Valdez, Justin Todd

WR-82,807-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/2/2015 4:35:02 PM Accepted 2/3/2015 3:44:40 PM ABEL ACOSTA CLERK N0. ______________ RECEIVED COURT OF CRIMINAL APPEALS 2/3/2015 IN THE ABEL ACOSTA, CLERK TEXAS COURT OF CRIMINAL APPEALS IN RE JUSTIN TODD VALDEZ, PETITIONER FROM CALDWELL COUNTY COURT AT LAW CRIMINAL ACTION NO. 41070 HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING MOTION FOR LEAVE TO FILE ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS To the Honorable Court of Criminal Appeals: Now comes JUSTIN TODD VALDEZ, Petitioner, and pursuant to Rule 72.1, Texas Rules of Appellate Procedure, requests leave of this Honorable Court to file an Original Petition for Writ of Habeas Corpus and in support of same would show the following: 1. Petitioner was charged by information with the Class A Misdemeanor offense of assault. 2. On October 8, 2011, Petitioner appeared pro se and pled nolo contendere to the charged offense and was placed on community supervision. Page 1 of 5 3. On October 28, 2011, Petitioner appeared with retained counsel and the trial judge conducted a hearing on Petitioner’s motion for new trial. 4. On December 9, 2011, the trial judge denied the motion for new trial. 5. Petitioner gave timely notice of appeal. 6. On August 29, 2014, the Third Court of Appeals affirmed the trial court’s judgment. Valdez v. State, No. 03-12-00098-CR, 2014 WL 4362949 (Tex. App.—Austin Aug. 29, 2014) (mem. op., not designated for publication). 7. The Court of Criminal Appeals granted Petitioner until December 11, 2014, to file a petition for discretionary review (PDR). 8. Counsel for Petitioner miscalendared the date the PDR was due, erroneously believing it was due on or before January 24, 2015.1 9. When the actual due date passed, the Third Court of Appeals notified counsel for Petitioner of the issuance of its mandate of affirmance. 10. Due to counsel’s error, Petitioner has been denied his opportunity to file a PDR in this case. 1 On November 24, 2014, Petitioner requested 60 days to file the PDR. Page 2 of 5 11. Counsel has spoken to the Honorable Fred Weber, the Caldwell County District Attorney. Weber agrees that Petitioner is entitled to the opportunity to file a PDR. 12. Errors related to misdemeanors are normally corrected via Articles 11.072 or 11.08 of the Texas Code of Criminal Procedure. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). 13. However, those remedies are not available because a misdemeanor trial judge does not have the authority to order the Court of Criminal Appeals to permit the filing of an out-of-time PDR. 14. Consequently, the only remedy available is an Original Writ of Habeas Corpus. 15. Petitioner prays that this Honorable Court will grant days leave to file an Original Petition for Writ of Habeas Corpus, and allow Petitioner ten (10) in which to file same. Respectfully submitted, _________________________________ CHARLES F. BAIRD TBA # 00000045 BAIRD FARRELLY, PLLC 2312 Western Trails Blvd, Suite 102-A Austin, TX 78745-1677 Tel: 512.804-5911 Fax: 512.804-5919 Page 3 of 5 Email: jcfbaird@gmail.com CERTIFICATE OF SERVICE A true and correct copy of the foregoing MOTION FOR LEAVE TO FILE ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS was served electronically on Fred Weber, Caldwell County District Attorney, on 2/2/15. ______________________________ Charles F. Baird Page 4 of 5 No. ______________ IN THE TEXAS COURT OF CRIMINAL APPEALS IN RE JUSTIN TODD VALDEZ, PETITIONER FROM CALDWELL COUNTY COURT AT LAW CRIMINAL ACTION NO. 41070 HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING ORDER ON MOTION FOR LEAVE TO FILE ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS On this the ______day of February, 2015, the Court considered Petitioner’s Motion for Leave to File Original Petition for Writ of Habeas Corpus. It appears to the Court that said motion should be granted. Accordingly, it is ordered that Petitioner's Motion for Leave to File Original Petition for Writ of Habeas Corpus is granted and Petitioner is given leave to file an Original Petition for Writ Habeas Corpus and same shall be filed within ten (10) days from the granting of this Motion. ______________________________ Judge Presiding Page 5 of 5