         Chief Staff Attorney
    901 Leopard St., 10th Flr.
    964 E. Harrison St.
    Corpus Christi, Texas 78401
    Brownsville, Texas 78520
    Service upon counsel was made by fax, First Class Mail, or hand-delivery.
    SIGNED AND SERVED ON THIS1JDAY OF     ;lljtJ:}
    List of Motions:
    Motion .For leave to File Petition For Writ of Mandamus
    Motion For Emergency Stay of Proceedings
    I'
    Randall Bolivar# 1719379
    Ellis Unit
    1697 FM 980
    Huntsville, Texas 77343
    May S, 2015
    Texas Court of Criminal Appeals
    Clerk of th= Court
    P. 0. Box 1 2308, Capitol Statdlonr•
    Austin, Texas 78711-
    RE:
    PETITION FOR WRIT OF MANDAMUS
    ·c                                                AND
    EMERGENCY STAY OF APPELLATE PROCEEDINGS
    Dear    Clerk of the Court:
    Enclosed for filing with the Court, please find my PETITION FOR WRIT OF
    MANDAMUS AND EMERGENCY STAY OF APPELLATE PROCEEDINGS.
    I humbly request that this matter be prompty brought to the attention of
    the    ~ourt   due to the time constraints invloved.
    Thank you for your time and consideration. God Bless You!
    Respectfully Submitted,
    Randall Bolivar, Pro Se
    cc:
    Chief Staff Attorney, 13TH COurt of Appeals4--\/'1ft riS:2.11i;:.l&i> 1'11-:+1!. 'k11/ os!o GCJOI 'IJ1CI ;t.S(.,
    Cameron County D.A.'s Office
    I'   \1
    CAUSE NO.
    IN THE TEXAS
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    IN RE RANDALL BOLIVAR,
    REALTOR
    vs.
    THIRTEENTH COURT OF APPEALS,
    RESPONDENT
    APPELLATE CAUSE NO. 13-14-00157-CR
    FROM THE THIRTEENTH COURT OF APPEALS, EDINBURG, TEXAS
    TRIAL COURT CAUSE NO. 09-CR-2869-A
    FROM THE 107TH DISTRICT COURT, CAMERON COUNTY, TEXAS
    PETITION FOR WRIT OF MANDAMUS
    AND
    EMERGENCY STAY OF APPELLATE PROCEEDINGS
    RANDALL BOLIVAR, PRO SE
    REALTOR
    ELLIS UNIT, TDCJ # 1719379
    1697 FM 980
    HUNTSVILLE, TEXAS 77343
    ,·
    Identity of Parties
    REALTOR!:
    Randall Bolivar, Realtor
    Randall Bolivar, Pro Se
    Ellis Unit, TDCJ # 1 719379
    1697 FM 980
    Huntsville, Texas 77343
    RESPONDENT:
    Thirteenth Court of Appeals, Respondent
    Chief Staff Attorney, for Respondent
    Nueces County Courthouse
    901 Leopard St., 10th Floor
    Corpus Christi, Texas 78401
    ii
    TABLE OF CONTENTS
    Id~ntity    of Parties                                                       ii
    Table of Contents                                                           iii
    Index of Authorities                                                       iiii   I
    Statement of Case                                                             1
    Staement of Jurisdiction                                                      2
    Issues Presented                                                              3
    Statement of Facts                                                            3
    Arguement and Authoriti~                                                      4
    Issue # 1                                 4'
    Respondent court failed or refu~ed to act in accordance with its mi~isL~~i~
    ministerial duty to ensure Realtor was provided a complete Clerk's
    Record on appeal, pursuant to RULE 34~5(a), TRAP, and order from the
    trial court.
    Issue # 2                                5
    Respondent failed or refused to act ih accordance with its
    ministerial dutyvto have the trial court enter written findings of
    fact and conclusions of law regarding th~ contested voluntariness of
    Realtor's custodial statement to police, as required under ARTICLE 38.22
    § 6, CCP and WICKER V. STATE, 
    740 S.W.2d 779
    (CCA 1987); or in the altern~
    ative, order a new hearing on the motion to supress statement.
    Issue # 3                                 6
    Respondent dismissed as moot a matter which is, apparent from the ~sco~,1
    record, still a live controversy and needed by Realtor for appellate
    briefing.
