ZfS-IS NO. PD-0895-15
COURT OF CRIMINAL APPEALS OF TEXAS
TEX." R. APP. P. 68.2(a)
ORIGINAL
RECEIVED ?R
"RTOFCRIiI'MALA^^-ALS
JOHNATHAN COOPER,
Appellant
SEP 23 2015
VS.
FILED IN
COURT OF CRIMINAL APPEALS
THE STATE OF TEXAS,
SEP 23 IZ'.j
Appellee
Abel Acosta, Cierk
Oh Petition for Discretionary Review
from the Second Court of Appeals
in No. 02-15-00145-CR Affirming the Conviction
in No. 1031532D from the
297th District Court
Tarrant County, Texas
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Johnathan Cooper
TDCJ No. 1862306
F.M. Robertson Unit
12071 FM 3522
Abilene, TX 79601
Appellant, pro se
IDENTITIES OF PARTIES
APPELLANT Johnathan Eugene Cooper
STATE'S ATTORNEY
ON APPEAL Debra Windsor
Assistant District Attorney
401 W. Belknap St.
Fort Worth, TX 76196-0201
TRIAL JUDGE Honorable Everret Young
297th Judicial District Court
Tarrant County, Texas
HABEAS TRIAL JUDGE Honorable David C. Hagerman
297th Judicial District Court
Tarrant County, Texas
li
TABLE OF CONTENTS
IDENTITIES OF PARTIES ii
TABLE OF CONTENTS iii
INDEX OF AUTHORITIES iv-v
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 2
STATEMENT OF PROCEDURAL HISTORY 3
GROUNDS FOR REVIEW 4
1. Does the court of appeals have any jurisdiction to
review the slower court's denial of Appellant's motion
requesting appointment of counsel for purposes of invest
igating, preparing and presenting his ineffective assist
ance of counsel claim(s) in a postconviction Article
11.07 application for writ of habeas corpus?
2. Did the court of appeals err in concluding that it
does not have jurisdiction to review the lower court's
decision without conducting proper inquiry?
3. What court would have proper jurisdiction to review
denial of a request for appointment of counsel made pur
suant to article 11.074, Tex. Code Crim. Proc?
REASONS FOR REVIEW 5
ARGUMENT AND AUTHORITIES 6-10
Ground 1 6-8
Ground 2 8"10
qround 3 10
PRAYER 11
UNSWORN DECLARATION 11
CERTIFICATE OF SERVICE 12
APPENDIX 13-19
ill
INDEX OF AUTHORITIES
CASES
Bright v. State,
296 S.W.3d 329 (Tex.App. - Amarillo 2009) 7, 8
Martinez v. Ryan,
132 S.Ct. 1309 (2012) 6
McKown v. State,
915 S.W.2d 160 (Tex.App. - Fort Worth 1996, no pet.). 7
Pitts v. State,
113 S.W.3d 393 (Tex.App. - Houston [1st Dist.] 2003) 7, 8
Trevino v. Thaler,
133 S.Ct. 1911 (2013) 6
STATUTES
Tex. Code Crim. Proc.
Article 1.051(d) 6
Article 11.07 4
Article 11.074 c 4# 10
Chapter 64 ' 7
Tex. Gov't. Code
Section 24.016 6» 7
Tex. Pen. Code
Section 22.011(a)(2) 2
iv
STATEMENT OF THE CASE
After agreeing to plead no contest in exchange for a recom
mended punishment of two years confinement (time-served), Appel
lant was convicted of the offense of sexual assault of a minor,
Tex. Pen. Code Ann., sec. 22.011(a)(2), in the 297th District
Court of Tarrant County, Texas. Punishment was thereafter asses
sed at the recommended two years confinement.
STATEMENT OF PROCEDURAL HISTORY
Proceeding pro se, Appellant filed motion in the convicting
court seeking appointment of habeas counsel. That motion was
denied. Appellant thereafter sought motion for reconsideration
of the court's perfunctory denial. That motion too was perfunct
orily denied by the convicting court on July 7, 2015. Appellant
took timely appeal. In a written per curiam opinion issued.on
June 18, 2015, the Second Court of Appeals dismissed the appeal
for want of jurisdiction. No motion for rehearing was sought.
GROUND FOR REVIEW 1
Does the court of appeals have any jurisdiction to review
the lower district court's denial of Appellant's motion request
ing appointment of counsel for purposes of investigating, pre
paring and presenting his ineffective assistance of counsel
claim(s) in a postconviction Article 11.07 application for writ
of habeas corpus?
