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CADSE NO. WR-82,810-01
EX PARTE § IN T^HE COURT OP
. CRIMINAL APPEALS Ok
MARCO POLO MEDINA-GONZALEZ S THE STATE OF TEXAS
MOTION FOR LEAVE TO FILE PETITION FOR
WRIT OF PROHIBITION
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
Comes now Marco Polo Medina-Gonzalez,'relator in the above-
entitled and numbered cause, and respectfully moves this Court
pursuant to Texas Rule of Appellate Procedure'211(a), 121(a)(1)
to qrant leave to file the accompaning original petition for
writ of prohibition.
Wherefore, premises considered, Relator prays that this
Honorable Court of Criminal Appeals grant his Writ of Prohibi
tion in the interest of justice.
RECEIVED IN
COURT OF CRIMINAL APPEALS
MAY 112015
Abel Acosta, Clerk
CERTIFICATE OF SERVICE
I, Marco Polo Medina-Gonzalez, do certify that a true and
correct copy of this instrument has been served by placing same
in U.S. Mail, postage prepaid, on this 23rd day of April, 2015,
addressed to:
District Attorney-Abelino Reyna
/s/ #Ltq Mdr?^-^o^l^lez
Marc Allred Unit
2101 F.M. 369 Ndrth
Iowa Park, Texas 76367-6568
IN THE COURT OF CRIMINAL APPEALS
FOR THE
STATE OF TEXAS
EX PARTE § WR-82,810-01
MARCO POLO MEDINA-GONZALEZ *
APPLICATION FOR WRIT OF PROHIBITION
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
Comes now Marco Polo Medina-Gonzalez, hereinafter styled
relator, and files this application for writ of prohibition to
prohibit The 54th Judicial District Court .of Mclennan County,
Texas, respondent, from denyinq relator's Writ of Habeas Corpus
pursuant to Article 11.07, or from encouraging this Honorable
Court to deny relator's Writ of Habeas Corpus in Cause No. 2012-
2077-C2A, styled Ex parte Marco Polo Medina-Gonzalez. In support
of this application, relator shows the following:
I.
On December 11, 2014, Marco Polo Medina-Gonzalez filed an
application for Writ of habeas corpus pursuant to Article 11.07,
Tex.Code of Crim.P. with the District Clerk of Mclennan County,
Texas, alleging inter alia Ineffective Assistance of Counsel, and
Ineffective Assistance of Appellate Counsel, in which Judge Matt
Johnson designated these two issues specifically, and ordered by
decree trial counsel and Appellate counsel, which are one in the
same person, Denton B. Lessman to submit an affidavit by January
21, 2015. A copy of this order is attached as Exhibit A. Prior to
this.order via operation of law, the District Attorney answered
Mr. Gonzalez allegations. Mr.Reyna (district attorney) reflected
1 of 4
on the fact that Mr. Gonzalez was still conducting his direct
review process and that as a matter of fact, Mr. Gonzalez attor
ney had filed a timely motion to extend the time to file the
petition for discretionary review on December 19, 2014. The dead
line was on December 22, 2014. Mr.Reyna subsequently suggested
that due to Mr. Gonzalez status of the underlying conviction,
that his application for habeas review did not appear to be ripe
for determination and should be dismissed as being prematurely
filed. A copy of the State's answer is attached as Exhibit B.
Finally, the State habeas court judge submitted a findings of
fact and conclusion of law Memorandum. In the Memorandum the
trial court made an assessment of the issues but failed to order
a decision to Grant or Deny Relator's writ of habeas corpus. In
lieu, and alternatively, the trial court judge recommended and
.supposedly delegated this Honorable Texas Court of Criminal
Appeals to deny relief. A copy of the trial court's finding of
fact and conclusion of law is attached as Exhibit C. This Honor
able Courtrecieved Relator's application for 11.07 Writ of Habeas
on January 30, 2015. The cause number in this Court is
WR-82,810-01.
II.
The Respondent's proposed action is aiclear violation of law
based on the facts of this case because the Direct Review process
in Relator's case was still pending due to the fact that the man
date had not been issued. Relator contends that til this day he
has yet to recieve any document or paperwork from the court
that's entitled "MANDATE", and declares to this court that to.
the extent of his knowledge, he has'nt been issued a mandate from
2 of 4
the Tenth Court of Appeals thus, rendering the judgement not
final. Relator contends that'this Honorable Court of Criminal
Appeals has since ruled on the Petition for Discretionary Review,
in which it was refused on March 3, 2015. However, during the :. \ ->
time.period when Relator submitted his Writ of Habeas Corpus,.
