ACCEPTED
02-15-0001-CV
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
1/9/2015 2:59:16 PM
DEBRA SPISAK
CLERK
IN THE COURT OF APPEALS
FOR THE SECOND DISTRICT OF TEXAS FILED IN
2nd COURT OF APPEALS
FORT WORTH, TEXAS
1/9/2015 2:59:16 PM
IN RE § DEBRA SPISAK
JULIS EDWARD PERALES § NO. 02-15-00001-CVClerk
§
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, the Real Party in Interest, the State of
Texas, by and through the Hon. Sharen Wilson, the Criminal
District Attorney of Tarrant County, Texas, and hereby
responds to the relator’s application for writ of mandamus.
IDENTITY OF PARTIES AND COUNSEL
The relator in the present cause is Julis Edward
Perales, who has filed an application for writ of habeas
corpus challenging his conviction for capital murder in the
underlying cause, styled Ex parte Julis Edward Perales,
cause number C-396-009930-1005465-A. The respondent is
the 396th Judicial District Court of Tarrant County, Texas
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(herein after “the trial court”). The real party in
interest is Sharen Wilson, the elected criminal district
attorney of Tarrant County, Texas (herein after “State”).
The relator is proceeding pro se on this petition for
writ of mandamus and on his underlying application for writ
of habeas corpus. The real party in interest is
represented by Steven W. Conder, 401 W. Belknap, Fort Worth,
Texas 76196-0201.
TABLE OF CONTENTS
Identity of Parties and Counsel ....................... 1
Index of Authorities .................................. 3
Statement of the Case ................................. 4
State’s Response to Issue Presented ................... 5
Argument .............................................. 6
A. Jurisdiction ................................... 6
B. Relator Not Entitled to Mandamus Relief ........ 7
1. No Clear Abuse of Discretion .............. 8
2. Other Adequate Legal Remedies ............. 9
Conclusion ........................................... 10
2
Prayer ............................................... 10
Certificate of Service ............................... 11
Certificate of Compliance ............................ 11
Appendix A ............................. Writ Application
Appendix B ............ State’s Proposed Findings of Fact
INDEX OF AUTHORITIES
Cases
Ashorn v. State,
77 S.W.3d 405........................................ 6
Canadian Helicopters Ltd. v. Wittig,
876 S.W.2d 304 (Tex. 1994)........................ 7, 8
Ex parte Harleston,
431 S.W.3d 67 (Tex. Crim. App. 2014)................. 8
In re McAfee,
53 S.W.3d 715 (Tex. App. –
Houston [1st Dist.] 2001)......................... 7, 9
In re McCoin,
2004 WL 612815 (Tex. App. – Texarkana 2004).......... 9
In re Menniefee,
2014 WL 5474798 (Tex. App. – Dallas 2014)............ 7
Perales v. State,
2008 WL 4531659 (Tex. App. – Fort Worth 2008, pet.... 4
3
Tilton v. Marshall,
925 S.W.2d 672 (Tex. 1996)........................... 8
Statutes
Tex. Code Crim. Proc. art. 11.05 ...................... 6
Tex. Code Crim. Proc. art. 11.07 §3(d) ................ 9
Tex. Govt. Code §22.221(d) ............................ 6
Rules
Tex. R. App. P. 9.4(e) ............................... 11
Tex. R. App. P. 9.4(i) ............................... 11
Tex. R. App. P. 9.4(i)(1) ............................ 11
STATEMENT OF THE CASE
The relator was convicted by a jury of the offense of
capital murder on July 19, 2007, and was sentenced to life
confinement. See Judgment, cause number 1005465D. This
Court affirmed his conviction on October 9, 2008. See
Perales v. State, 2008 WL 4531659 (Tex. App. – Fort Worth
2008, pet. dismissed).
On June 18, 2013, the relator filed an application for
writ of habeas corpus with the trial court raising ten
4
grounds for relief. See Ex parte Perales, No. C-396-
009930-10005465-A (application). His application remains
pending with the trial court. 1
On January 5, 2015, the relator filed this petition for
writ of mandamus requesting the Court order the trial court
to rule on his motion for an evidentiary hearing. See
Original Application for Writ of Mandamus - cause number
02-15-00001-CV. The Court has ordered the State to respond
to the relator’s petition by January 20, 2015.
STATE’S RESPONSE TO ISSUE PRESENTED
This Court lacks jurisdiction to consider the
relator’s application for writ of mandamus because it
concerns the issues raised in his article 11.07 application
for writ of habeas corpus. Alternatively, the relator is
not entitled to mandamus relief because the trial court’s
1 On July 23, 2014, the State filed proposed findings of fact and
conclusions of law in which it agreed that the relator is
entitled to a new sentencing hearing because he received a life
without parole sentence for a crime that he committed when he
was seventeen years old. See Ex parte Perales, C-396-
009930-10005465-A (proposed findings of fact and conclusions
of law).
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inaction is not a clear abuse of discretion and he has other
legal remedies.
ARGUMENT
A. Jurisdiction
An intermediate court of appeals has no jurisdiction
relating to applications for habeas corpus relief in
connection with criminal proceedings. See Ashorn v.
State, 77 S.W.3d 405, 409 (Tex. App. - Houston [1st Dist.]
2002, pet. refused). The Texas Government Code limits the
habeas corpus jurisdiction of intermediate courts of
appeals to civil matters. See Tex. Govt. Code §22.221(d).
