Desilets, Paul Ray ( 2015 )

Paul R. Desilets
T.D.C.J.# 1581093
7405 Hwy 75 S.
Huntsville Texas 77344
Goree Unit
May 27th, 2015
Louise Pearson, Clerk
·rexas Court Of Criminal Appeals
P.O. Box 12308 RECE~VED ~N
Capitol Station lCOORT OF CRfiVIINAl APPEALS
Austin Texas 78711-2308 JUN 03 2015
Dear Louise Pearson.
Please find enclosed Realtor's Motion To File Application For Writ
l
Of Mandamus. Could you please file ~his with the Honorable Court Of Criminal
Appeals, and bring it to their attention. Could you also time stamp and return
to above offender.(motion for leave to file is also included)
Thank You for your assistance in this matter.
Desilets
."
CAUSE NO.
IN RE: PAUL R. DESILETS, ID# 1581093 § IN THE COURT OF
Realtor §
§
vs. § CRIMINAL APPEALS
§
§
KATHLEEN HAMILTON
§
MONTGOMERY COUNTY JUDGE 359th. J.D.C. AUSTIN TEXAS
§
Respondent
REALTOR'S MOTION FOR LEAVE TO FILE ORIGINAL APPLICATION
FOR WRIT OF MANDAMUS IN FORMA PAUPERIS
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Paul R. Desilets, Realtor, Pro-Se pursuant to Article 72.1 of the Texas
Code of Criminal Procedure and Article 4.04 § l, and 11.07 § 3(d), of the Texas
Code of Criminal Procedure, and asks this Honorable .Court's permission for leave
to file an "Original Application For Writ Of Mandamus Informa Pauperis," under
trial Court habeas Cause No. 08-12-11262-CR-I, II. Realtors declaration of inability
to pay cost is attached as Exhibit 1, In support thereof Realtor would show the
following.
I.
HABEAS TRIAL COURT'S REFUSAL TO PERFORM IT'S MINISTRIAL DUTY
On October 6, 2014, Realtor filed an Application of Habeas Corpus in the
trial Court No. 08-12-11262, along with a Memorandum in support of the 11.07, an
Appendix of exhibits with a perponderance of evidence, a Motion asking to Proceed
As A Veteran, a Motion For Discovery; and A Motion For A Hearing By Conference Call
all in the above cause.
On October 27, 2014, State filed their answer to Application for 11.07, along
with the State's Finding of Facts and Conclusion of Law, asking for dismissal.
On November 6, 2014, Judge Hamilton signed an Order denying relief in the
359th Court and dismissed the 11.07, for failure to comply with Rule 73.1 of the
Rule of Appellate Procedure.
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On November 20, 2014, the State filed it's Motion to Vacate it's Finding of
Facts and Conclusion of Law and Designation Of Issues. Stating that Applicant has
Amended and Corrected his Application for 11.07, and the State no longer recomends
dismissal. It was signed November 26, 2014, by Judge Hamilton. In the State's
Designation of Issues the State concluded "having considered Application for writ
of habeas corpus and the Court's file for the above captioned case, the Court finds
that the following issues of;fact should be resolved.
1. Was the Applicant denied effective assistance of counsel? The Court further Ordered
trial attorney John Choate, to provide an affidavit within 30 days of the Order
answering 9 questions. This was also signed by Judge Hamilton on November 26, 2014.
On November 24, 2014, Realtor filed his Objection to the State's Finding of
Facts and non-ruling of Motions presented with the 11.07 application, and his Motion
for Appointment of Counsel, along with a Motion of leave to exceed the limits of
15,000 words respectively.
On December 8, 2014, Realtor filed his second Objection of State's proposed
Designation of issues and the Court's non-ruling of Motions in his habeas proceeding.
On December 26, 2014, Ineffective Assistance of Counsel filed his Affidavit
titled Affidavit of John E. Choate, J,r. attempting to answer the 9 questions put
forth by the 359th Court.
On January 15, 2015, time stamped January 21, 2015, Realtor filed his Objection
to the Affidavit of John E. Choate, Jr. Objecting to the half answered and mostly
disillusion responses.
Consequently the trial Court has REFUSED to rule upon any motion's put forth
by Realtor, and in fact has exhausted it's six month deadline for addressing all
designated issues 1n this habeas corpus in accordance with the Rules of Appellate
Procedure, or perform any other fact finding necessary to adjudicate Realtor's valid
Habeas claims. realtor has exhausted his remedies and has no other adequate remedy
at law.
.
Because the acts suoght to be compelled are ministrial, not discretionary
in nature, Realtor asks this Honorable Court's permission to GRANT his, "Motion
For Leave To File Original Application For Writ Of Mandamus."
2.
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II.