Relator had yet to submit his PDR, in fact, he was still waiting
to see if the Court would grant the extention of time. Therefore,
as stated by the Representative of the State,"Relator's habeas
review was notrrdpe!'.The habeas court did not have jurisdiction z
to consider an application for writ of habeas corpus pursuant to
Article 11.07 until the felony judqement from which relief is
sought becomes final. Article 11.07 § 3 (a) V.A.C.C.P. E*.:parte
Thomas, 953 S.W.2d 285, 289 (Tex.Crim.App. 1997); Ex parte Brown
662 S.W.2d 3 (Tex.Crim.App. 1983); See Ex parte Renier, 734 S.W.:
2d 349 (Tex.Crim.App. 1987) (Teaque, J., dissenting) (discussing
rationales for final felony conviction requirement). A direct ') ;•;
appeal is final when the mandate from the Court of Appeals ::* ?> i" •
issues. Carter v. State, 510 S.W.2d 323, 324 (Tex.Crim.App. 1974)
Prior to the mandate, a judgement is not final.
Relator's claim is not ripe, because the application for writ
of habeas corpus was filed during the pendency of the direct
appeal. Consequently, as recommended by Mr. Reyna to the habeas
court judqe, Relator's Writ of habeas Corpus should have been
dismissed without prejudice for being prematurely filed.
III.
The relator has no adequate remedy at law to pursue the
requested relief other than this application.
3 of 4
IV.
This Court has jurisdiction to issue a writ of prohibition
in this cause under Article 5, Section 5 of the Texas Constitu*'r ~>
tion and Article 4.04 of the Code of Criminal Procedure.
WHEREFORE, Relator prays the Court grant this application
and issue a writ of prohibition directing The 54th District Court
of Mclennan County, Texas, Respondent, to dismiss without pre
judice, Relator's Writ of Habeas Corpus due to premature filing.
CERTIFICATE OF SERVICE
I, Marco Polo Medina-Gonzalez, do certify that a true and
correct copy of this instrument has been served by placing same
in U.S. Mail, postage prepaid, on this 23rd day of April, 2015,
addressed to:
District Attorney-Abelino Reyna
P.O. Box 2451
Waco, Texas
Marc© Polo Medina-Gonzalez
TDCJ-ID # 1907021
James V. Allred Unit
2101 F.M. 369 North
Iowa Park, Texas 76367-6568
4 of 4
CAUSE NO. WR-82,810-01
EX PARTE IN THE COURT OF
CRIMINAL APPEALS OF
MARCO POLO MEDINA-GONZALEZ THE STATE OF TEXAS
EXHIBIT A
RELATOR'S TRIAL AND APPELLATE ATTORNEY DENTON B. LESSMAN AFFIDAVIT
NO. 2012-2077-C2A aoL«im, c=US
/J Date: 20JS.01.15 15:02:39 -06W
Denton B. Lessman
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CAUSE NO. WR-82,810-01
EX PARTE § IN THE COURT OF
. CRIMINAL APPEALS OF
MARCO POLO MEDINA-GONZALEZ * THE STATE OF TEXAS
§
EXHIBIT B
THE STATE'S ANSWER TO RELATOR'S WRIT OF HABEAS CORPUS 11.Q7
No. 2012-2077-C2A
In the 54th Judicial District Court
of McLennan County, Texas
Ex Parte Marco Polo Medina-Gonzalez ^iSfe."-*<$>
State's Answer to an application
f o r w r i t o f habeas corpus
Pursuant to Article 11.07 of the Code of Criminal Procedure, the State of Texas,
by and through the Criminal District Attorney for McLennan County, Abelino 'Abel'
Reyna, files this answer to the Application for Writ of Habeas Corpus filed by MARCO
POLO MEDINA-GONZALEZ, hereinafter called "Applicant" This is a case other than a
case in which the death penalty was assessed.
Applicant alleges eight grounds for relief in his application. The application is
the first post-conviction writ he has filed.
CONCERNING THE NEED FOR AN EVIDENTIARY HEARING
There are no controverted, previously unresolved facts material to the legality of
Applicant's confinement which would necessitate a hearing. No evidentiary hearing is
needed or warranted under this Application, because any information could be
obtained by affidavit or otherwise.
ALLEGATIONS IN THE APPLICATION
Applicant contends that:
1) He was convicted on the basis of a false police report;
2) There was no evidence to support the conviction; and;
3) He was denied effective assistance of counsel.