    Summary of    the~Arguems~t                                                   7
    Prayer for Relief                                                             7
    Notice of Pro Se Litigants                                                    7
    Certification of Service                                                      8
    Verification by Affidavit                                                     8
    Notice to Interested Parties                                                  8
    Ap,Jendix
    iii
    INDEX OF AUTHORITIES
    STATUTES:
    Article 3B.~2 § 6, cce                                                 .   .2' 3' '5
    Rule 25. 2, TRAP ' .                                                               4
    Rule 33 .1 , TRAP         ..                                                       4
    Rule 3.4. 5, TRAP                                                ..        . 1 ' 3' 4
    Rule 52, TRAP      ..                          . .                    .. .          1
    TEXAS CONSTITUTION:
    ARTICLE 5, Section 5(c)                                                         1' 2
    CASE LAW:
    AMADOR V. STATE, 
    221 S.W.3d 666
    , 676-77 (CCA 2007) .                              .4
    BONHAM V. STATE, 644 SW2d 5,B (CCA 19B3).                                      • 5
    DAVIS V. STATE, 
    499 S.W.2d 303
    (CCA 1973).                                      5' 6
    DEMOSS V. GRAIN, 636 F3d 145 (5TH CIR. 2011).                                    6
    DYKES V. STATE, 
    649 S.W.2d 633
    ,636 (CCA 19B3).                                   • 5
    FIGUEROA V. STATE, 
    473 S.W.2d 202
    (CCA 1971).                                      6
    GREEN V. STATE, 
    906 S.W.2d 937
    (CCA 1995).                                         5
    HARRIS CO. APP2~DISt.~H~TGffi~STAL CffiQBIDS,L105~3B,183S~~~.A~~-~6Uatpn1~999). .4
    IN RE BENAVIDES, 
    403 S.W.3d 370
    (Tx. App. SanAAntoriio 2013).                      6
    IN RE COLONIAL PIPELINE CO., 96B SW2d 93B (TEX. l99B).                           2
    JACKSON V. DENNO, 37B U.S. at 391, B4 S.Ct. at 17BB (1964).                      5
    JOHNSN V. QUARTERMAN, 595 F.Supp2d7Y35 (S.D. Texas 2009).                       .7
    MANNING V. ENBRIDGE PIPELINES, 
    345 S.W.3d 71B
    (Tx.App. Beaumont 2011).           . 6
    McKITTRICK V. STATE, 535 SW2d B73;B76 (CCA 1976).                             5, 6
    MENDEZ V. STATE, 135 SW3d 334(CCA 2004).      .   .                              7
    NAVISTAR V. VALLES, 
    740 S.W.2d 4
    (Tx.App. ElPaso 19B7).                       • 4' 6
    NEVEU V. CULVER, 
    105 S.W.3d 641
    , 642 (CCA 2003).                                   2
    RANGRA V. BROWN, 566 F3d 515 (5TH CIR. 2009).                                   .6
    STATE V. DUNBAR, 
    297 S.W.3d 777
    , 7BO (CCA·2009).                                   4
    STATE EX REL. HILL\!V. FIFTH COURT OF APPEALS, 34 SWl3d 924, 927 (CCA 2001) .... 2
    STATE EX REL. ROSENTHAL V. POE, 
    98 S.W.3d 194
    , 19& (CCA 2003).                   . 2
    STATE EX REL. WILSON V. BRIGGS, 171 TEX.CRIM.479, 
    351 S.W.2d 892
    . (1961) . . .    .2
    U.S. V. BANKS, 624 F3d 261 (5TH CIR. 2010).          '·                          
    6 U.S. V
    . ROBINS0N, 7B F3d 172 (5TH CIR. 1996).                                   .7
    UTPA V. DE LOS SANTOS, 
    997 S.W.2d 817
    (Tx.A~~~ Corpus Christi 1999) ......... ~ .. 4
    VANCE V. HATTEN, 
    508 S.W.2d 625
    (CCA 1974).                                      • 2
    WICKER V. STATE, 740 SW~d 779 (CCA19B7).                                   2, 3, 5
    WHITEHEAD V. STATE, 
    130 S.W.3d 866
    (CCA 2004).                                     4
    iiii
    CAUSE NO.
    IN THE TEXAS
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    IN RE RANDALL BOLIVAR,
    REALTOR
    vs.
