Miles, Hiram

Date : '£'~'1W '2.'1 1 'Z.o\S"
\

Court of Criminal Appeals of Texas
P.O. Box 12308, Capitol Station
Austin, Texas 78711

RE: Filing of Petition for Writ of Mandamus & Prohibition

Dear Clerk,

Enclosed, please find the Original and eleven (ll) copies
of the "Relator's Petition for vJrit of Mandamus & Prohibition."
Please file this document and bring it to the Court's
immediate attention for any proceedings to be had thereon.
By copy of this letter, I am forwarding a copy of this
instrument to the Fourth Court of Appeals arid Susan D. Reed,
the Bexar County Criminal District Attorney.

Thank you in advance for your time and kind assistance
in this very important matter.

Sincerely, ~

c:!X~~
JRECE~VED ~N
TDCJ-CID No. 785448
W-P- Clements Unit
9601 Spur 591 OOURT OF CRIMINAL APPEALS
Amarillo, Texas 79107-9606
MAR 04 2015
c/file
 No.

IN THE

TEXAS COURT OF CRIMINAL OF TEXAS

AT AUSTIN

HIRAM MILES,
Relator,

v.

COURT OF APPEALS FOR THE FOURTH DISTRICT
OF TEXAS,
Respondent.

RELATOR'S PETITION FOR WRIT OF MANDAMUS & PROHIBITION

Hiram Miles
TDCJ-CID No. 785448
William P. Clements Unit
9601 Spur 591
Amarillo, Texas 79107-9606

RELATOR, PRO SE
 No.

HIRAM MILES,
Relator,

v.

COURT OF APPEALS FOR THE FOURTH DISTRICT
OF TEXAS,
Respondent.

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of the parties, the

attorneys, and any other person who has an interest in the out-

come of this suit:

Susan D. Reed
Bexar County Criminal District Attorney
Cadena-Reeves Justice Center
300 Dolorosa, Fifth Floor
San Antonio,. Texas 78205-3030

Fourth Court of Appeals District
Cadena~Reeves Justice Center
300 Dolorosa, Suite 3200
San Antonio, Texas 78205-3037

i.
 TABLE OF .CONTENTS

Identity of Parties & Counsel i

·Table of Contents ii

Index of Authorities iii

Statement of the Case iv

Statement of Jurisdiction ••••••.•••••.•••••.•., •.••••..••.. v

Issue Presented vi

Statemen~_ of Facts 1

Summary of the Argument •••.•...•.•....•••...••.••..•••.•.. 3

Argument .•••••...••.•..•..•.••••••••....••..••.•.•••..•.•. 4

Issue One:
The Fourth Court of Appeals Judgment/Opinion Is Outside
Of The Anders/Stafford Procedure Established By The u.s.
Supreme Court and Court Of Criminal Appeals Of Texas,
Rendering It Void

Prayer .••••••..•.•••••••.••.•••••..•.•••.•••••••..••.•••.• 8

Unsworn Declaration ..••..••.•••.••••.••...•••..•••.•..•..• 9

Certificate of Service . . . . . • • • . • • . . . . . • • . . • • . • . . . • . . • • . • . . 9

Appendix •~• .. e.;.fi>.-•i>••~·••oo ..... ..,.,.,. ..... ., .... .,., ... ., . . . . . . . . . . ., ... ~••o;. .. ~••., 10

ii.
 INDEX OF AUTHORITIES

Federal·Cases:

Anders v. California,386 U.S.738,87 S.Ct.l396,18 L.Ed.
493 (1967) • . . . • . . . • • . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . • . . 5,6,8

Fay v. Noia,372 u.s.391,83 s.ct.822,9 L.Ed.2d 837 (1963) .•. 7

States Cases:

Chester,In Re, 309 S.W.3d @ 718(Tex.App.-Houston[l4th Dist~]
2010) ...•....•.. - .•.•. - ....•..• - ... - .. •· • . . . . . . • . . . . . - . . . . . . 8
Choice ! Energy,L.P.,325 S.W.3d 810(Tex.App.-Houston[l4th
Dist.] 2010)....... .. . . . . . . . . . • • . . . . . . • . . . . . . . . . . . . . . . . . • . . . . 8
Rodriguez v. Marquez,-4 S.W.3d 227(Tex.Crim.App.l999) . . . . . . 4
Stafford v. State, 813 S.W.2d 5ll(Tex.Crim.App.l991) . . . . . . . 5,6,8
Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420,
424 (Tex.Crim.App.l981)..... .. • . . . . . . . . . . . . . • . . ... . . . . . • • . . • . 4
Wade v. Mays, 689 S.W.2d 893,899 (Tex.Crim.App.l985) ..•.• :. 4

Statutes:

Article 11.07, Section 4, Texas Code of Criminal Procedure .. 7

iii
 STATEMENT OF THE CASE

Relator was indicted on January 4,1996, for the offense

of murder alleged to have been committed on or about October

10,1995. (C.R- Vol.r,p.7)

Jury trial commenced on March 31,1997 (c.R. Vol.I,p-8),

after a plea of not guilty, a verdict of guilty was returned

on April 3,1997 and the jury assessed punishment on that same

day at life imprisonment and a $10,000 fine. (C.R. Vol.II,

p.l76)

A motion for a new trial was filed and overruled on April

21,1997. (C.R. Vol.II,p.l84)

Relator timely filed a notice of appeal on April 17,1997.

