is^o^ 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 Jc*rr?es I/- /4///BJ £//7/V, XlOi FA 36fAJ, J- &m isjri'-fj/if }fi rcj^^jjrds. h the. UOJ-_B'ie< by. rnt an sqy co.sc, Im $u artd fistfy s£r, hehkttd _md^Snp_p_ > U_ ^ % c. ^ --Q> -is. H4 ^ "p r 8 x 2 © tl CAUSE NO. WR-82,810-01 EX PARTE § IN THE COURT OF . CRIMINAL APPEALS OF MARCO POLO MEDINA-GONZALEZ * THE STATE OF TEXAS § EXHIBIT B THE STATE'S ANSWER TO RELATOR'S WRIT OF HABEAS CORPUS 11.Q7 No. 2012-2077-C2A In the 54th Judicial District Court of McLennan County, Texas Ex Parte Marco Polo Medina-Gonzalez ^iSfe."-*<$> 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