    THIRTEENTH COURT OF APPEALS,
    RESPONDENT
    APPELLATE CAUSE NO. 13-14-00157-CR
    FROM THE TIRTEENTH COURT OF APPEALS, EDINBURG, TEXAS
    TRIAL COURT CAUSE NO. 09-CR-2869-A
    FROM THE 107TH DISTRICT COURT, CAMERON COUNTY, TEXAS
    PETITION FOR WRIT OF MANDAMUS
    AND
    EMERGENCY STAY OF APPELLATE PROCEEDINGS
    TO THE HONORABLE JUDGES OF THE COURW OF CRIMINAL APPEALS:
    Comes now Randall Bolivar, Realtor pro se, in the above-styled and numbered
    cause of action and respectfully files this Petition For Writ of Mandamus and
    ~mergency   Stay of Appellate Proceedings, pursuant to RULE 52 of the Texas Rules
    of Appellate   Proc~dure   (TRAP); ARTICLE 5, SECTION 5(c) of the TEXAS CONSTITUTION;
    and mandates of this Honorable Court.
    Realtor humbly requests this Honorable Court grant this petition and stay the
    appellate proceedings from which this matter arises. In support,,Realtor respec-
    tfully shows the Court as follows:
    STATEMENT OF THE CASE
    Realtor seeks relief from    Respondent's~;Denial   of Appellant's Second Motion
    to Abate The Appeal-   S~pplementation    of the Clerk's Record as Ordered by the
    Trial Court, in which Realtor sought to have the trial court's cl7rk provide
    the Realtor with a complete copy of the entire Clerk's Record pursuant to an
    order by the trial court and RULE 34.5 (a), TRAP,
    (1 /8)
    Additrnonally, Realtor seeks relief from Respondent's Dismissal as Moot of
    Realtor's Appellant's Third Motion to Abate the Appeal- Required Written Find-
    ings of Fact and Conclusions of Law, in which Realtor sought to have the trial
    court provide written findings of fact and conclusions of law regarding the
    contested voluntatiness of his custodial      §~~tement   to police, pursuant to the
    mandatory language of ARTICLE 38.22 §6, TEXAS OODE OF CRIMINAL PROCEDURES (CCP),
    and WICKER V. STATE, 
    740 S.W.2d 779
    (CCA 1987).
    Respondent is the Court of Appellate jurisdiction for the Thirteenth District
    of Texas which sits in Corpus Christi-Edinburg, Texas.
    Realtor filed the two   motions,v~rna   certified mail no. 7014 0510 0001 2015
    1556, and Respondent denied the Second Motion To Abate,        whi~e   dismissing as
    moot the Third Motion To Abate, on April 29, 2015. No written order or opinion
    were entered by the Respondent. The Appellate Brief is currently due to be filed
    on or before May 14; 2015. Hence, Realtor seeks a stay of appellate proceedings.
    STATEMENT OF JURISDICTION
    In pertinent parts, ARTICLE 5, SECTION 5(c) of the TEXAS CONSTITUTION states:
    '' ... the Coutttof Criminal Appeals, and the Judges thereof shall have the
    power to issue the Writ of Habeas Coipus, and in Criminal matters, the
    Writs of Mandamus ••. "
    "The Court and the Judges thereof shall have the power to issue such other
    Writs as may be necessary to protect its jurisdiction or enfo~ce its judg-
    ments."
    The Court of Criminal Appeals is court of     last~resort    in Criminal matters and
    no other Texas court has authority to overrule or circumvent decisions, or dis-
    obey mandates. STATE EX REL. WILSON V. BRIGGS, 1J1 Tex. Ctim. 479; 
    351 S.W.2d 892
    (1961); VANCE V. HATTEN, 
    508 S.W.2d 625
    ~(CCA 1974).
    The CCA has jurisdiction in a matter where a Defendant has no "adequate app-
    ellate remedy, and therefore [can]     obtain mandamus relief from order." IN RE
    COLONIAL PIPELINE CO., 
    968 S.W.2d 938
    {Tex. 1998).
    An en bane Court wrote:
    "Mandamus relief may be granted if the realtor can demonstrate-that 1) the
    act sought to be compelled is purely .ministerial and 2~'that realtor has
    no other adequate legal remedy. STATErEX REL. ROSENTHAL V. POE, 
    98 S.W.3d 194
    , 198 (CCA 2003). The ministerial act requirement has been described:
    as a requirement that the realtor have 'a clear right to the relief
    sought' meaning that the relief souhgtEmust be 'clear and indisputable'
    such that it merits are ~~~ygrid dispute' with 'nothing left to the exe-
    rcise of discretion or judgment.'
