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Mr. Ervin Kay August 3, 2015
TDCJ #1331828
Darrington Unit
Rosharon, Tx. 77583 RECEiVED IN
COURT OF CR!~mNAL APPEALS
TEXAS COURT OF CRIMINAL APPEALS AUG 07 2il15
Attn: Court Clerk
P.O. Box 12308
Capitol Station Abet Atosta, Clerk
Austin, Tx. 78711
Re: ENCLOSED "PETITION FOR WRIT OF MANDAMUS", CHALLENGE . TO
THE 262nd JUDICIAL DISTRICT COURT, Cause No. 1028331&
1028332
Dear Court Clerk:
Enclosed, please find an Original Copy of .Relator's, "Petition
For Writ Of Mandamus" to be filed before the Court, seeking to
compel the lower court to alter an unwarranted five ( 5) year
delay and Rule on the Constitutional Merits of his post-trial
Claims, advanced in his 11.07., currently pending. Please file
said 'Mandamus• before the Court, having the appropriate
Jurisdiction over the same, at the Court's earliest
convenierice. Your help in filing said 'Mandamus' before the
Court, having the appropriate Jurisdiction over the same, at
the Court's earliest convenience, would ·. be greatly
appreciated. By copy of this letter and the enclosed
'Petition', I am forwarding a copy of the same to the
Respondent, Hon. DENISE BRADLEY, Judge, 262nd Judicial
District Court, Harris County, Texas~
Sincerely,
Ervin Kay
Relator pro Se
TDCJ #1331828
Cause No.
ERVIN KAY, § In The Texas Court
(Relator)
vs. § Of Criminal Appeals
Hon. DENISE BRADLEY, Judge
262nd Judicial District Court,
(Respondent) § Travis County, Texas
PETITION FOR WRIT OF MANDAMUS
Challenge To Cause No. 1028331& 1028332
In The 262nd Judicial District Court
Harris County, Texas
TO THE HONORABLE JUDGES OF SAID COURT:
PLEASE TAKE NOTICE, that COMES NOW, ERVIN KAY, Relator,
Pro Se, in the above styled cause, files this his "Petition
For Writ Of Mandamus", in good faith, contending Due Process
and the interest of justice would best be served by this Court
Granting the same, and in support thereof, your Relator would
present the following:
I.
JURISDICTION
That this Honorable Court has Jurisdiction to entertain
said 'Petition' pursuant to Art. 22.221, et.al., Government
2
Code, Art. 1 Sec. 10, Texas Constitution; U.S.C.A., Amend. 5;
14.
II.
PROCEDURAL HISTORY
That your Relator was charged with the Offense of
Aggravated Robbery. Judgment was rendered against Relator
September 29, 2005. Direct Appeal was advanced in the 14th
Court of Appeals, located in Harris County, Texas. Relator
subsequently filed a State habeas Petition before the Court,
262nd Judicial District Court, Hon. MIKE ANDERSON, on January
7, 2010. Relator challenged the Constitutionality of his
confinement on the grounds of· • Involuntary Plea •; and
• Ineffective Assistance of Counsel. • Pursuant to the
provisions of Art. 11.07 Sec 3, et.al., V.A.C.C.P., the State
'Designated Issues To Be Resolved'. Said • Designation of
Issues To Be Resolved •, consisting of seven (7) distinct
points for resolution, was signed by the Trial Court, and
implemented more than five ( 5) years ago. As of this date,
the 'Designation Of Issues • has yet to be resolved, pursuant
to the provisions of Art. 11.07 Sec. 3.
III.
MINISTERIAL ACT
That your Relator asserts the act he seeks is wholly
• Ministerial'. Moreover, your Relator has no other remedy at
3
law to advance the Constitutional merits of :his claims towards
resolution, save for the filing of this his 'Petition For Writ
Of Mandamus. ' See In Re Jackson, 238 S. W. 3d 603, 605-606,
(Tex. App. - Waco 2007}; Padieu v. Court Of Appeals, 392
s.w. 3d 115, (Tex. Cr. App. 2013); Government Code,
Art. 22.021, et.al.; u.s.c.A., Amend. 5; 14.