UNDERLYING HABEAS ISSUES
It can be shown that theorder:designating issues entered by the trial Court
and the order for affidavit, were ordered to resolve valid habeas claims. Realtor
recieved the ordered affidavits and provided the proper response. Failure of the
Court to further the habeas proceeding with a final Finding of Facts and Conclusion
of Law and to grant relief or forward to the Court of Criminal Appeals, will prevent
Realtor from having his claims adjudicated based on an accurate record compelled in
a fair manner, and consistant with the demands of Due Process. This will allow
Realtor to show cause.and prejudice in· subsuquent federal writ litigations. These
underlying habeas claims, when substantiated, will entitle Realtor to relief.
III.
CONCLUSION AND PRAYER
As stated above, Realtor has put the Court on notice of enforcing its ruling
on motions for submission, and has gone beyond the requirements of Article 11.07,
to date, Realtor has recieved no response regarding any of his pleadings or corres-
pondence to the Court.
WHEREFORE, PREMISES CONSIDERED, Realtor, paul R. Desilets, Pro-Se, Prays
that this Honorable Court GRANT hsi Motion For Leave To File Original Application
For Writ Of mandamus, and issue process to compel the habeas trial Court to perform
this ministerial duties.
Executed on this 27th day of May, 2015.
SWORN DECLARATION
I, Paul R. Desilets, being presently incarcerated in the Goree Unit of the T.D.C.J.
in Walker County, Texas, under penalty of purjury, do hereby affirm that the facts
put forth above are true and correct.
Executed on the 27th day of May, 2015.
3.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE ,z,~.i/;:::9 /1 ~;
IN-FORMA-PAUPERIS DATA 1 0: ;:::9 : 31ZI
#: 01581093 SIQ#: 07443240 LOCATION~ GOREE INDIGENT DTE~ 03/27/13
AI'1E:· DEf.-3ILETS,PAUL. RAY BF~GINNING PERIOD: 1.1/1211./l'+
PREVIOUS TDCJ NUMBERS:
CURRENT BAL: 0.00 TOT HOLD AMT: 0. 0tZ1 3t"'TH TOT DEP:
GMTH DEP: 0.00 GMTH AVG BAL: 0.00 GMTH AVG DEP: 0.00
MONTH HIGHEST BALANCE TOTAL DEPOSITS MONTH HIGH~St· BALANCE TOTAL DEPOSITS
IZII+./15 0 .. 1/.:10 0 .. IZIIZI 1211/1.5 0.00 0.00
(?.13/1. 5 0.00 0. tZI0 12./1 L~ 0.00 0.00
02./15 0.00 0.00 11./14
PROCESS DATE HOLD AMOUNT HOLD DESCRIPTION
:::nr=tTE OF TEXAS COUNTY OF \AAXl \cu'l- ·
ON TI-·IIS THE "'l...~iAY OF 'fJSiil,···-·-··-:-····-··?i>~ I CEFHIFY THAT THIS DOCUMENT IS n TRUE,
C0tr1PL..En:::~ AI'·.ID tJ.NALTEf{ED -·-E·CJ13\r··~1A.i)"f:( BY. !r1E OF I NFOF~I\1AT I ON CDNTA I f\.IED IN THE
COMPUTER DATABASE REGARDING THE OFFENDER'S ACCOUNT. NP SIG:
t5.8.J.fl. ~.;3.. .~ OF< 3 I D NUMDEF<: . . -.. -.. .·--·--·-.. . . . . . _
PF 1-I..·IELP PF:O;--E:.ND EI\ITEr< NEXT TDCJ j\.II..Jt11BER ~
,.
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EXHIBIT 1 · ·
DECLARATION OF INABILITY TO PAY COST
(The following Declaration is made pursuant to the Texas Rules of Civil Procedure and Title 6,
Chapter 132 of the Texas Civil Practices and Remedies Code.)
Now respectfully comes Paul R. Desilets TDCJ
#---=1-=-5-=-81=-0~9:....::3:..__._ _ _ _ _ _ , and declares that I am unable to pay the court costs in this civil action
and requests leave of the. Court to proceed in forma pauperis in this accompanying civil action and·
would show the Court the following:
(1) I am presently incarcerated in the ~oree Unit Unit of the
Texas Department of Criminal Justice where I am not permitted to earn or handle money.
(2) I have no source of income or spousal income.
(3) I currently have $__o_o_._oo______ credited to me iri the Inmate Trust Fund.
(4) During my incarceration in the Texas Department of Criminal Justice I have received
. approximately $ 00. oo per month as gifts from relatives and friends.
i
·;
(5) I neither own nor have ari interest in any realty, stocks, bonds, or bank accounts and I !
i
receive ho interest or dividend income from any source.
(6) I have __1_ __;___ dependents.
(7) I have total debts of approximately$ 1000.00
(8) I owe$ -20. ooo as restitution.
