in Re Michael Lynn Eaton ( 2015 )

April 24, 2015
FILED IN COURT OF APPEALS
12th Court_o^ADpealsJpistrict
Cathy 5. Lusk, Cleric
12th Court of Appeals
Suite 354
1517 W. Front Street
Tyler, Texas 75702 \a-V5-oo 11&<£- TYLER 1 fcXAb
CATHY S. LUSK, CLERK |
Re: Michael Lynn Eaton
Criminal Application tor Writ of Mandamus
Frcau 115th Judicial Dist. Court, Upehur Count*, Tx.
Cause nc. 15074
Dear Court Clerk;
Enclosed with thie cover letter, please find Relators Abdication for Writ
of Kandassua (4 pe^ea)
Please consider this an original application and open a file tor sax*.
Relator certifies that all parties subject to this application for Writ of
Mandamus have been served with a copy of this application by U.S. Mil.
If you have any questions or concerns please do not hesitate to contact
we at the address or phcrie number Hated below. I thank pm in advance for
j'our tins and considerations in processing ray application.
Sincerely,
Michael Lynn Baton
Relator, ^ro-se
1652213
Beto Unit 1391 FM 3328
Tennessee Colony, Tx. 75860
(903) 928-2217
cci Carolyn Parrot, Upshur County District Clark
Deanna Drennan, Court Reporter for Upshur County
Upshur County District Attorneys Office
file
cwB.ia-i.T-re/tfi-cg-
MICHAEL LY»i EATOW, IN THE 12TH COURT OF APPEALS
Relator
v.
115TU DISTRICT COURT OF UPSHUR COUNTY, §
CAROLYN PARROTT, DISTRICT CLERK \
DhAtm DREMsAK, COURT REPORTER, f
Respondents I J jr;
fiikq
APPUCA1ION FOR WRIT OF W^HLEATHYS^U"
TO THE HONORABLE JUDGES OF THE TWELFTH COURT' OF APPEALS; COMES NOW, hichael
Lynn Eaton, Relator ano files this Application for Writ of Mencamue directing the
Respondent sitting Juc^e of the 115th Judicial District Court of Upshur County,
Texas to instruct/order the Respondent District Clerk and Court Reporter to choose
one of teh three (3) methods offered to thee tc provide Relator with the copies
of relators Records relating to his conviction in Cause no. 15074 aIon* with a MM
of the Transcript of the Plea Hearing in this cause of action, so that Relet** can
prepare and perfect hifts Appeal of his conviction via an 11.07 Writ of habeaa corpus.
I
JURISDICTION
in* iith Ccust ex Appeals has exclusive and original jurisdiction over this
Mandamus Petition pursuant to Art. 5§8 of the Texas Constitution en© yajMMMt to
the Texas government Code §24.007 and 24.309.
IX
HISTORY OF PREVIOUS REQUESTS / EXHAUSTION OF REMEDIES
1. On August 31, 2012, the Upshur County Clerks office referred Relator to
contact the Court Reporter to request a copy of his Court Transcripts.
2. On February 19, 2013, Relator requested a ptg* and cost summary from the
Upshur County District Clerk and Court Reporter.
3. On March 2o, 2C13, Relator submitted a follow-up letter to the Upshur County
District Clerk after receiving no response from either office.
4. On April 15, 2013, the District Clerk cited a 1.00 per pe*e cost tor copies
and ayain referred Relator to contact the Court Reporter.
5. On April 21, 2013, Relator submitted (a^ain) letters to both the District
Clerk and the Court Reporter requesting a page ano cost summary (ie to
provide the number of pages and costs per document),
6. On May 6, 2013, Respondent, District Clerk again quoted the l.oo per pays
cost but again failed to provide the page count or summary requested by
Relator. Again the Court Reporter failed to respond to Relators request.
7. On May 22, 2013, Relator once again clearly pointed out to the District
Clerk that he needed a page arid cost summary and needed this "total* in
order to affect a withdrawl from his Inmate Turst Fund Account.