(C.R. Vol.II,p.l93)

After Anders proceeding the Fourth Court of Appeals in

Appeal No. 04-97-00313-CR was initiated,the Court Affirmed the

trial court's judgment on March 3,1999.

iv
 STATEMENT OF JURISDICTION

This Cdurt has jurisdiction to issue a writ of mandamus

and prohibition. Article 4.04, Texas Code of Criminal Procedure

and Article 5, Section 5, Texas Constitution.

v -
 ISSUE PRESENTED

Issue One: The Fourth Court Of Appeals Judgment/Opinion
Is Outside Of The Anders/Stafford Procedure
Established By The u.s. Supreme Court And Court
Of Criminal Appeals Of Texas, Rendering It Void.

vi.
 STATEMENT OF FACTS

On May 18,1998, court-appointed appellate counsel, Raymond

Fuchs, filed a "Anders Brief In Support Of Motion To Withdraw

As Counsel" with the Fourth Court of Appeals in Appeal No. 04-

97-00313-CR.

Mr. Fuchs provided Relat:_o_E: ___ ~i:_t_h__ ~__c~p_}:' ___ 9X._the Anders Brief

and advised him of his right to review the record and file a

Pro Se Brief.

Mr. Fuchs, also, sent the 290th District Court's address

to contact for the trial record to be sent to him; notifying

him also of the time limitations to file the brief suggesting

that Relator request for an extension of time, giving him the

Fourth Court of Appeals address. see Appendix Tab-A, Attachment-

1: Order of the Fourth Court of Appeals, dated July 20,1998:

[Affidavit of Hiram Miles]

On May 26,1998, Relator, as instructed wrote the trial

court judge Sharon s. MacRae requesting for the record.

On Julyl,l998, in response to the letter, Judge MacRae

stated "I have no proprietary interest in the records that you

request, contact the Court of appeals."

On July 5,1998, Relator wrote the Fourth Court of Appeals

asking for his records by motion, to file his brief.

On July 20,1998, the Fourth Court of Appeals ackowledged

in a Order that Relator asserted his right to file a pro se

brief.

This Order directed the Bexar County District Clerk to

prepare and send a full and complete duplicate copy of the

1
Clerk's and Reporter's Records for Ca~se Number 1996-CR-0010

to Relator. See (Appemdix, Tab-A,[Affidavit of Hiram Miles]

Attachment-1)

In.this Order, it stated that "the ProSe Brief is due

on or before the 18th day of September 1998." Id.

On September 18, 1998, Fourth Court of Appeals Clerk,

Mr. Herb Schaefer, acknowledged receipt and filing of the "Pro

Se Appellant Brief" for the Fourth Court of Appeals- See

(Appe~dix, Tab-A,[Affidavit of Hiram Miles] Attachment-2)

Relator provided Mr. Fuch with a copy and also forwarded

a copy to Enrico B. Valdez, the attorney representing the State.

See (Appendix, Tab-A)

The State's attorney filed three (3) motions for extensions

of time and filed its reply brief on January 19,1999.

On February 4,1999, Relator was notified by Clerk Schaef~r

that the Court set a formal submission on "Briefs'' on the 2nd

day of March, A.D. 1999.

On March 3,1999, Justice Karen Angelini delivered the

Opinion for the Court affirming Relator's conviction by review

of the brief filed by Mr. Fuchs and the record, agreeing that

the appeal was frivolous and without merit granting counsel's

motion to withdraw. See (Appendix, Tab-A,[Affidavit of Hiram

Miles], Attachment-3: Opinion, Fourth Court of Appeals)

Justice Angelini in her Opinion further noted that "Miles

has not filed a brief." Id.

Relator's "Pro Se Appellant Brief" has not been reviewed

nor. considered as mandated by the u.s. Supreme Court's holding

on the Anders procedure.
2
 SUMMARY OF THE ARGUMENT

Court-appointed appellate counsel filed an Anders' Brief

In Support of Motion to Withdraw as Counsel, triggering the

Anders'/Stafford three (3) step mandate by the u.s. Supreme

Court and Texas Court of Criminal Appeals. Intermediate State

Appellate Courts must follow this procedure to the conclusion

of its appellate review.