    
    Id., quoting STATE
    EX REL. HILL V. FIFTH COURT OF APPEALS, 
    34 S.W.3d 924
    , .,
    927-28 (CCA 2001 )."NEVEU V. CULVER, 
    105 S.W.3d 641
    , 642 (CCA.2003)(EN BANC).
    Under the facts and circumstances in this case, this matter is properly
    (2/8)
    ,before this Honorable Court, as Realtor has no other adequate appellate remedy.
    ISSUES PRESENTED
    1. Respondent court failed or refused to act in accordance with its ministerial
    duty to ensure Realtor was provided a complet~ Clerk's Record on appeal, pu-
    rsuant to RULE 34.5(a), TRAP, and order from the trial court.
    2. Respondent failed or refused to act in accordance with its ministerial duty
    to have the trial court enter written findings of fact and conclusions of
    law regarding the contested voluntariness of Realtor's custodial statement
    to police, as required under ARTICLE 38.22 § 6, CCP and WICKER V. STATE,
    
    740 S.W.2d 779
    (CCA 1987); or in the alternati~e~ order a new hearing on the
    motion to suppress statement.
    3. Respondent dismissed as moot a matter which is, apparent from the record,       G
    still a live controversy and needed by Realtor for appellate briefing.
    STATEMENT OF FACTS
    CLERK'S RECORD:
    1. Clerk's Record was filed in the appellate court on or about May   27~   2014,
    consisting of one volume of 130 pages.
    2. After abatement, and remand, the trial court ordered the District Clerk to
    supplement the record, to include all filings 1Supp.RR:pp.19and22), and pro-
    vide Realtor with the same.                                 .
    3. Clerk filed a Supplemental Clerk's Record on ot about March 18, 2015; how-
    ever, it was filed under the wrong cause number .. (filed in 13-15-00157-CR),
    consisting of 288 pages.
    4. Realtor filed his Appellant's Secorid Motion To Abate The Appeal- Supplemen-
    tation of The Clerk's Record as O~dered by The Trial Court, via certified
    mail no. 7014 0510 0001 2015 1556.
    5. Realtor filed his Appellant's Notice of Advisory and ·Affidavit in Support
    Thereof, via certified mail no. 7014 0510 0001 2015 1525, notifying Respond-
    ent, Trial Judge, and opposing counsel for the State of the failure or refu-
    sal to provide Realtor with.the complete Clerk's Record as ordered.
    FINDINGS OF FACT AND CONCLUSIONS OF LAW:
    1. ~ealtor filed a Motion To Suppress The Statement of the Accused(KCR-1:p.12),
    andaa hearing was held on December 2, 2010. (RR-8).
    2. Realtor attacked the voluntariness of his statement. (RR-8:p.27).
    3. Realtor filed a Post-trial Motion Requesting Findings of Fact and Conclusions
    of Qaw. (Supp.CR-1 :pp. 103 ~nd 125- however, a page filed is missing from
    the record as filed).
    4. Realtor initially refused to give a statement and indicated on his Miranda
    Ri©bts Form, that he wanted his attorney present. (RR-8:p.56;RR~28:SX 1).
    5. Realtor testified that even after he refu~ed to give a statement and request
    counsel, that detectives continously prompted him to speak with them and give
    a formal statement; which he subsequehtly did out of fear o~ repercussions
    to be felt by his friends whom were arrested with him. (RR-8:pp.43-46).
    6. Realtor filed, pro se, Appellant's Third Motion To Abate The Appeal- Requir-
    ed Written Findings of Fact and Conclusions of Law, via certified mail no.
    7014 0510 0001 2015 1556, in the appellate court •
    . ( 3/8)
    On April 29, 2015 Respondent DENIED Appellant's Second Motion To Abate, and
    DISMISSED AS MOOT Appellant's Third Motion To Abate.
    ARGUMENT AND AUTHORITIES
    Stat~~ory     provisions are mandatory and exclusive, and must be complied with
    in al respects. UTPA V. DE LOS SANTOS, 
    997 S.W.2d 817
    (Tex. App. CORPUS CHRISTI
    1999);   HARRI~    CO. ARRRAISAQ DIST. V. COASTAL LIQUIDS TRANS., L.P., 
    7 S.W.3d 183
     (Tex. App. Houston [1st Dist.J 1999).         Additionally,~"A          [court] is presumed to
    have acted within [it's] discretion unless the record discloses to the contary;
    It must be a     ~lear   abuse of discretion apparent from the record.'' NAVISTAR V.
