IN THE COURT OF APPEALS
TWELFTH DISTRICT OF TEXAS
TYLER.. TEXAS
FILED m COURT OF APPEALS
No 12-14-00292-CR 12fo Cc.-rt of Appeals District
In re JUAN ENRIQUEZ. Relator TYLER
CATHY S. LUS
Original Proceeding from Anderson County, Texas
87th Judicial District Court, No. 87-9821
Honorable Deborah A. Oakes Evans Judge Presiding
RELATOR '_S .SUPPLEMENT TO
ORIGINAL PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE JUDGES OF SAID COURT:
Juan Enriquez. Relator, files his Relator's Supplement
to Original Petition for Writ of Mandamus, showing as follows:
I .
Relator's Petition for Writ of Mandamus was filed on
October 14, 2014. However, the Clerk informed Relator that the
petition for mandamus fails to comply with the requirements of
Texas R. App. P. 52.3(k)(1)(C) and Tex. R. App. P. 52.7. Each
of these deficiencies is addressed separately:
Rule 52.3(k)CL)(C)
Rule 52.3(k)(l)(C) requires inclusion "unless voluminous
or impracticable, the text of any rule, regulation ordinance,
... or other law (excluding case law) on which the argument
is based."
The basis of Relator's claim is the decision of the
United States Supreme Court in Furman v. Georgia. 408 U.S.
238 (1972), as interpreted by the Attorney General of Texas
in Attorney General Opinion No. M-1187 issued on August 1, 1972,
in response to inquiry by the Board of Pardons and Paroles of
Texas regarding the status of prisoners under sentence of death
when Furman was rendered. A sworn copy of Attorney General
Opinion No. M-1187 is provided with this. Supplement.
Relator also relies on Article 42.09, §8((b), o*f: the
Texas Code of Criminal Procedure, which provides that the
Texas Department of Criminal Justice shall not take a defendant
into custody under this article until the designated officer
receives the documents required by subsections (a) and (c) of
this section." A sworn copy of this article is provided with
this supplement.
Rule 52.7
Rule 52.7 requires Relator must file a certified or sworn
copy of every document that is material to the relator's claim
that was filed in any underlying proceeding and a properly
authenticated transcript of any relevant testimony from any
underlying proceeding ... or a statement that no testimony was
adduced in connection with the matter complained ...." Here,
the district clerk of Anderson County has not/replied to Relator's
requests to purchase the record of the underlying cause.
However, Relator attached to his Original Petition a sworn
copy of the petition for writ of habeas corpus which he
seeks heard and decided. Jhus, Relator has complied with
Rule 52.7(a)(1) and there is no need for Rule 52.7(a)(2) because
no testimony was adduced in connection with the matter complained
of in thus natter,
Respectfully submitted.
En riqi
r12 2
TDCJ-Michael
2664 FM 2054
Jeanessee Colony; JX 75886
Verificat ion
I. Juan Enriquez. declare under penalty of perjury,
that the foregoing statements in my Supplement to Original
Petition for Writ of Mandamus are true and correct. Executed
on December 20 2014.
Certificate of Service
I, Juan Enriquez, certify that a correc t kcopy of the
foregoinbg Supplement to Original Petition for frit of Mandamus
was served by placing same in the United States mail, postage
prepaid, on December 20, 2014 addressed to: Mr. Douglas E.
Lowe District Attorney Courthouse. 500 Nopth Church St..
Palestine. TX 75801 and Judge Deborah Oakes Evans, 87th District
Court, Courthouse Suite 30. 500 N. Church Street Palestine,
TX 75801.
Authentication
I; Juan Enriquez, declare under penalty of perjury
that the attached Attorney General Opinion No. M-1187
is a correct copy of the opinion provided to me by the
Office of the Attorney General of Texas. Executed on
December 20, 2014.
5 Attommt Gk»kkal
Off* T e x a s
.^•STOKXEY GKKRHAI.