GROUND FOR REVIEW 2 *
Did the court of appeals err in concluding that it does
not have jurisdiction to review the lower court's decision with
out conducting proper inquiry?
GROUND FOR REVIEW 3
What court would have proper jurisdiction to review denial
of a request for appointment of counsel made pursuant to article
11.074, Tex. Code Crim. Proc?
REASONS FOR REVIEW
1. The court of appeals' decision conflicts with another
court of appeals' decision on the same issue. TEX. R. APP. P.
66.3(a)
2. The court of appeals has decided an important question
of state law that has not been, but should be, settled by the
Court of Criminal Appeals. TEX. R. APP. P. 66.3(b).
3. The court of appeals has so far departed from the ac
cepted and usual course of judicial proceedings as to call for
an exercise of the Court of Criminal Appeals' power of super
vision. TEX. R. APP. P. 66.3(f).
GROUND FOR- REVIEW 1
Statement of Facts
Appellant filed in the 297th District Court of Tarrant Coun
ty, Texas, his motion seeking appointment of habeas counsel
pursuant to the United States Supreme Court's decisions in Mar
tinez v. Ryan, 132 S.Ct. 1309 (2012) and Trevino v. Thaler,
133 S.Ct. 1911 (2013), as well as article 1.051(d), Tex. Code
Crim. Proc, and section 24.016, Tex. Gov't. Code, for the speci
fic purpose of investigating, preparing and presenting his claim
of ineffective assistance of counsel in an article 11.07 applica
tion for writ of habeas corpus. That motion was perfunctorily
denied by the district court. Appellant thereafter filed motion
for reconsideration in the district court which was denied on
July 7, 2015. Appellant timely noticed appealed to the Second
Court of Appeals sitting at Fort Worth, Texas.
On May 13, 2015, concerned that it lacked jurisdiction over
the appeal because it "has no jurisdiction over matters relating
to postconviction applications under article 11.07, including
requests for appointment of counsel," the court of appeals not
ified the parties that if either desired to continue the appeal,
they must file with the court, on or before May 26, 2015, a
response showing grounds for continuing the appeal (Cooper v.
State, COA No. 02-15-00145-CR j) K'Appendlat li7vl.8).. Appellant filed
a pro se response to the court's May 13, 2015 letter.
In a written per curiam opinion issued on June 18, 2015,
the court of appeals dismissed the appeal for want of jurisdict
ion, explaining that it generally has jurisdiction to consider
an appeal by a criminal defendant only from a judgement of con
viction, citing McKown v. State, 915 S.W.2d 160, 161 (Tex.App. -
Fort Worth 1996, no pet.). The court of appeals went on to opine
that it does not have jurisdiction over a postconviction appli
cation for writ of habeas corpus in a felony case, including
a related motion for appointment of counsel (citations omitted)
(Memo. Op., Appendix at
Argument and Authorities
The court of appeals' disposition of the appeal conflicts
with the Amarillo court of appeals' decision in Bright v. State,
296 S.W.3d 329 (Tex.App. - Amarillo 2009) (court of appeals
possessed limited jurisdiction to review the denial of appoint
ment of counsel), as well as conflicts with the Houston court
of appeals' decision in Pitts v. State, 113 S.W.3d 393 (Tex.App.
- Houston [1st Dist.] 2003) (requiring trial courts to appoint
counsel in exceptional cases under section 24.016, Tex. Gov't.
Code, and that order denying such appointment reviewed by court
of appeals for abuse of discretion).
Appellant argues that court of appeals in this case had,
at the very least, "limited" jurisdiction to consider the lower
court's denial of his motion seeking appointment of habeas coun
sel, similar to that of a denied motion for appointment of coun
sel in a DNA testing request under Chapter 64, Tex. Code Crim.
Proc, Bright v. State, supra, or that of denial of appointment
of counsel in an expunction proceeding, Pitts v. State, supra.
GROUND FOR REVIEW 2
Statement of Facts
Having been unexpectedly notified by the court of appeals
that he was required to show how the court may have jurisdiction
to review the lower court's denial of his motion for habeas
counsel, Appellant moved the court of appeals for an extension
of time in which to research and prepare a showing to continue
the appeal because Appellant was at that time being housed ac
cording to the institutional "in-transit" protocol after return
to TDCJ-CID following benchwarrant to his county of conviction.