    VALLES, 
    740 S.W.2d 4
    (Tex. App. El Paso 1987).
    ISSUES:f1: Respondent court failed or .refused to act in accordance with its
    ministerial duty to ensure Realtor was provided a complete Clerk's Record on
    appeal, pursuantt~o RULE 34.5(a), TRAP, and order from the trial court.
    As filed, or as provided to the Realtor,         th~   Clerk's Record is devoid of
    numerous filings by both parties and orders of the .trial court. Realtor requires
    the entiterrecord in order to review and appeal ''those matters that were raised
    ,by written motion filed and ruled on before trial.'' RULE 25.2 (a)(2)(A), TRAP.
    This is a prerequisite to presenting a complaint. for appellate review. TRAP RULE
    33.1(a). In STATE V. DUNBAR, the Court stated:
    "Rule 33.1 provides that as a prerequisite tp presenting a complaint for
    appellate review, the record must show that the complaint was made to the
    trial court by a specific and timely request, objection, or motion." 
    297 S.W.3d 777
    , 780 (CCA 2009).
    Indeed, under RULE 34.5(a), TRAP, "the record mustiinclude" the motions and
    orders   R~altor    is requesting be supplemented,and providedtto him, under RULES
    34.5(a)(2) and (5). Realtor made a verbal request to the trial. court, which was
    granted, and submitted written designations in accordance wLth RULE                  34~5(c).    r
    The Texas Court of Criminal Appeals (CCA) has previously written:
    "As we stated in WHITEHEAD V. STATE, [130 SW3"d 866 (CCA2004)], 1 the record
    may be supplemeDted under appellate rules if something has been omitted, ..•
    It ensures that the record on appeal accurately reflects all of the evidence
    that was seen by, used by, or considered by trial. judge at the time he made
    a ruling ... If the parties have a dispute over what i terns a·re missing from
    the appellate record, or they dispute the accuracy or completeness of thos~
    items, the trial court will resolve that dispute." AMADOR V. STATE, 221 SW~d
    666, 676-77 (CCA 2007).                                                        .
    In the instant case,       R~altor   has disputed the completeness of the record, and
    -   ~·" -~
    opposing counsel for the State argued the· recor-d .:was .. lackiling: 1documentation. (see
    State's Brief, p .18; filed in COA Causer:No. 13-14-00157-CR). Additionally, Real-
    tor intends on raising issues which will have to be reviewed by Respondent und-
    er a de novo standard of review. As such, Respondent would be forced to abate
    (4/8)
    ·the appeal and order the supplementation     if those matters are not in the reco-
    rd filed. Regardless if they werer filed in the appellate court, RealtorThas
    not received the complete record and cannot proceed to prosecute his appeal
    with vigor and lawful tenacity without a complete Clerk's Record to document the
    dozens of motions filed by parties, trial court's adjudication of motions, and
    other matters as necessary. Under e&ther theory, the Realtor is suffering from
    undue delay by the Respondent, and possibly inviting further error.
    ISSUE 12: Respondent failed or refused to act in accordance with it~ ministerial
    duty to h~ve the trial court enter written findings of fact and conclusions of
    law regarding the contested~:voluntaiiness of.Realtor's custodial staiement to
    police, as required under ARTICLE 38.22 § 6, CCP and WICKER V. STATE, 
    740 S.W.2d 779
    (CCA 1987); or in the alternative, order a new hearing on the motion to
    supress statement.
    It is "apparent from the record" that Respondent failed or refused to act as
    requited by law. Pursuant to WICKER V. 
    STATE, supra
    ,          and its progeny, Realtor
    is entitled to have the Respondent abate the appeal and order the trial court
    to produce written findings of fact and conclusions of law regarding the
    motion to suppress,h6r   ab~te   the appeal and   o~der   a new hearing on the motion
    to supress. In WICKER V. STATE, the. Court smlidified its position on the requi-
    rement of written findings by the trial court:
    "Indeed, we reiterate.our prior.holdings to the effect that ARTICLE 38.22
    § 
    6, supra
    , is mandatory in its language and that it requires a trial court
    to file its findings of fact and conclusions of law regarding the voluntar-
    iness of a confession whether or not the defendant objects to the absence
    of such omitted filing. McKITTR1~K V. 