(9) My monthly expenses are approximately $._o_o_._o_o___
I, Paul R. Desilets TDCJ
#_..,.l_..l_S!.L8..!.!10.t...9.L.3,___ _ _ _ _ , being presently incarcerated in the Goree unit Unit of
the Texas Department of Criminal Justice in _ __,w....,a..,.l.!>..ke£r...___ _ _ _ _ _ _ County, Texas, verify
and declare under penalty of perjury that the foregoing statements are true and correct. Executed on this
the 27th day of May
Name
TDCJ#__l~5~8~1~09~3~---~-------
CAUSE NO.
IN RE: PAUL R. DESILETS § IN THE COURT OF
Realtor §
§
§
vs. CRIMINAL APPEALS
§
§
KATHLEEN HAMILTON
§
MONTGOMERY COUNTY JUDGE 359th. J.D.C. AUSTIN TEXAS
Respondent §
REALTOR'S ORIGINAL APPLICATION FOR WRIT OF MANDAMUS
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Paul R. Desilets, Realtor, Pro Se, in the above styled and numbered
cause of action and files this Original Application For Writ Of Mandamus, pursuant
to Articles 11.07 § 3(d) and 4.04 § 1, of the Texas Code of Criminal Procedure,
and would show the following.
I. REALTOR
Paul R. Desilets, T.D.C.J.# 1581093, is an inmate incarcerated in the Texas
Department of Criminal Justice's Goree Unit, and is appearing Pro Se, who can be
located at 7405 Hwy, 75 S., Huntsville Texas 77344. On October 6, 2014, Realtor
filed his Original Application for a Writ of Habeas Corpus in the 359th Judicial
District of Montgomery County. The application was assigned Habeas trial Court
cause No. 08-12-11262-CR.
Respondenti the Honorable Kathleen Hamilton, in her capacity as Judge of the
359th Judicial Court, Montgomery County, Texas has a ministerial duty to make a
"findings of fact" as set forth by T.C.C.P. Article 11.07 § 3(d), enforce any
orders issued as set forth by T.C.C.P. Article 11.54, and rule upon pr9perly
1.
J'
filed Motions taken under advisement. The Honorable Kathleen H~milton, in the
359th Judicial District Court, Montgomery County, Texas may be served at her
place of buisness at 301 N. Main St. Conroe Texas 77305.
III. T,C C p STATUTORY REQUIREMENTS
The portions of T.C.C.P. applicable to this application, state:
If the cx:nvictirg cart decides that there are cx:ntrovertoo previously 1.lllreEOlVOO facts mich
I
are material to the le:jality of the Afplicant 's cx:nfinarent, it stall enter an orcl:?r within 20
days of the expiratim of the tine all~ for the state to reply., designatirg the issues of
fact to I:E rerolvoo. 'Ib rerolve tha:e iSSLeS the cart may order affidavits, dej;nsitirns, interro-
gatories, cdlitimal forensic testirg, am hEBrirgs, as v.ell as pers;:rBl recollectim ... after
the cx:nvictirg cart rrakes firdirgs of facts or c3fPIDVes the firdirgs of the ferEm designatEd
to rrake than, the clerk of the cx:nvictirg cart stall imrEdiately transnit to the cart of Criminal
Af:l:e3ls, uriler me cover, [the writ record].
T.C.C.P. ARTICLE 11.07 § 3(d)(emphasis added)
'Ihe cart of J"Lrl3e grantirg a writ of hat.e3s OOrp.lS may grant neceffi3rY orders to brirg I:Efore
her the testirrmy taken I:Efore the exarninirg (burt 1 am may iSSLE precess tO enfOrce the atten-
d:nce of witnesses.
T.C.C.P. ARI'IClli 11.54 (EJTiiB.sis irl:1e;:J)
'Ihe cart ofCriminal Af+eals am Each Ju::ge thereof stall have, am is herEby given, the~
am authority to grant am iSSLE. am cause. the issuance of writs of hat.e3s OOrp.lS, am, in
criminal law matters, the writs. of M3n::Enus •••.
T.C.C.P. ARI'IClli 4.04· § l.
'
IV. RESPONDENT HAI'IJILTONS 'S IN VIOLATION OF T. C. C. P. ART. ll. 07
Respondent Hamilton is in violation of article 11.07 §3(d) of the Texas
Code of Criminal Procedure, by failing to enforce the Court's 6 month deadline
of March 6,2015, and by failing to make a "finding of facts" to be·transmitted
to the Honorable Court of Criminal Appeals.
As is clear from Realtor's objections, he has repeatedly put Respondent
Hamilton on notice that he seeks the enforcement of the Court's December 26th, 2015,
order of affidavit of John E. Choate, Jr. and Realtor's objection to said affidavit
filed on January 15,2015, time stamped January 21, 2015, and a "finding of facts"
to be transmitted to the Court of Criminal Appeals.