T'T 0T2 4 3
GENERAL DENIAL
Pursuant to Article 11.07,all matters alleged in the application not specifically
admitted by the State in this answer are denied.
ANSWER OF THE STATE
Based on the Applicant's representations in his Application and Supporting
Brief, it appears that all three of the asserted grounds for relief complain of a scrivener's
error in a police report, which misstates Applicant's date of birth. Other than that, the
assertions, and representations set forth in the Application and Supporting Affidavit
appear to be mere ramblings, setting forth no basis in fact, law, or equity which would
entitle Applicant to habeas relief.
Answering further, the State would show that the Tenth Court of Appeals
affirmed the Applicant's conviction in its memorandum opinion issued in Cause
Number 10-13-00394-CR, issued November 21, 2014. The deadline for filing a petition
for discretionary review is December 22, 2014. On December 19, 2014, Applicant's
attorney Mr. Denton Lessman, filed with the Court of Criminal Appeals a motion to
extend the time to file the petition for discretionary review. Due to the appellate status
of the underlying conviction, the application for habeas review does not appear ripe for
determination, and should be dismissed.
CONCLUSION AND PRAYER
The State recommends to the Trial Court that this writ be denied as frivolous, as
there are no legal or factual grounds to support Applicant's claims. Alternatively, this
writ should be dismissed as being prematurely filed.
Respectfully Submitted:
Abelino 'Abel' Reyna
Criminal District Attorney
McLennan County, Texas
219 North 6th Street, Suite 200
Waco, Texas 76701
Phone (254) 757-5084
Fax (254) 757-502.V
Sterling•Harmopr
Chief, AppelMe Division
State Bar # 09019700
No. 2012-2077-C2A #// ~
decee " "" *J
In the 54th Judicial District Coj||%r ^ 5?^
of McLennan County, twq r^USt
Ex Parte Marco Polo Medina-Gonzalez
Designation of Issues
o n a n application f o r
WRIT OF HABEAS CORPUS
On Decemberll, 2014, applicant MARCOPOLO MEDINA-GONZALEZ filed an
application for writ of habeas corpus pursuant to Article11.07, Tex. Code Crim. P. with
the District Clerk of McLennan County. The District Attorney's officewas served with a
copy of the application by email. Applicant has alleged facts that, if true, may entitle
him to relief. Therefore, the trial court designates the issues to be resolved herein as:
1. What are the circumstances surrounding Applicant's claim that Denton B.
Lessman, Applicant's trial and appellate counsel, provided ineffective assistance
of counsel and his counsel's reasons and reasoning for his conduct, whether by
act or omission, regarding AppiicanPs allegations that" he "conspired with the
district attorney to imprison him?" (Ground 3; Supporting Brief, p. 12)
2. Whether the performance of Applicant's trial and appellate counsel, Denton B.
Lessman, was deficient and fell so far below the standard of prevailing
professional norms, that counsel was not functioning as the counsel guaranteed
the Applicant by the Sixth Amendment?
16 0 2 4 3? 91
3. Whether Applicant has overcome the strong presumption that Applicant's trial
and appellate counsel, Denton B. Lessman, rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment?
4. Whether Applicant's trial and appellate counsel, Denton B. Lessman's,
performance fell within the wide range of reasonable and professional assistance?
5. If Applicant's appellate counsel, Denton B. Lessman's performance was deficient,
whether his specific deficient acts or omissions, in their totality, were so serious
as to undermine confidence in the outcome and to have deprived Applicant of a
fair trial and appellate review—one whose result is reliable—such that there is a
reasonable probability that but for said deficient performance, if any, the result of
the appellate review would have been different?
6. Whether other findings of fact and conclusions of law should be made to resolve
the issue presented by applicant herein.
ORDER
The Trial Court determines that these issues can be resolved by affidavit and a
hearing is not necessary. Therefore, the trial court enters the following orders:
DentonB. Lessman is herebyORDERED to provide this court with his individualt,
affidavit addressing applicant's claims and the issues designated above.
t Applicant is hereby ordered to provide this Court with any additional
information or proof applicant believes would be helpful to this Court in resolving the
issues presented herein.
The Clerk of the Court is hereby ORDERED:
1. To deliver to Denton B. Lessman, copies of:
a. The application filed on December 11, 2014;
b. The State's Answer filed on December 22, 2014; and
•c. This Order;
2. To deliver to the Court of Criminal Appeals a copy of this Order.
Page 2 of 3
TIMETABLE
Unless a continuance is granted, all affidavits and proof shall be filed with the
Clerk of this Court no later than January 21, 2015, 2014. This Court will enter
appropriate' findings no later than February 4, 2015.