Design and operation of access to courts applicable to pris
oners housed in the "in-transit" protocol is such that the pris
oner has only limited access to legal materials from the unit
law library. That is, the prisoner may request only three items
of reference per day. Rather than have the benefit of being
permitted to attend the unit law library where legal reference
materials are kept and maintained, the "in-transit" prisoner
can only request three legal references per day, and those refer
ence Items are delivered to him the day following his request,
and retrieved by unit law library personnel twenty-four hours
later.
These circumstances make it particularly difficult and time-
consuming for the pro se appellant to adequately research appli
cable statutory and decisional law - especially in a matter
such as this one where the issue at hand is new and rather unset
tled or otherwise unclear. In other words, if the court of ap
peals, in its vast knowledge and resources, is unsure whether
it has jurisdiction to review a given lower court decision,
how much moreso for the layman appellant who is proceeding pro
se with very limited access to legal reference materials due
to the circumstances of his being temporarily housed under the
more restrictive "in-transit" protocol.
Argument and Authorities
Appellant argues that it was improper and erroneous for
the court of appeals to dismiss the appeal for want of juris
diction without reviewing the case and itself conducting adequate
inquiry into the matter of jurisdiction, given that the matter
appears unsettled, and/or without granting Appellant adequate
time to further research the matter where, at the time of the
court of appeals' May 13, 2015, notice to the parties through
the May 26, 2015 deadline set by the court of appeals for the
parties to show grounds for continuiing the appeal, Appellant's
institutional housing status was that of "in-transit," which
provides Appellant limited access to law books and legal refer
ence materials.
Moreover, because there has been recent drastic changes
in state and federal law relevant to the appointment of counsel
.in criminal habeas cases which are sure to make request for
habeas counsel in such cases as this one a common and routine
matter, the court of appeals should have taken the opportunity
presented by this case to sua sponte determine whether it posses
ses jurisdiction to review a lower court's denial of requests
for appointment of habeas counsel made pursuant to those recent
changes in relevant state and federal law.
GROUND FOR REVIEW 3
Statement of Facts
Article 11.074, Tex. Code Crim. Proc. is newly added to
the code. Statutory law, at least that available for Appellant
to review within the institutional setting, does not expressly
indicate exactly what court has jurisdiction to review the denial
of a of a request for appointment of counsel made pursuant to
Article 11.074.
Argument and Authorities
Appellant argues that, similar to denials of appointment
of counsel requests made during DNA testing proceedings and
expunction proceedings, the court of appeals should possess
at least a limited jurisdiction to review denials of appointment
of counsel in a proceeding related to a postconviction applica
tion for writ of habeas corpus.
10 '
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays the Honorable
Court grants discretionary review of the court of appeals' dis
position dismissing the appeal for want of jurisdiction. Appel
lant prays for general relief.
Respectfully submitted,
L
Johnathan Cooper
TDCJ No. 1862306
French M. Robertson Unit
12071 FM 3522
Abilene, TX 79601
Appellant, pro se
UNSWORN DECLARATION
I, Johnathan Cooper, TDCJ No. 1862306, being presently incar
cerated within the French M. Robertson Unit of the Texas Depart
ment of Criminal Justice-Correctional Institutions Division,
located in Jones County, Texas, hereby declare under penalty
of perjury that the foregoing is true and correct, and placed
in the outgoing institutional mailbox on this RSu^ day of Sept
ember, 2015, to be mailed U.S. Mail, first-class postage prepaid,
addressed to: Court of Criminal Appeals of Texas, P.O. Box
12308, Capitol Station, Austin, Texas 78711-2308. Executed on
this the fg£*vday of September, 2015.
johnathan Cooper
11
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore
going pleading has been duly served upon opposing counsel by
mailing same U.S. Mail, firest-class postage prepaid, addressed
to: Debra Windsor, Assistant District Attorney, 401 W. Belknap
St., Fort Worth, TX 76102-1913. Executed on this the (Off-?, day
of September, 2015.
johnathan Cooper
12
CAUSE NO. 1031532D
THE STATE OF TEXAS IN THE 297TH
VS DISTRICT COURT OF
JOHNATHAN COOPER TARRANT COUNTY, TEXAS
ORDER ON DEFENDANTS PRO SE MOTION
On this the 7th day ofJuly, 2015, Defendant's Pro Se Motion for RECONSIDERATION OF
DEFENDANT MOTION REQUESTING APPOINTMENT OF HABEAS CORPUS COUNSEL
was presented to the court.