By contrast, the Texas Code of Criminal Procedure places
habeas corpus jurisdiction over criminal matters with the
Court of Criminal Appeals, the district courts and the
county courts. See Tex. Code Crim. Proc. art. 11.05.
Article 11.07, which provides the exclusive procedure
for habeas corpus relief from a non-death penalty felony
judgment, contains no role for the intermediate courts of
appeals; the only courts referred to are the convicting
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court and the Court of Criminal Appeals. See In re McAfee,
53 S.W.3d 715, 718 (Tex. App. – Houston [1st Dist.] 2001);
In re Menniefee, 2014 WL 5474798 (Tex. App. – Dallas 2014)
(not designated for publication). Accordingly, the
intermediate courts of appeals have no mandamus
jurisdiction in matters related to pending petitions for
writ of habeas corpus. See In re McAfee, 53 S.W.3d at 718;
In re Menniefee, page 1. 2
B. Relator Not Entitled to Mandamus Relief
Mandamus is an extraordinary remedy, available only in
limited circumstances. Canadian Helicopters Ltd. v.
Wittig, 876 S.W.2d 304, 305 (Tex. 1994). A relator seeking
mandamus relief must show (1) that a respondent either
failed to perform a clear legal duty or committed a clear
abuse of discretion; (2) that the relator’s legal remedies
are inadequate; and (3) that the petition raises important
2 In fact, In re Menniefee deals with this exact same
situation of a trial court’s inaction on a motion for an
evidentiary hearing in an article 11.07 habeas corpus
proceeding. See In re Menniefee, page 1.
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issues for the state’s jurisprudence. Tilton v. Marshall,
925 S.W.2d 672, 682 (Tex. 1996). Such a limitation is
necessary to preserve “orderly trial proceedings” and to
prevent the “constant interruptions of the trial process
by appellate courts”. Canadian Helicopters Ltd. v.
Wittig, 876 S.W.2d at 305. Consistent with this narrow
approach to mandamus, a heavy burden of showing an abuse
of discretion as well as the inadequacy of a remedy by appeal
is placed on the relator. Id.
1. No Clear Abuse of Discretion
The trial court’s conduct in not considering the merits
of the relator’s request for an evidentiary hearing is not
a clear abuse of discretion.
Article 11.07 permits a trial court to conduct a live
hearing, as well as consider affidavits, depositions,
interrogatories, and the judge's own personal recollection
if the habeas judge was also the trial judge. See Ex parte
Harleston, 431 S.W.3d 67, 70 (Tex. Crim. App. 2014); Tex.
Code Crim. Proc. art. 11.07 §3(d). Nothing in article
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11.07 requires a trial court to conduct a live hearing in
order to resolve an article 11.07 application for writ of
habeas corpus. See Tex. Code Crim. Proc. art. 11.07
§3(d). See also In re McCoin, 2004 WL 612815 (Tex. App.
– Texarkana 2004) (not designated for publication) (article
11.07 writ applicant not entitled to a live evidentiary
hearing).
Thus, the trial court had no obligation to rule on the
relator’s motion and, likewise, did not clearly abuse its
discretion by not ruling on the relator’s motion.
2. Other Adequate Legal Remedies
The relator has other adequate legal remedies for
challenging the trial court’s inaction on his motion for
an evidentiary hearing. Specifically, he may seek
mandamus relief from the Court of Criminal Appeals to
complain about an action or inaction of the convicting
court. See In re McAfee, 53 S.W.3d at 718.
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CONCLUSION
This Court lacks mandamus jurisdiction in matters
related to pending article 11.07 applications for writ of
habeas corpus. The relator is not entitled to mandamus
relief because the trial court did not clearly abuse its
discretion, and he has other legal remedies.
WHEREFORE, PREMISES CONSIDERED, the State prays the
Court deny the relator’s petition for writ of mandamus.
Respectfully submitted,
SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas
DEBRA WINDSOR
Chief, Post-Conviction
/s/ Steven W. Conder
STEVEN W. CONDER, Assistant
Criminal District Attorney
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
FAX (817) 884-1672
State Bar No. 24073106
COAAppellatealerts@tarrantcou
ntytx.gov
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CERTIFICATE OF SERVICE
A true copy of this mandamus response will be mailed
to the realtor, Mr. Julis Edward Perales, TDCJ-ID
#01449158, Hughes Unit, Route 2, Box 4400, Gatesville,
Texas 76597, on this, the 9th of January, 2015. A true copy
of this mandamus response will be hand-delivered to the
respondent, the Hon. George W. Gallagher, Judge, 396th
Judicial District Court, 401 W. Belknap, Fort Worth, Texas
76196, on this, the 9th of January, 2015
/s/ Steven W. Conder
STEVEN W. CONDER
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements
of Tex. R. App. P. 9.4(e) because it has been prepared in
a conventional typeface no smaller than 14-point for text
and 12-point for footnotes. This document complies with
the word-count limitations of Tex. R. App. P. 9.4(i) because
it contains approximately 1067 words, excluding those parts
exempted by Tex. R. App. P. 9.4(i)(1), as computed by
11
Microsoft Office Word 2010 - the computer program used to
prepare the document.
/s/ Steven W. Conder
STEVEN W. CONDER
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A
B
in Re Julis Edward Perales
Combined Opinion