    STATE, supra
    , at 876; DYKES V. STATE,
    
    649 S.W.2d 633
    , 636 (CCA 1983). The ~rocedure used in the trial court to
    determine the voluntariness of a defendantts confession must ~be;fully
    adequate to insure reliable and clear-cut determination~6f the voluntarin-
    ess of the confession, ~ncluding the resolution of the disputed facts upon
    which the voluntariness may. depend.' JACKSON V. 
    DENNO, 378 U.S. at 391
    , 84
    S.Ct. at 
    1788, 12 L. Ed. 2d at 924
    (1~64)."
    A few years later in GREEN V. STATE, thisi:Honorable Court once again express-
    ed its command to Texas trial and intermediate appellate courts on this matter:
    "When ruling on the admissability of a defendant's statements, the trial
    court must 'enter an order stating its conclusions as to whether or not
    the statement was voluntar~ly made, along with specific findings of fact
    upon which the conclusion was based, which order shall be filed among the
    papers of the caus~. 1 Tex.Code Crim. Proc. Ann. art. 38.22, § 6. This'Court
    has held that '[t]he requirements oF Article 38.22, .•• are mandatory and
    require the trial court to file its findings regardless of whether the de-
    fendant does or does not object. 1 BONHAM V. STATE, 644 SW2d 5,8 (CCA 1983)
    (citing McKITTRICK V. STATE, 
    535 S.W.2d 873
    (CCA 1976); DAVIS V. STATE, 
    499 S.W.2d 303
    (CCA11973))." 
    906 S.W.2d 937
    (CCA 1995).
    The proper action, or remedy, for Respondent to have taken, as conceded by
    the State (Supp.RR-1 :p.11; State's BriefA p.22 n. 2), is for the app~al to be
    (5/o)
    abated to enter written findings. When, like in this case, "no findings are made
    to support the ruling of the trial court on the voluntariness issue, as in FIG-
    UEROA V. STATE, 
    473 S.W.2d 202
    (CCA 1971); DAVIS V. STATE, 
    499 S.W.2d 303
    (CCA 1973)
    (opinion on ori~inal submission); McKITTRICK V. 
    STATE, supra
    , the duty of the
    appellate court is clear. The proepr procedure is that the appeal be abated and
    the trial judge will be directed to reduce to writing his findings on the disp~­
    ted issues surrounding the taking of appellant's        confes~ion."       GREEN   ~t   S78ij~
    Furthermore, absent written findings, Realtor is unable to properly cite the
    brief or contest the findings of fact and conclusions of law           reac~ed.
    Additionally,   ~    matter of significant importance is the fact that the State
    has stipulated to the proper action and remedy. (Supp.RR-1 :p. 11; State's Brief
    p.22 n. 2). A stipulation constitutes a judicial admission, and is conclusive
    on the issue adressed, ilihich estops the parties from claiming to the contrary.
    MANNING V. ENBRIDGE PIPEt[NES L.P., 
    345 S.W.3d 718
    Tex. App. Beaumont 2011). An
    evidentiary stipulation such as this one is binding on both parties. U.S. V.
    '    '
    BANKS, 624 F3d 261 (5TH CIR. 201 0) ·'·
    Clearly the record shows Respondent         acted arbitarily and in an unreasonable
    manner "that is without consideration and in disregard of facts and circumstan-
    ces of the case," 
    NAVISTAR, supra, at 6
    , when it disregarded the concession by
    the State, and Realtor's requests      ~nd   entitlementsto written findings of fact
    and conclusions of law, supported by Inmate's Declaration,and the record. As
    such, the Respondents failure or refusal to require the trial court to                  produc~,
    and provide to Realtor, written findings, as well as give no written opinion on
    said dismissal as moot, is ,;~ithdub reference to any guiding rules and princip-
    les." IN RE BENAVIDES, 
    403 S.W.3d 370
    (Tex. APP. SAN ANTONIO 2013).
    ISSUE 13: Respondent dismissed as moot a matter which is, apparent from the
    ±ecbrd, still a live controversy and needed by Realtor for appellate briefing.
    A claim is moot when the parties are no longer adverse parties with suffici-
    ent lebal interests to maintain the litigation. DEMOSS V. CRAIN, 636 F3d 145
    (5TH CIR. 2011). Conversely, a case is not moot as long as a live controversy
    exists between atleast one plaintifr and one defendamt. RANGRA V. BROWN, 566
    F3d 515 (5TH CIR. 2009).