The motion has been considered and said motion is hereby;
(GRANTED) (NO ACTION)
OR Set for hearing beforethis court on the
o'clock .m.
_Copy sent to Defendant, Defense attorney and Attorney for the State
on .by
FILED
THOMAS A WlUDEapiST. CLERK
TARRANT COUNTY. TEXAS
JUL 0 8 2015
BY. sail .DEPUTY
Appendix - 14
Court of Appeals
Second District of Texas
CHIEF JUSTICE CLERK
TERRIE LIVINGSTON TIM CURRY CRIMINAL JUSTICE CENTER
DEBRA SPISAK
401 W. BELKNAP, SUITE 9000
JUSTICES FORT WORTH, TEXAS 76196-0211 CHIEF STAFF ATTORNEY
LEEANNDAUPHINOT LISA M. WEST
ANNE GARDNER TEL: (817) 884-1900
SUE WALKER GENERAL COUNSEL
BILL MEIER FAX: (817) 884-1932 CLARISSA HODGES
LEE GABRIEL
BONNIE SUDDERTH www.txcourts.gov/2ndcoa
May 13, 2015
Johnathan Cooper
Byrd Unit #1862306
21 FM 247
Huntsville, TX 77320
RE: Court of Appeals Number: 02-15-00145-CR
Trial Court Case Number: 1031532D
Style: Johnathan Cooper
v.
The State of Texas
The court has received a copy of the notice of appeal in this case. See
Tex. R. App. P. 25.2(c).
The court is concerned that it lacks jurisdiction over this appeal because
this court has no jurisdiction over matters relating to postconviction applications
under article 11.07 of the code of criminal procedure, including requests for
appointment of counsel. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp.
2014).
Unless the appellant or any party desiring to continue the appeal files with
the court, on or before Tuesday, May 26, 2015, a response showing grounds for
continuing the appeal, this appeal may be dismissed for want of jurisdiction. See
Tex. R. App. P. 44.3.
Respectfully yours, i
DEBRA SPISAK, CLERK
By: Bonnie Alexander, Deputy Clerk
Appendix - 15
02-15-00145-CR
May 15, 2015
Page 2
cc: Criminal District Clerk, Tarrant County
Tim Curry Criminal Justice Center
401 W. Belknap, 3rd Floor
Fort Worth, TX 76196
Court Reporter, 297th District Court
Tim Curry Criminal Justice Center
401 W. Belknap St.
Fort Worth, TX 76196-0229
David C. Hagerman
Judge, 297th District Court
Tim Curry Criminal Justice Center
401 W. Belknap, 5th Floor
Fort Worth, TX 76196
Debra A. Windsor
Assistant District Attorney
401 W. Belknap St.
Fort Worth, TX 76102-1913
Appendix - 16
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00145-CR
JOHNATHAN COOPER APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1031532D
MEMORANDUM OPINION1
On April 30, 2015, Appellant Johnathan Cooper filed a notice of appeal
challenging the trial court's January 28, 2015 order denying his motion for
appointment of postconviction habeas counsel. We sent Appellant a letter
notifying him of our concern that we lack jurisdiction over this appeal because
this court has no jurisdiction over matters relating to postconviction applications
1See Tex. R. App. P. 47.4.
Appendix - 17
under article 11.07 of the code of criminal procedure.2 We indicated that .this
appeal could be dismissed absent the filing of a response showing grounds for
continuing the appeal. Although we received a response, it does not show
grounds for continuing the appeal.
We generally have jurisdiction to consider an appeal by a criminal
defendant only from a judgment of conviction.3 We do not have jurisdiction over
a postconviction application for writ of habeas corpus in a felony case, including
a related motion for appointment of counsel.4
Accordingly, we dismiss this appeal for want of jurisdiction.
PER CURIAM
PANEL: DAUPHINOT, GARDNER, and WALKER, J J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 18, 2015
2Tex. Code Crim. Proc. Ann. art. 11.07, § 5 (West 2015).
3See McKown v. State, 915 S.W.2d 160, 161 (Tex. App.—Fort Worth
1996, no pet.).
4Taylor v. State, No. 14-13-00614-CR, 2013 W.L 4816409, at *1 (Tex.