In this case at bar, where the Fourth Court of Appeals

abandined review of "Appellant's Pro Se Brief" required by

Anders/Stafford judgments, it went beyond its jurisdiction to

enter any judgment, thereby rendering the Order of affirmation

of the conviction and sentence void.

Relator pursues Writ of Mandamus in order for this

Honorable Court shall have the power to issue the writ and

enforce its judgment as decided in Stafford v. State which was

determined in accord with Anders v. California-

3
 ARGUMENT

The Fourth Court Of Appeals Judgment/Opinion Is Outside
Of The Anders/Stafford Procedure Established By The u.s. Supreme
Court And Court Of Criminal Appeals Of Texas, .Rendering It Void.

Standard of Review

To obtain mandamus relief with respect to judicial conduct,
a Relator must show:

1) a clear right to relief usually when the judicial con-
duct in question violates a ministerial duty, and

2) no adequate remedy at law to redress the alleged harm.

See State ex. rel. Rodlrigueziv,~ ~Marquez1·A S.W.3d 227 (Tex.Crim.
App. 1999)

* * *

The Wade Court determined that "under the ministerial

act/clear legal right requirement, the law must "Clearly spell

[] out the duty to be performed ••• with cuch certainty that

nothing is left to the exercise of discretion or judgment." See

Wade v. Mays, 689 S.W.2d at 899 (Tex.Crim.App.l985)(Quoting

Texas Department of Corrections v. Dalehite, 623 S.W.2d 420,424

(Tex.Crim.App.l981))

The governing law in this case is spelled out in steps

by the u.s. Supreme Court and Texas Court of Criminal Appeals

ln a way that cannot be interpreted in no other way.

Therefore, Relator will demonstrate that the judicial

conduct of the Justices of the Fourth Court of Appeals violates

a ministerial duty to review the "ProSe Appellant's Crief."

4
"I

This Honorable Court of Criminal Appeals of Texas in

Stafford v. State, 813 S.W.2d 511 (Tex.Crim.App.l99l) adopted

the u.s. Supreme Court's three (3) step procedure to determine

if an indigent's appeal is wholly frivolous. See Anders v. C~li-

fornia, 386 u.s. 738, 87 s.ct. 1396, 18 L.Ed-493 (1967)

Counsel's Role -Appointed counsel must make a conscientious
review of the record to decide if it presents any nonfri-
volous grounds for appeal. If this review convinces appointed
counsel the appeal is wholly frivolous, he must ask the
court for permission to withdraw. But he must file "a
brief referring to anything in the record that might
arguably support the appeal" and provide the appellant
with a copy of th is brief. Anders, 386 u.s. at 744
Appointed counsel thus has the responsibility to file
an Anders brief that will help the court correctly dispose
of the appellant's appeal.

Appellant's Role - If appointed counsel files a motion
to withdraw and a brief complying with Anders/Stafford,
the court must provide the appellant with time to file
a prose brief "to raise any'pointes he chooses .... " Id.
This pro se brief is thus the appellant's opportunity
to help the court decide if the record on appeal raises
any nonfrivolous ground for an appeal.

The Court's Role -After the appellant has been given
an opportunity to file a pro se brief, the court must
conduct a "full examination of all of the proceedings,to
determine whether the case is wholly frivolous." To make
this determination, the court reviews the Anders brief
filed by appointed counsel, the record on appeal,and any
pro se brief filed by the appellant. If the court establishes
the appeal is wholly frivolous, it affirms the judgment.
But, if the review reveals an arguable ground for appeal,
the court must appoint another attorney to assist the

5
 appellant in arguing the appeal. Id.

The above procedures are a ministerial duty mandated by

the Court of Criminal Appeals and is not left to discretion

by any lower court, See Anders v. California, 87 S.Ct-1396(1967);

Stafford,supra.

Appointed counsel's filing of an Anders Brief and motion

to withdraw triggered the Anders/Stafford procedure mandated by

the u.s. Supreme Court and Court of Criminal Appeals of Texas.
Relator did not agree with appointed counsel's finding

that the appeal was frivolous and asserted his right und~r:

Anders/Stafford.

Relator fulfilled his role as required pursuant to the

Anders/Stafford procedure by filing his "Pro Se Appellant's

Brief" on September 18,1998. See (Appendix, Tab-A, [Affidavit

Of Hiram Miles] Attachment - 2: Notice of Receipt By Clerk,dated

September 18,1999)

The Fourth Court of Appeals did not fulfill its role

prior to rendering judgment by stating in its Opinion "Miles

has not filed a brief." See (Appendix, Tab-A [Affidavit of Hiram

Miles] Attachment - 3: Opinion/Judgment of the Fourth Court

of Appeals,dated March 3,1999)

The Court ignored its ministerial duty to review the pro

se brief by simply stating that "Miles has not filed a brief"

when court records and notice of receipt from the court's

clerk certifying otherwise.