August 1, 1972
Hon. Clyde Whiteside
Chairman
Board, of Pardons and Paroles .\ Opinion-No, M-1187
Room 501 John H0 Reagan Bldg,
Austin, Texas 78701 Res Effect of Furman v.
Georgia holding death
penalty unconstitutional",
Dear Sirss and related questions.
This is in response to your recent inquiry concerning appli
cation of the .recent JU. S0 Supreme Court 'decisions in Furman v.
Georgia (69-5003) , Jackson v, Georgia (69-5030) and Branch v.
Texas (69-5031) U,S0 ,40 L.W. 4923, to procedures before
the Texas Board.of Pardons and Paroles.•k We quote your entire
letter (less formal parts) :'
"The,Texas,Board of Pardons and Paroles respectfully
requests .,your .opinion concerning matters of commutation
of sentence, as' provided in Article 4, Section 11 of
the Texas Constitution and other Texas lawsD In view
of the recent United States Supreme court opinions
concerning the death penalty in William Henry Furman
vso State of Georgia, et„ al„, and being cases numbers
69-5003, 69-5030 and-f69-5031.
"It-is the established policy of the Texas Board of
Pardons and Paroles when .considering commutation of
sentences' from death to life imprisonment that the
sentencing trial court officials instigate application
for such commutation by written request to the Board
setting out its reason for seeking such commutation
and requesting the Board to, make such recommendation
to the Governor for his action. This Board does not .
solicit commutation application nor has it to my know
ledge ever initiated commutation without the request
of the trial officials or the convicted defendant.
This' is the established procedure followed by this and
prior Boards in such cases„ In view of'the ruling of
-5789-
Hon0yClyde Whiteside/ Page 2 (M-1187)
the Supreme Court in the Furman casef and other cases
numbered abovet we would like to have a legal opinion
upon the following questionss
"lo Did the ruling in Furman vsc Georgia, #69-5003,
69-5030, and 69-3031 et„ al„, declare the death
penalty unconstitutional,, per se?
"20 What is -the present posture of death penalties
assessed in Texas District Courts in the following
catagories s
(a) Awaiting motion, for new trial in Texas
District Courts^
(b) Awaiting appeal to Texas Court of Criminal
Appeals o
(c) Affirmed by the Texas Court of Criminal
Appeals and awaiting certiorari to the
Supreme Court of the United States„
(d) Penalties provided declared'unconstitu
tional by the Supreme Court of the United
States c
(e) Habeas Corpus proceedings pending under
Article llo07 Texas Code of Criminal Pro
cedure o "
(f) "Habeas Corpus pending in various federal
courtst
"3o In view of the Board's policy outlined above, may this
Board now act with regard to the above"catagories of
cases to recommend commutation to the Governor?
"40 In the event of commutation of the death penalty to life
imprisonment, does this Board have any responsibility
for causing the individual to be re-sentenced?,' .-
"5c What effect upon the action of this Board will result
when a condemned person informs the' Board in writing
that he does not wish to receive commutation from death
to life?"
The decision of the U3 S-. Supreme Court in the three cited
cases (combined) is a short per curiam decision which, with
formal parts omitted, holdss
-5790-
X.
Hon, Clyde Whiteside* Page 3 (M-1187)
"Certiorari was granted limited to the following
question? 'Does the imposition and carrying out
of the death penalty in [these cases] constitute
cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments?' 403 U.S„ 952
(1971)o The Court holds that the imposition and
carrying out of the death penalty in these ,
cases constitutes cruel and unusuaT"~punishment
in violation of the Eighth and Fourteenth Amend
ments.* The judgment in each case is therefore
reversed insofar as it leaves undisturbed the
death sentence imposed, and the.cases are
remanded for further proceedings 0" (Emphasis
added)0
Then there follow nine opinions (five separate concurrences and
four joint and separate dissents)s
We must point out the fact that at the time of the issu
ance of this opinion the mandate of the-United States Supreme
.Court has not been issued and petitions, for rehearing have been
filed in all three of the cases (as well as all "other Texas
death penalty cases acted upon by that Court) «, We do not pre
dict what the action of the Court upon these motions will be.