Realtor has exhausted his remedies and has no other remedy of law. The acts
sought to be compelled are ministerial, not discretionary in nature. see Lanford
V;--Fourteenth C~u-rt of Appeals, 847. S.W.2d 581, 586(Tes.Crim.App.l993')_. - -~-=·
2.
,•
,,
I
As this Court noted in McRee V. Hampton, 824 S.W.2d 578, the Legislature
has been"very restrictive in its directions to the trial Courts of this State" in
order to ensure an expeditious adjudication of habeas claims.
V. RESPONDENT HAMILTON'S REFUSAL TO RULE ON PENDING MOTIONS_
Respondent Hamilton has refused to perform her ministerial duty to consider
and rule upon Realtor's pleadings within a reasonable period of time.
Realtor properly filed a " Motion for Discovery" on October 6, 2014, a"Motion
Asking to Proceed as a Veteran" on October 6, 2014, a {'Motion for Hearing by Confer-
ence Call" on October 6, 2014. Each Motion was attached to a cover letter requesting
that they be set for submission./Also
(
On December L 2014, Realtor filed an Objection
along with a "Motion Requesting Appointment of Counsel" and a "Motion of Leave to
Exceed the Perscribed Limit of 15,000 Words". Although each motion was filed with
the Court on the above date's. Realtor has recieved no response or action from
Respondent Hamilton reqarding his properly filed motions.
As is clear from Realtor's filinas of Obiections· he has reapeatedly put
Respondent Hamilton on notice of her failure to rule on his pleadinqs in a reasonable
period of time.
A trial Court is required to consider and rule upon a motion within a
reasonable time. see Barnes V. State, 832 S.W.2d 424, 426(Tex.App.-Houst.[lst.Dist.l
1992, orig. proc.) see also Kissam V. Williamson, 545 S.W.2d 265, 266-67(Tex.Civ.
App.-Tyler 1976 orio. proc.~(mandamus will issue where a trial judqe_refuses t~ act
within a reasonable time.) "When a motion is properly filed and pendina before a
trinl Court, the act of oivino consideration to and rulina unon that motion is a
ministerial act", and mnndamus may isslle to compel the trial Judge to act.
O'Donneley V. Golden, 860 S.W.2d 267, 267~70(Tex.App-Tyler 1993 oriq. proc.); see
also Eli Lilly and Co. V. Marshall, 829 S.W.2d 157,158 (Tex.l992)(trial Court abuses
its discretion by refusing to conduct. hearinq and render decision on motion); ~~s.
V. Schuble, 788 S.W.2d 205, 207(Tex.App.-Houst.[l4th Dist.] 1990 orig. proc.)
(mandamus is appropriate to require trial Judqe to . hold hearing and exercise
discretion).
Here, Respondent Hamilton's refusal to perform .her ministerial duty in a
reasonable period of time is clearly an attempt to delay the resolution of
Realtor's valid habeas claims that, when substantiated, will entitle Realtor to
relief. Realtor requests that this Honorable Court issue an order compellinq the
habeas trial Court to rule upon his properly filed motions.
3.
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VI. CONCLUSION AND PRAYER
As stated above, it is necessary that the Court enforce its deadline of 6
months to complete its habeas process so that Realtor's habeas claims can be
properly adjudicated on their merits. Additionally, Realtor cannot fully substantiate
his habeas claims without the discovery requested in his "Motion for Discovery~'
Respondent Hamilton's failure to adhere to the applicable statutes and perform her
ministerial dities, undermines the entire judicial process. Failure of this Court
to qrant Realtor's Writ of mandamus will allow him to show cause and prejudice in
subsequent federal writ litigation.
WHEREFORE, PREMISES CONSIDERED, Realtor prays that this Honorable Court of
Criminal Appeals instruct Respondent Hamilton to comply with her ministerial duties.
CERTIFTCATE OF SERVICE AND MAILING
I, Paul R. Desilets, beinq presently incarcerated in the T.D.C.J.-Goree
Unit, Walker County, Texas.and under penalty of purjury, do hereby affirm that
I have delivered a copy of this foreqoinq "Realtor's Motion For Leave To File
Original Application For Writ Of Mandamus in Forma Paperis" to the prison mailroom
officials first-class postaqe prepaid, for mailinq to:
Louise Pearson, Clerk Honorable Kathleen Hamilton, Judqe
Texas Court of Criminal Appeals 359th Judicial District Court of
P.O. Box 12308 Montqomery County, Texas
Capitol Station 301 N. Main Street
Austin Texas 78711-2308 Conroe Texas 77305
Executed on this the 27th day of May, 2015
c:~~ Paul R. Desilets-Affiant
4.