    Herein, Real tor has san; 1ongoing and live controversy with the State in the
    R§spondent's   for~m.    Realtor can not possibily hope to effectively prosecute
    his claim(s) in the appellate court without the ministerial duty complained of
    being executed.    Abatement of the appeal by Respondent would serve to promote
    justice, avoid further prejudice to Realtor, and promote judicial economy.
    (6/8)
    '   .   '   ~
    SUMMARY OF THE ARGUMENT
    The acts complained of were ministerial as imposed by the exclusive and
    mandatory provisions of the statutes, and binding precedent setforth by this
    Honorable Court. Respondent abused its discretion in acting clearly contary
    to well-settled law, whether that law is derived from statute, rule, or opinion
    of the Court. The duty to be performed was a "systemic requirement," MENDEZ V.
    STATE, 
    138 S.W.3d 334
    (CCA 2004), and spelled-out with such certainty that nothi-
    ng was left to exercise discretion.
    Respondent's action was alcllear and preoudicial error of law where no
    adequate remedy ae law exists.
    These exigent circumstances; due to the importance of the issues raised,
    the limited time before the brief is due,.the further irreparable harm to
    Realtor~from   the underlying   ~rongful   conviction, and certainty that the Respon-
    dent was in error; dictate that a stay of all appellate proceedings be required.
    PRAYER FOR eE[[EF
    Wherefore, premises considered, Realtor prays this Honorable Court will
    GRANT the Petition For Writ of Mandamus, directing Respondent to:
    1. Ensure the Realtor is provideR a complete copy of the Clerk's Record;
    2. Ensure the tri~l court produce and provide written findings of fact
    and conclusions of law on the motion to supress the statement to the
    Realtor, or hold a new hearing on the motion to supress the statement
    and reduce to writing its findings; and
    3. STAY the appellate proceedings until the above-noted actions are taken
    Respondent, wherein the appellate time-table will restart anew.
    Respectfully Submitted,
    Randall Bolivar, Pro Se
    Realtor
    Ellis Unit, TDCJ # 1719379
    1697 FM 980
    I:Huii'EsViiJ.iJ.§, Texas 77343
    NOTICE OF PRO SE LITIGANTS
    Courts construe pleadings filed by pro se litigants under a less stringent
    standard then those drafted by attorneys; thus, pro se pleadings are entitled
    to a liberal construction that includes all reasonable inferences that can be
    drawn from them. JOHNSON V. QUARTERMAN, 
    595 F. Supp. 2d 735
    (S.D. Tex. 2009'). Pro
    se pleadings must be treated liberally as seeking proper remedy. U.S. V.
    ROBINSON, 78F~3d 172 (5TH CIR. 1996).
    (7/8)
    '   '.
    CERTIFICATE OF SERVICE
    I, Maria S. Rey, certify that a true and correct copy of the above and fore-
    qoing documents were served on opposing counsel for the State at:
    Cameron County District Attorney's Office            Chief Staff Attorney
    964 E. Harrison St.                                 901 Leopard St., 1DTRl.Rilir.
    Corpus Christi,Texas 78401
    Brownsville, Texas 78520
    Service upon counsel was made by fax, First Class Mail, or hand-delivery.
    SIGNED AND SERVED ON THISliDAY OF       li!J
    \
    STATE OF TEXAS             §
    §
    COUNTY OF WALKER           §
    REALTOR'S AFFIDAVIT IN SUPPORT
    I, Randall Bolivar, being presently incarcerated within TDCJ-CID, O.B. Ellis
    Unit, located in Walker County, Texas, declare under penalty of perjury, with-
    out the United States, that the facts stat~d in the abbve and foregoing petiti-
    on for writ of mandamus are true,,correct and complete pursuant to Title 28
    usc § 1746 (1).
    EXECUTED ON MAY 5, 2015.
    Randall Bolivar, Affiant
    NOTICE TO INTERESTED PARTIES
    All concerned and interested parties have ten (10) days to rebut this Affi-
    davit under penalty of perjury, and sworn oath by Notary Public, point-for-
    point,- and to transmit said rebuttal to Affiant USPS Cert. Mail with Return
    Receipt Requested, signed and dated by affiant within ten (10) days of
    receipt by party.
    (8/8)
    STATE OF TEXAS         §
    §
    COUNTY OF     WALKER~§
    REALTOR'S AFFIDAVIT OF CERTIFICATION OF DOCUMENTS
    I, Randall Bolivar, being presently incarcerated within TDCJ-CID, O.B. ELLIS
    UINT, located in Walker County, TExas, declare under penalty of perjury, with-
    out the UNITED STATES, that       the;<~attached   two documents sent fromtithe Thirteenth
    COurt of Appeals are the original copies sent to Realtor. Additionally, th=r
    facts stated herewith are true, correct and complete pursuant to Title 28
    usc 1 746 -(1 ') •
    EXECUTED ON May 5, 2015.