We can only provide you with our current understanding of these
.decisions,, The following discussion must be accepted in this
lighto
After careful study of the order and the nine opinions, we
conclude that the death penalty, per se, has not been declared
constitutionally impermissible„ The entire thrust of the com
bined cases is to declare Texas (and other) procedures are
violative of "procedural due process" only as to the imposition
of death as a punishment for crime in the manner and under the
circumstances submitted„
In our opinion, these decisions make all current Texas death
sentences subject to successful ..attack ,in proper proceedings in
appropriate courts and prohibits the assessment of death in
current cases under present Texas statutes„
Ho
You have advised this office that your inquiry with^ regard,
to "posture" includes not only presently but also with regard '•.'
to posture in the event the death penalty should be commuted
to life imprisonmento
-5791-
1 »
"^
Hon„ Clyde Whiteside, Page 4 (M-1187)
In Attorney General's Opinion M«=981 (1971) „ this office ad
vised that your board "generally can recommend and the Governor,
based on such recommendation,, can commute a death sentence to life
imprisonment even though the conviction is on appeal and has not
been finally determined by the Texas Courts0 The Board and
Governor may do the same even though the United States Supreme
Court may reverse a judgment insofar as it imposes the death
penalty and remands the case to the Texas Court for further pro
ceedings in conformity with its judgment^ so long as the Texas
Court has taken no final action in the caseo"
We further advised you that your board "can recommend to the
Governor that a death sentence be;.commuted to life imprisonment,
and the Governore pursuant to such recommendation, can commute the
sentence without consent of the convictc Neither do we find in
our laws any requirement that the Board of Pardons and Paroles
conduct a hearing before it recommends commutation nor before
commutation is given a"
This conclusion is supported by the recent decision of the
Court of Criminal Appeals in the case of Whan vc Texas, S0W„
2d _^ (not yet reported but being Cause Noc 41,789 on th"e""docket
of that court) delivered June 28, 19 720 That opinion holds that
the Governor may commute a'death sentence to life even after the
U0 Sc Supreme Court has declared the death penalty invalid or at
any time after a verdict of guilty has been returned and the jury
has fixed the penalty ibut of course before a new trial has been
granted by a court of competent authority)c The opinion also
noted that commutation does not affect the judgment but merely
mitigates the punishment0
With such introductory statements, we will now analyze the
categories submitted,,
(a)
Where a death penalty conviction is pending motion for new
trial in the District Court-,, the penalty may be commuted and the
motion for new trial will be heard and disposed of on the merits
asserted as if life imprisonment had been the original penalty
imposedo
(b)
Where appellate review is pending in the Court of Criminal
Appeals9 the penalty may be commuted and the appeal may proceeds
•5792-
HonD Clyde Whiteside, Page 5 (M-1187)
We express no opinion on whether or not the Court of Criminal
Appeals might return the cause to the District Court for further
proceedings (such as sentencing, supplementary briefs, etc) or
treat death penalty questions as surplusage, etc, as that Court
has not yet had an opportunity^ to act to provide guidelines in
such matters and the Code of Criminal Procedure appears not to
contemplate such a possibility,,
(c)
Where certiorari is pending, the penalty may be commuted,
thereby rendering death penalty questions moot (although other
issues would remain unchanged)0
(d)
Where the U„ Sc Supreme Court has granted death penalty re
lief and remanded the cause to the Court of Criminal Appeals
(but where the Court of Criminal Appeals has not yet acted to
grant a new trial), the penalty may be commuted and the Court
of Criminal.Appeals will reaffirm its judgment (this is the
precise posture found in Whan v„ State, supra)„
(e)
Where habeas corpus p: roceedings are pending in Texas courts
under Article 11007, Texas Code of Criminal Procedure, coramuta-
tion may be granted, thereby rendering moot any death penalty
questionso
(f)
Where Federal habeas corpus proceedings are pending, commu
tation may be granted and it would then be incumbent upon counsel
for the State to call this to the attention of the Federal Court
for its consideration upon the issue of mootness0
It is our opinion that in all of the above categories, ab
sent commutation, the court concerned must either grant a new
trial (or in habeas corpus, order the release of the prisoner
if a new trial is not granted)„
IIIo
In view of the decision in Whan v„ State, supra, it is our
-W&-'
1&
•5793- -•*
Hona Clyde Whiteside^ Page 6 (M-1187)
opinion that the Board of Pardons and Paroles may now act with
regard to recommending commutations in all cases in all cate
gories o And since we find no prohibition to prevent the Board
from acting sua sponteg we certainly find no prohibition against
the Board requiring some initiative from either the State or the
condemned person before consideration will be given to a recom
mendation o It is obviously within the inherent rule making power
of the Board to establish orderly procedures for the disposition
of matters within its jurisdiction„
IV o
We find no statutory burden upon the Board to concern
itself with the sentencing or resentencing of persons com
muted o This would be a matter entirely for the judiciary.