8. On July 8, 2013, after further inquiry was not responded to, filed objection
to the clerk and Reporter fees in motion form along with an attached affidavit
of inability to pay costs (In Forma Pauperis). Wo response was made by
either the District Clerk or the Court Reporter. The notion was not heard.
9. On December 23, 2013, after researching the options I had, prepared and
submitted an application for Writ of Mandamus, including six exhibits and
•ailed sane to the 115th District Court arid sending copies to the Upshur
County District Attorneys office and the District Clerk. My Mandamus was
refused by the District Clerk, and thus was n»vmt heard or considered.
10. On September 26, 2014, again after additional research and consultation,
and again after' no responses by the District Clerk/Court Reporter or rulings
by the Court, Relator again sent his "proposed* three options for the Clerk
to choose free so as to previde delator with his requested copies of Records
and Transcripts. The Options were 1: A personal copy (free), 2: a copy
on loan, or 3: to pay .10 per page for copies.
11. On October 14, 2014, Relator received his FIRST response from the court
Reporter. The Court Reporter did not "choose" one of the three options,
and provided Relator with an "estimated cost of $2,00u.00" for the Court
Reporters record without a page or cost summary or any page counts. The Clerk
die not respond to Relators request nor choose any of the three options. It
does not appear that Relators In Forma Pauperis was processed.
12. On January 8, 2015, Relator filed formal motions in the Trial Court one
motion titled "Motion Requesting Preservation of Evidence" and the second
titled "Motion Requesting Transcripts". Relator sent copies to the District
Clerk, the Court Reporter, and to the District Attorneys Office. Relator
formally requested that his motions be brought before the Court and that
a HEARING be held to consider and rule upon his motions. Relator did not
receive a reply from the Clerk or Court lUfiiatai' No hearing was ever
scheduled or held on his motions.
13. On March 20, 2015, Relator prepared and sent a letter directly to the Judge
of the 115th Judicial District Court, the Honorable Lauren Parish, requesting
that the Judge look into and inquire as to why Relator was not getting
the copies necessary for his Appeal and as to what the problem was for
the Clerk or Court Reporter in choosing one of the three options. Mo response
was received from the Judge by the Relator. The Relator has heard nothing
further from the Court Clerk or Court Reporter. No hearing has been held.
Ill
ARGUMENT AND AUTHORITIES
Pursuant to Texas government Code $52,047, it states (a) "A person may apply
for a transcript of ten evidence in a case reported by an official court reporter*
The person must apply for the transcript to the official court reporter. The
official court reporter SHALL furnish the transcript to the person 'no later than
the 120th day after the date the; 1) application for the transcript is received
by the reporter; and 2} transcript fee is paid 'or the person eetablishes indigency
as provided by rule 20 of the Texas Rules of Appellate Procedure.' Relator fully
complied with TRAP Rule 20 and has submitted his application to proceed In Forma
Pauperis. Relators claim of indigence has not been contested. The District Clerk
appears not to have complied with TRAP Rule 20 and has not sent a copy of his
In Forma Pauperis to the Court Reporter (based upon her response to quote Relator
a cost of $2,000.00 for his Court Records)(Id. #11 herein). Since the Respondents
have not timely filed a contest to Relators In Forma Pauperis Application , Relators
allegations of indigence "will be deemed true" and Relator "will be allowed
to proceed without advance payment of costs". TRAP Rule 20. See also TRAP Rules
40(e)(3) and 53(j). Relator has made a prima facie showing of indigence. Horn&by v.
State, 65 S.W.3d 801 (Tx. 2001) See also. Mcfatridye v. State, 309 S.W.3d 1 (TCA 2010).
"An indigent criminal defendant has the constitutional ri*ht to a free appellate
record in his first appeal of right" quoting Scott v. State, 80 S.W.3d 184 (2003).
(App. 10 2003), See also: Turner v. State, 71 S.W.3d 928 (App. 10 2001)(USCA amend, 14)
"Trial court Judge had authority to hold hearing on defendants motion for a
free reporters record" TRAP Rule 20.2. r. g, .state. 55 S.W.3d 625.