IV.
UNREASONABLE DELAY
That your Relator challenged the Constitutionality of his
confinement, contending, inter alia, his plea was rendered
involuntarily, unknowingly and unintelligently, due to 'mental
impairment' and Counsel's, JEROME GOD INCH, rendering of
unreasonable, ineffective assistance of Counsel. More than
five (5) years has elasped since the 'Designation Of Issues'
to be resolved. Said delay, in ·resolving Relator's factual
allegations, is unreasonable. Relator has no other way to
compel the speedy resolution of his claims, as required by the
provisions of Art. 11.07 Sec. 3, et. al., save for the
advancement of this his 'Petition For Writ of Mandamus.'
WHEREFORE, PREMISES, ARGUMENTS and AUTHORITIES
CONSIDERED, your Relator prays and respectfully urge for this
Honorable Court to Grant said 'Mandamus', to accord Relator
the speedy resolution of his claim, in the interest of
justice. Relator further prays this Court would determine the
five ( 5) year delay is unreasonable, and that due process
4
would be best served by this Court compelling resolution of
the same. Alternatively, your Relator prays for whatever
other, further or different relief this Court deemed is just
and proper, including the Ordering of an 'Evidentiary Hearing'
to address the Constitutional Merits of Relator's Post-Trial,
unresolved allegations of facts, material to the legality of
his confinement, that warrants resolution to determine whether
or not your Relator is patently confined in breach of the
United States and Texas Constitution, in the interest of
justice. It is so prayed for.
Respectfully submitted,
ERVIN KAY
Relator Pro Se
TDCJ #1331828
Darrington Unit
Rosharon, Tx. 77583
AFFIDAVIT
PURSUANT TO TITLE 6, CHAPTER 132, V.T.C.A., CIVIL PRACTICE
AND REMEDIES CODE, AND 28 U.S.C. § 1746:
I, ERVIN KAY, Relator Pro Se, being currently confined in
the Texas Department of Criminal Justice Institutional
Division, at the Darrington Unit, located here in Brazoria
County, Texas, have read the foregoing 11
PETITION FOR WRIT OF
MANDAMUS 11
, seeking to compel the Lower Court to respond,
hereby DEPOSE AND DECLARE under the pain and penalties of
PERJURY the foregoing • Petition For Writ Of Mandamus • is true
and correct to the best of Relator's belief and knowledge.
EXECUTED ON THIS THE --1.~"" DAY OF 4~~ I 2015.
ERVIN KAY
Relator Pro Se
TDCJ #1331828
Darrington Unit
Rosharon, Tx. 77583
CERTIFICATE OF SERVICE
I, ERVIN KAY, Relator, Pro Se, files this his "PETITION
FOR WRIT OF MANDAMUS", in good faith, and in the interest of
justice, seeking to have the Higher Court compel the lower
court to address the Constitutional Merits of his claims,
hereby CERTIFY a true and correct legible copy of the
foregoing "PETITION FOR WRIT OF MANDAMUS" was served upon
the below named and listed parties by placing the same in
the United States Mail, in a wJpper, with pre-paid postage
affixed thereto, on this the '3 G day of ~u~:b 2o15.
1. TEXAS COURT OF CRIMINAL APPEALS
Attn: Hon. ABEL ACOSTA, Clerk
P.O. Box 12308, Capitol Station
Austin, Tx. 78711
2. HARRIS COUNTY COURTHOUSE
262nd judicial District Court
Hon. DENISE BRADLEY, Judge
1201 Franklin St., 15th Fl.
Houston, Tx. 77002
Relator, Pro Se
TDCJ #1331828
Darrington Unit
Rosharon, Tx. 77583