Vo
In regard to the effect of notice from the condemned man
that he opposes commutation, we quote again (as in A0 G„ Opinion
#M-981) from the Court of Criminal Appeals decision in Ex Parte
LeFors, 303 S„W02d 394 (Tex=Crim0 1957) at p„ 397:
"Commutation of sentence means the change of
the punishment assessed to a less severe one„ It
differs from a pardon in that it may be imposed
without consent of the convict or against his will,,11
(Emphasis added0)
Since the people of Texas have an interest in conserving judicial
time and the immense cost of retrials, counsel for the State
may properly petition for commutation to avoid such wasteful
duplicityo It is our opinion that such a request from a con
demned man.should be considered by the Board along with all other
factors but.such request in, no way prevents the Board from exer
cising its lawful discretion in making or withholding a recom
mendation to the Governoro
y
This question was disposed in Biddle vc Perovich, 274 U0S0 >:>'
480 (U0SoSoCt0, 1927), wherein Mrc Justice Holmes stated for '
a unanimous courts
"Both sides agree that the act of the
President was properly styled a commutation
of sentence, but the counsel; of'; Page 8 (M--1187)
recommend commutation upon application from officials of
the convicting court.
40 The Board has no obligation to go forward in
causing convicting courts to re-sentence (under nunc
pro tunc) those commuted. ——
50 The Board may recommend (and the Governor may
grant) commutation over a protest from the condemned
person.
Respectfully submitted,
C. MARTIN
General of Texas
Prepared by Howard M„ Fender
Assistant Attorney General
APPROVED s
OPINION COMMITTEE
Kerns Taylor, Chairman
W„ E0 Allen, Co-Chairman
Max P0 Flusche
Lang A. Baker
Robert La Lattimore
Gordon Cass
SAMUEL D0 McDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-5796-
Authentic at ion
I, Juan Enriquez. declare under penalty of perjury
that the attached Article 42.09 o;f: the Code of Criminal
Procedure is a correct copy of said Article 42.09. Executed
on December 20, 2014.
Art. 42.09. COMMENCEMENT OF SENTENCE; STATUS DURING APPEAL; PEN
PACKET.
Sec. 1. Except as provided in Sections 2 and 3, a defendant shall be delivered to
a jail or to the Texas Department of Criminal Justice when his sentence is pronounced,
or his sentence to death is announced, by the court. The defendant's sentence begins to
run on the day it is pronounced, but with all credits, if any, allowed by Article 42.03.
Sec. 2. If a defendant appeals his conviction and is released on bail pending
disposition of his appeal, when his conviction is affirmed, the clerk of the trial court, on
receipt of the mandate from the appellate court, shall issue a commitment against the
defendant. The officerexecuting the commitment shall endorse thereon the date he takes
the defendant into custody and the defendant's sentence begins to run from the date
endorsed on the commitment. The Texas Department of Criminal Justice shall admit the
defendant named in the commitment on the basis of the commitment.