Therefore, Relator is entitled to the review governed

by the Anders/S~af~ord procedure.

6
 The aforementioned steps must be followed ln reaching

the decision to affirm or appoint new counsel to argue the

appeal. The review of any pro se brief filed by the Relator

is required in this determination. Therefore, without the review

of this brief on file with the Fourth Court of Appeals, it does

not have jurisdiction to enter judgment of affirmation, and

is void.

NO ADEQUATE REMDEY AT LAW

Relator will demonstrate that he has no adequate remedy

at law to redress the Fourth Court of Appeals failure to review

the pro se brief as required by Anders/Stafford.

The only remedy from judgment/order by a court of appeals

on direct appeal is the Application for a Writ of Habeas Corpus

pursuant to Article 11.07, Texas Code of Criminal Procedure.

Your Relator does not meet the requirements in pursuing

the state application due to his previous filings of State

applications, whereby, Section 4, Article 11.07 does not redress

the hram done to Relator by the Fourth Court of Appeals. See

(Appendix, Tab-A, [Affidavit of Hiram Miles] Attachment - 4:

Order of the Texas Court of Criminal Appeals,dated: March 12,

2014)

In addition, the Fourth Court of Appeals judgment is

obtained in violation of the Anders/Stafford procedure [DUE

Process] and void for want of jurisiction of the court to render

such judgment. See Fay v. Noia, 372 u.s. 391, 83 s.ct. 822,

9 L.Ed.2d 837 (1963), and requires no need for Relator to

7
demonstrate the No Adequate Remedy at Law standard.

Albeit, lower court's have determined that the "No Adequate

Remedy at Law" is not necessary when the order being challenged

is void. See In Re Chester, 309 s.w.3d @ 718 (Tex.App.-Houston

[14th Dist.] 2010); See also In Re Choice! Energy,L.P., 325

S.W.3d 810 (Tex.App.-Houston (14th Dist.] 2010)

In conclusion, Relator has attempted every avenue to obtain

relief from the Fourth Court of Appeals arbitrary act to ignore

the brief timely filed by Relator on September 18,1998. See

(Appendix, Tab-A [Affidavit of Hiram Miles] Attachment - 2)

Relator contends that the Fourth Court of Appeals refusal

to review the brief is due to the grounds raised in the brief

being meritorious requiring abatement of the appeal, and remand

to the trial court for appointment of new counsel to assist

him in arguing those grounds.

PRAYER

WHEREFORE,PREMISES CONSIDERED, Relator prays that this

Honorable Court issues this Writ of Mandamus and Prohibition

directing the Fourth Court of Appeals to review the "Pro Se

Appellant's Brief" as required by Anders v. California, 87 s.ct.

1396 (1967) and Stafford v. State, 813 s.w.2d 511 (Tex.Crim.App.

1991) Also, issue Prohibition to the Fourth Court of Appeals

to prohibit any attempted decision without first revewing the

"ProSe Appellant's Brief."

EXECUTED on this the ~ day of }e1o~~~ 2015.

E'LATOR I PROSE

8
 UNSWORN DECLARATION

I, Hiram Miles TDCJ-CID No. 785448, being presently
confined on the TDCJ-CID William P. Clements Unit in Potter
County, Texas verify under penalty of perjury that the fore-
going is true and correct pursuant to V.T.C.A- Civil Practice
and Remedies Code 132.001 - 132.003.

EXECUTED on this the ~day of 'f~~R-"( 2015.

LATOR, PRO SE

CERTIFICATE OF SERVICE

r, Hiram Miles, Relator, pro se, do hereby certify that
a copy of the "Petition for a Writ of Mandamus & Prohibition"
has been served on the parties to this suit by placing same
in the u.s. Mail System through the prison mailing system, on
the 25:1h_ day of ~~W.""C.U.:y\ 2015, addressed to:

Susan D. Reed
Bexar County Criminal District Attorney
Cadena-Reeves Justice Center
300 Dolorosa, Fifth Floor
Sari Antonio, Texas 78205-3030

(RELATOR I PRO" SE

9
 WRIT NO. WR-46,247-12

HIRAM MILES,
Relator,

vs.

COURT OF APPEALS FOR FOURTH DISTRICT OF TEXAS,
Respondent.

APPENDIX TO RELATOR'S PETITION FOR WRIT OF MANDAMUS

AND PROHIBITION

List Of Documents

1. Affidavit Of Hiram Miles
Dated December 14,2014 Tab A

10