Cooper, Johnathan

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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