Sec. 3. If a defendant is convicted of a felony and sentenced to death, life, or a
term of more than ten years in the Texas Department of Criminal Justice and he gives
notice of appeal, he shall be transferred to the department on a commitment pending a
mandate from the court of appeals or the Court of Criminal Appeals.
Sec. 4. If a defendant is convicted of a felony, is eligible for release on bail
pending appeal under Article 44.04(b), and gives notice of appeal, he shall be transferred
to the Texas Department of Criminal Justice on a commitment pending a mandate from
the Court of Appeals or the Court of Criminal Appeals upon request in open court or upon
written request to the sentencing court. Upon a valid transfer to the department under
this section, the defendant may not thereafter be released on bail pending his appeal.
Sec. 5. If a defendant is transferred to the Texas Department of Criminal Justice
pending appeal under Section 3 or 4, his sentence shall be computed as if no appeal had
been taken if the appeal is affirmed.
Sec. 6. All defendants who have been transferred to the Texas Department of
Criminal Justice pending the appeal of their convictions under this article shall be under
the control and authority of the department for all purposes as if no appeal were pending.
Sec. 7. If a defendant is sentenced to a term of imprisonment in the Texas
Department of Criminal Justice but is not transferred to the department under Section 3
or 4, the court, before the date on which it would lose jurisdiction under Section 6(a),
Art. 42.09. COMMENCEMENT OF SENTENCE; STATUS DURING APPEAL; PEN
PACKET.
Sec. 1. Except as provided in Sections 2 and 3, a defendant shall be delivered to
a jail or to the Texas Department of Criminal Justice when his sentence is pronounced,
or his sentence to death is announced, by the court. The defendant's sentence begins to
run on the day it is pronounced, but with all credits, if any, allowed by Article 42.03.
Sec. 2. If a defendant appeals his conviction and is released on bail pending
disposition of his appeal, when his conviction is affirmed, the clerk of the trial court, on
receipt of the mandate from the appellate court, shall issue a commitment against the
defendant. The officerexecuting the commitment shall endorse thereon the date he takes
the defendant into custody and the defendant's sentence begins to run from the date
endorsed on the commitment. The Texas Department of Criminal Justice shall admit the
defendant named in the commitment on the basis of the commitment.
Sec. 3. If a defendant is convicted of a felony and sentenced to death, life, or a
term of more than ten years in the Texas Department of Criminal Justice and he gives
notice of appeal, he shall be transferred to the department on a commitment pending a
mandate from the court of appeals or the Court of Criminal Appeals.
Sec. 4. If a defendant is convicted of a felony, is eligible for release on bail
pending appeal under Article 44.04(b), and gives notice of appeal, he shall be transferred
to the Texas Department of Criminal Justice on a commitment pending a mandate from
the Court of Appeals orthe Court of Criminal Appeals upon request in open court or upon
written request to the sentencing court. Upon a valid transfer to the department under
this section, the defendant may not thereafter be released on bail pending his appeal.
Sec. 5. If a defendant is transferred to the Texas Department of Criminal Justice
pending appeal under Section 3 or 4, his sentence shall be computed as if no appeal had
been taken if the appeal is affirmed.
Sec. 6. All defendants who have been transferred to the Texas Department of
Criminal Justice pending the appeal of their convictions under this article shall be under
the control and authority of the department for all purposes as if no appeal were pending.
Sec. 7. If a defendant is sentenced to a term of imprisonment in the Texas
Department of Criminal Justice but is not transferred to the department under Section 3
or 4, the court, before the date on which it would lose jurisdiction under Section 6(a),
Acts 2005, 79th Leg., Ch. 728, Sec. 4.005, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1308, Sec. 4, eff. June 15, 2007.
Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.023, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.024, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 980, Sec. 1, eff. September 1, 2009.
d.
Acts 2005, 79th Leg., Ch. 728, Sec. 4.005, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1308, Sec. 4, eff. June 15, 2007.
Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.023, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 25.024, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 980, Sec. 1, eff. September 1, 2009.
4