Signed and entered this C<— day of \^ctl* , 2014.
Matt Johnson
Judge Presiding
Page 3 of 3
CAUSE NO. WR-82,810-01
EX PARTE § IN THE COURT OF ORIS
. CRIMINAL APPEALS OF
MARCO POLO MEDINA-GONZALEZ * THE STATE OF TEXAS
EXHIBIT C
TRIAL COURT'S FINDING OF FACT AND CONCLUSION IN HABEAS PROCEEDING
^ • ,
No. 2012-2077-C2A JfV MO, W&
In the 54th Judicial District Court \ Mitcfa ^*
of McLennan County, Texas nSo£
Ex Parte Marco Polo Medina-Gonzalez
Findings of Fact and Conclusions of Law
o n a n application f o r
writ of habeas corpus
On December 11, 2014, applicant MARCO POLO MEDINA-GONZALEZ filed an
application for writ of habeas corpus pursuant to Article11.07, Tex. Code Crim.P. with
the District Clerk of McLennan County. The District Attorney's officewas served with a
copy of the application by email. Applicant has alleged facts that, if true, may entitle
him to relief. Therefore, the trial court designated the issues to be resolved herein as:
1. What are the circumstances surrounding Applicant's claim that Denton B.
Lessman, Applicant's trial and appellate counsel, provided ineffective assistance
of counsel and his counsel's reasons and reasoning for his conduct, whether by
act or omission, regarding Applicant's allegations that he "conspired with the
district attorney to imprison him?" (Ground 3; Supporting Brief, p. 12)
2. Whether the performance of Applicant's trial and appellate counsel, Denton B.
Lessman, was deficient and fell so far below the standard of prevailing
professional norms, that counsel was not functioning as the counsel guaranteed
the Applicant by the Sixth Amendment?
6 3 6 2 3 1
3. Whether Applicant has overcome the strong presumption that Applicant's trial
and appellate counsel, Denton B. Lessman, rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment?
4. Whether Applicant's trial and appellate counsel, Denton B. Lessman's,
performance fell within the wide range of reasonable and professional assistance?
5. If Applicant's appellate counsel, Denton B. Lessman's performance was deficient,
whether his specific deficient acts or omissions, in their totality, were so serious
as to undermine confidence in the outcome and to have deprived Applicant of a
fair trial and appellate review—one whose result is reliable—such that there is a
reasonable probability that but for said deficient performance, if any, the resultof
the appellate review would have been different?
6. Whether other findings of fact and conclusions of law should be made to resolve
the issue presented by applicant herein.
FINDINGS AND CONCLUSIONS
1. Denton B. Lessman, Applicant's trial and appellate counsel, filed an affidavit
addressing Applicant's claims on January 21, 2015.
2. The affidavit is found to be true, correct, and worthy of belief. The affidavit is
accepted for all purposes.
3., Applicant has alleged no factual basisfor the assertion that his triaLand appellate
and the District Attorney conspiredin any way againstthe Applicant. Applicant
complains of a scrivener's error on Applicant's date ofbirth contained in a police
report. Thiserror had no relevance or bearingon the case, and falls far short of
showing any sort of collusion.
4. Applicant's trial and appellate counsel's performance was at all times sufficient
and fell within the standard of prevailing professional norms so as to afford
Applicanteffective assistance of counsel as guaranteed by the Sixth Amendment.
5. There has been no showing that Applicant's trial and appellate counsel rendered
inadequate assistance in his representation ofApplicant, nor any showing that
counsel's significant decisions were the result of anything other than the exercise
of reasonable professional judgment.
6. The performance of Applicant's trial and appellate counsel fell within the range
of reasonable and professional assistance.
7. There are no other issues material to Applicant's claims which need to be
resolved.
RECOMMENDATION OF THE TRIAL COURT
Therefore, the Trial Court recommends to the Honorable Texas Court of Criminal
Appeals that all relief be denied.
ORDER TO THE CLERK
Now, therefore, the Clerk of the Court is ORDERED to immediately transmit to
the Court of Criminal Appeals all necessary documents not heretofore transmitted, and
a Clerk's Summary Sheet and a certificate reciting the date upon which this finding was
made, and this order, finding and recommendation.
If the Clerk has received any communication from Applicant before such
transmissioh, a copy of said communication shall also be sent to the Court of Criminal
..Appeals.... -,.
A copy of this Order shall also be mailed to applicant at the address shown on
the application.
Signed and entered this c-A day of ^fi^ »
Matt Johnson
Judge Presiding