App—Houston [14th Dist.] Sept. 10, 2013, no pet.) (mem. op., not designated for
publication); Ex parte Wall, No. 02-11-00326-CR, No. 02-11-00517-CR, 2012 WL
5869595, at *9 (Tex. App.—Fort Worth Nov. 21, 2012, no pet.) (mem. op., not
designated for publication); see Tex. Code Crim. Proc. Ann. art. 11.07, § 5; Ater
v. Eighth \Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig.
proceeding) (stating that the Texas Court of Criminal Appeals is the "only court
with jurisdiction in final post-conviction felony proceedings").
2
Appendix - 18
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00145-CR
Johnathan Cooper § From the 297th District Court
§ of Tarrant County (1031532D)
v. § June 18,2015
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
the appeal should be dismissed. It is ordered that the appeal is dismissed for
want of jurisdiction.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
Appendix - 19
Court of Appeals
Second D i s t r i c t o f Texas
CHIEF JUSTICE CLERK
TERRIE LIVINGSTON tim curry criminal justice center DEBRA SPISAK
401 w. belknap, suite 9000
JUSTICES fort worth, texas 76196-0211 CHIEF STAFF ATTORNEY
LEE ANN DAUPHINOT LISA M. WEST
ANNE GARDNER TEL: (817) 884-1900
SUE WALKER GENERAL COUNSEL
BILL MEIER FAX: (817) 884-1932 CLARISSA HODGES
LEE GABRIEL
BONNIE SUDDERTH www.txcourts.gov/2ndcoa
June 1,2015
Johnathan Cooper— Debra A. Windsor
Byrd Unit #1862306 Assistant District Attorney
21 FM 247 401 W. Belknap St.
Huntsville, TX 77320 Fort Worth, TX 76196-0201
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 02-15-00145-CR"
Trial Court Case Number: 1031532D
Style: Johnathan Cooper
v.
The State of Texas
The pro se's response to our letter dated May 15, 2015, has been filed
under the date of Thursday, May 28, 2015, in the above referenced cause.
Respectfully yours,
DEBRA SPISAK, CLERK
By: Karen Brown, Deputy Clerk
Appendix - 20
NO. PD-0895-15
JOHNATHAN COOPER § IN THE COURT OF
§
vs. § CRIMINAL APPEALS
§
THE STATE OF TEXAS § AUSTIN, TEXAS
MOTION TO SUSPEND RULE 68.11
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Johnathan Cooper, Appellant, pro se, and respect
fully moves the Court to exercise its authority granted by Rule
2, Tex. R. App. Proc, to suspend operation of Rule 68.11, Tex.
R. App. P., in this case. In support of this motion, Appellant
would show the following:
I. .
1. Appellant is petitioning the Court for discretionary
review of the court of appeals' order dismissing the appeal
in Johnathan Cooper v. State of Texas, COA No. 02-15-00145-CR.
2. Rule 68.11 of the Texas Rules of Appellate Procedure,
requires that Appellant serve a copy of the petition upon the
State Prosecuting Attorney in addition to the service required
by Rule 9.5 of said rules.
3. Appellant, as a prisoner confined within the Texas
Department of Criminal Justice-Correctional Institutions Division
does not have access to photocopying equipment capable of making
multiple copies of the petition for service upon both State's
attorneys..
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays the Honorable
Court grants this motion and suspends operation of Rule 68.11,
Tex. R. App. P., in this case. Appellant prays for general relief.
Respectfully submitted,
^Johnathan Cooper
TDCJ No. 1862306
French M. Robertson Unit
12071 FM 3522
Abilene, TX 79601
Appellant, pro se
UNSWORN DECLARATION
I, Johnathan Cooper, TDCJ No. 1862306, being presently incar
cerated at the French M. Robertson Unit of the Texas Department
of Criminal Justice-Correctional Institutions Division, located
in Jones County, Texas, hereby declare under penalty of perjury
that the foregoing is true and correct, and placed in the out
going prison mailbox on this \^P-t day of September, 2015, to
be mailed U.S. Mail, first-class postage prepaid, addressed
to: Court of Criminal Appeals of Texas, P.O. Box 12308, Austin,
Texas 78711-2308. Executed on this the I$Pq day of September,
2015.
6sLo-- Cj-•^au>
ohnathan Cooper
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore
going document has been duly served upon opposing counsel
via U.S. Mail, first-class postage prepaid, addressed to:
Debra A. Windsor, Assistant District Attorney, 401 W. Belknap
St., Fort Worth, TX 76196-0201. Executed on this the /S^-
day of September, 2015.
\Johnathan Cooper
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