According to Sparkman Relator must request Record from Court Reporter and request
a hearing en his application. Relator has cccrpiieo with both requirements. It is
well settled and "there is no question that an indigent defendant is entitled
to a free transcription of prior proceedings for an effective defense or appeal."
quoting Lav-son v. State, 696 S.W.2d 828 (Tx.App. 13 1995)/ See also. Britt v. Worth
Carolina, 92 Set. 431,433 (1971), Griffin v. Illinois, 76 Set 565, Biliie v. State,
605 MM 556,565 (TCA 1980), and Anaour v. State, 606 SW2d 891,4*93 (TCA i960).
In the- case of White v. State, ftS SW2b 15 (App 8 1990) this Texas Appellate
Court cited Britt where the U.S. Supreme Court identified two factors in the
establishing of a need for transcripts and records. They said that 1) the value
of the transcript of the former trial to the defendant in connection with the
Appeal or trial for which it is sought, and 2) the availability of alternative
devices that would fulfill the same function as the transcript Britt @434. Britt
made it clear that it will be assumed that the transcript is of value and the
"State bears the burden of disproving either of the above mentioned factors."
Appellant states for the record that he has no other means of obtaining the
documents, records, and transcripts but through the Clerk and Court Reporter.
Relator has provided three options to chooe from to provide the documents he
requests, including a reduced fee which Relator , even though he is indigent,
has agreed to pay. Relator , at the least believes he has met the burden to
be excused by statute from paying these fees by virtue of his affidavit of
indigency. See: In re Lee Children, 36 S.W.3d 702 (App. 10 2001) Relator believes
that the denial of his requests represents an unreasonable interference with
his riflht to pursue hsi appeal and his access to the courts. (Tx.Const. Art 1$13),
(USCA Amend. 1). Seat Dallas County v. Sweitser, 881 S.W.2d 757 (App. 5 1994).
Relator will be filing his request for leave to Appeal with his Habeas Corpus.
RELIEF REQUESTED / PRAYER
PREME81S CONSIDERED, Relator, Michael Lynn Eaten PRATS that this
Honorable Court of Appeal OUK hsi application for Writ of Mandamus by virtue
of the facte and arguments contained herein, that they agree that Relator nee no
other remedy at law to compel the Trial Court to perform a ministerial function
to provide him with the papers to prosecute his appeal and that this Court ORDER
the Trial Court, District Clerk, and Court Reporter to choose one of three options
offered by Relator and forthwith provide him with the copies ne has requested.
Respectfully submitted,
Michael KgM Eaton
Relator, Pro-se
1652213
leto Unit 1391 FM 3328
Tennessee Colon*, Tx. 75880
(903) 92S-221?
UNSWORN DECLARATION
I, Michael Eaton, do hereby swear under the penalty of per^ur^ that the
facts and statements mace herein are true and correct.
Sworn and signed on this the H. day of gjftjs ,2015, __
•^ M.
CERTIFICATE OF SERVICE
I, Michael Eaton, do hereby certify that I placed a copy cf this "Mandamus"
into a proper wrapper with sufficient pre-paid U.S. first class postage aitaxed,
and adressed same to the parties listed here below and placed same into the
available mailing system used for such legal mail. ffl/foLA_M/Z^L-
Certified on this the ^day of fiffiu , 2015. Michael Lyi
SENT TO:
CATHY S. LUSK, CLERK TWELFTH COURT OF APPEALS
SUITE 354, 1517 W. FRONT STREET, TYLER, TEXAS 75702
CAROLYN PARRCTT, DISTRICT CLERK AND DEANNA DkENNAN, COURT REPORTS*.
115TH JUDICIAL DISTRICT COURT OF UPSHUR COUNTY
405 E. TITUS STREET, PC BOX 1052 CILMRE, TEXAS 75644-1052
UPSHUR COUNTY DISTRICT ATTORNEYS OFFICE, 115TB JUDICIAL DISTRICi COURT
405 E. TITUS STREET, GILMER, TEXAS 75644-1052
cc: file