    Randall Bolivar, Affiant
    NOTICE TO INTERESTED PARTIES
    All concerned and interested parties have ten day~~to rebut this Affidavit
    under penalty of perjury, and sworn oath by Notary Public, and transmit said
    rebuttal to Affiant Cert, MAil, RR~, signed by affiant and dated within ten
    days of reciept.
    CHIEF JUSTICE                                                               NUECES COUNTY COURTHOUSE
    901 LEOPARD, 10TH FLOOR
    RCGELIO VALDEZ
    CORPUS CHRISTl, TEXAS 78401
    JUSTICES                                                                    361-888-0416 (TEL)
    361-888-0794 (FAX)
    NELDA V. RODRIGUEZ
    DORI CONTRERAS GARZA.
    HIDALGO COUNTY
    GINA M. BENAVIDES
    ADMINISTRATION BLDG.
    (:ourt of      ~peals
    GREGORY T. PERKES
    100 E. CANO, 5TH FLOOR
    NORA L. LONGORIA
    EDINBURG, TEXAS 78539
    956-318-2405 (TEL)
    CLERK
    DORIAN E. RAMIREZ              tEbirteentb mtsttict of tEexas             956-318-2403 (FAX)
    www. txcourts. gov/13thcoa
    April 29, 2015
    Mr. Randall Bolivar #1719379                  Hon. Luis V. Saenz
    Ellis Unit                                    District Attorney
    1697 FM 980                                   964 E. Harrison
    Huntsville, TX 77343                          Brownsville, TX 78520-7123
    *DELIVERED VIA E-MAIL*
    Hon. Rene B. Gonzalez
    Assistant District Attorney
    964 E. Harrison Street, 4th Floor .
    Brownsville, TX 78520
    * DELIVERED VIA E-MAIL *
    Re:       Cause No. 13-14-00157-CR
    Tr.Ct.No. 2009-CR-2869-A
    Style:    Randall Bolivar v. The State of Texas
    Pro· Se's third motion to abate the appeal - required written findings of fact and
    conclusions of law in the above cause was this day DISMISSED AS MOOT by this
    Court.                                                            '
    Very truly yours,
    ~~$. ~~
    Dorian E. Ramirez, Clerk
    DER:mrq
    c   •
    NUECES COUNTY COURTHOUSE
    CHIEF JUSTICE
    901 LEOPARD, 10TH FLOOR
    ~QGELIO VALDEZ
    CORPUS CHRISTl, TEXAS 78401
    361-888-0416 (TEL)
    JUSTICES
    361-888-0794 (FAX)
    NELDA V. RODRIGUEZ
    DORI CONTRERAS GARZA
    HIDALGO COUNTY
    GINA M. BENAVIDES
    ADMINISTRATION BLDG.
    GREGORY T. PERKES
    NORA L. LONGORIA                 QCourt of ~peal~                      100 E. CANO, 5TH FLOOR.
    EDINBURG, TEXAS 78539
    956-318-2405 (TEL)
    CLERK
    DORIAN E. RAMIREZ             Qi;birtttntb mt~ttitt of Qi;exa~         956-318-2403 (FAX)
    www. txcourts. gov/13thcoa
    April 29, 2015
    Mr. Randall Bolivar #1719379                Hon. Luis V. Saenz
    Ellis Unit                                  District Attorney
    1697 FM 980                                 964 E. Harrison
    Huntsville, TX 77343                        Brownsville, TX 78520-7123
    * DELIVERED VIA E-MAIL *
    Hon. Rene B. Gonzalez
    Assistant District Attorney
    964 E. Harrison Street, 4th Floor
    Brownsville, TX 78520
    * DELIVERED VIA E-MAIL *
    Re:       Cause No. 13-14-00157-CR
    Tr.Ct.No. 2009-CR-2869-A
    Style:    Randall Bolivar v. The State of Texas
    Pro Se's motion to abate appeal - supplementation of the clerk's record as
    ordered by the trial court in the above cause was this day DENIED by this Court.
    Very truly yours,
    ~~·$. 7\~
    Dorian E. Ramirez, Clerk
    DER:mrq