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IN THE COUkT OF CRIMINAL j
APPEALS OF TEXAS
CAUSE NO. 306bOA-422
bARRYL RAYNARD GORDON (RELATOR) 1
'; .. '
vs. ,.
HON. JUDGE B. MICHEAL CHI:fl:Y
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422nd. DISTRICT COURT OF
KAUFMAN COUNTY, KAUFMAN TK.
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(~ESPONDENT.)
* *** * *** ***** * *** ** *·1r* **'* **:*'* * * *** **** ******"':* **·*. **** * *
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ON PETITION FOR·WRIT OF MANDAMVS
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3 JESTER Rd-11852766
RICHMOND, TX. 77406
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CAUSE NO:
IN RE: DARRYL RAYNARD GORDON § IN THE CRIMINAL
Relator, §
COURT OF APPEALS,
§
v. § AUSTIN, TEXAS,
§
HON. B. MICHEAL CHITTY §
Respondent, §
PETITION FOR WRIT OF MANDAMUS
Comes now, DARRYL R. GORDON, Relator, to file this Petition
for a WRIT OF MANDAMUS pursuant to the Texas Rules of Appellate
Procedur~ 52, and for good cause as Relator is illegallt restr-
ainded and confined of his liberty in direct violation of the u.s.
and TEXAS CONSTITUTION, BEING HOUSED IN THE Texas Department of
Criminal Just ice Correctional Divis ion , on thd. Jester·.. 3 unit,
Richmond, Tx, 77406.
I. STATEMENT OF JURISDICTION
Under Article V~ Section 3 of the Texas Constitutiori and
Section 22.002(a);
of the Texas Gove:tment Code which grants the Supreme Court of
Texas to issue a Writ of Mandamus.
II. PARTIES
Relator, Darryl R. Gordon is an individual seeking Habeas corpus
Relief in Criminal Cause: 30600A-422
Respondent, Hon. Judge B. Micheal Chitty of the 422nd·. District
court of Kaufman county, Kaufman, Tx 75142
/
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··.' III. HISTORY OF PROCEDUR~(ing)
Relator, was indicted for the offence of Eva~ing ArreSt
. . !
with a Motor vehicle in Cause #30600; the offence was alledged
to have been committed on or ab6ut November 17,2011 in Kaufman
county, Kaufman, Texas. the court gave riotice of; intent to in:L
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enhance the punishment. A trial by jury was ~~ryducted on Oci.
29 1 2012 and Relator was found guilty and sentenced to Lif~
I in
the Texas Department Of Criminal justice. Relator would. file
an Appeal on March, 2012 and appeal would be Affirmed on November
19 1 2013 Cause # 05-12-01520-CR. R~lator wotild file a P.D~R. on
December 31,~013 the same was refused on ~arch 12,2014. Relator
would file his.original Writ of Habeas corpus in j"une2014 and
the Respondent would issue an order DESIGNATING ISSUES BASED ON
THERE BEING. CONTROVERTED AND PREVIOUSLY UNRESOLVED FACTS,
.>, . In said order the Hon. Judge Chi tty would order Affidavits
from both the trial Attorney and Appellate Attorney. The order
handed down on July 30,2014 gave the attornies until September
1,2014 to file said affi0avit and present a ~opy to the counsel
for the State. the State in the same ordei was given no more than
3~ days to file a reply brief in responce to the Relator's
allegations including documentary evidence to support their finding.
IV. ISSUES PRESENTED
Relator will seek to prove by the record that the said order
has b~en violated by the State as well as the Hon. Judge, the
record has fallen silent after the said affidavit was filed by
both Attornies,the Court has failed to take any action.
2.
V. ISSUE ONE
The DISTRICT COURT, Respondent, Abused it's discretion ~-=
by failing to perform a basic ministerial duty by.-pJ:O-f::.adhearing to
the order of the court and. violating the appellate procedure.
Argument and Authorities
Mandamus is an extraordinary writ that should be issued only
when the Trial court has clearly abused it's di~cretion, or failed
to perform a ministerial act or duty' and no adequate remedy of
law exists. see:Walker v. Packer,827 s.w. 2d 833 (Tex.l992).
In addition, a writ of mandamus will issue to correct a clear
abuse of discretion. see: In re Nitla S.A.,925 s.w.3d 419,422
(Tex.2002); see also Liberty Nat'l Fire Ins. Co. v. Akin,927
S.W.2d 627,629 (Tex.l996}; accord Walker, 827 S.W.2d at 839,
A t~ial court application of leg~l principle is reviewed for
abuse of discretion seperately from it's resolution of factual
disputes.
·Abuse of Discretion
The Respdndent committed an error by not up holding order of the
court or follow the rules set out in the Rules of Appellate
procedure. According to * Rules of Appellate Procedure,73.5;
"Within 180 days from the date of reciept of the appli~ation by
the State, the convicting court shall resolve any issue that the
court has timeiy designated for rerolution, Any motion for an
Extention of time ...
must .be filed in theCourt Of Criminal Appeals before the 18lday
3.
(
·Abuse of Discretion cont's
The record supports the fact that. Respondent is in violation of
rule 73.5 of Rules of Appellate Procedure, in that there has
been no reply from the State nor a Reccomendation by the ~espondenf
in well over THREE HUNDRED, SIXT FIVE DAYS,(365).
The Respondent has failed to respond to any objection made
by the R~lator over the past year. The Relator has written letters
to the Respondent as well as the District Clerk with out a
response. the record itself will show that the Respondent never
filed for an Extention of time by the dead line of the 18lday and
based on this Violation this writ of mandamus should be granted.
·Consequential Damages
. ,. The Texas Constitution demands that i.t's habeas process be
"speedy and Effe~tual", Texas Constitution Artcle I § 12.
Through the failure of basic judicial ministerial acts the
Respondent has caused the habeas process to be non-effectual.
The record will prove that Relator's constitutional rights has
been violated through every stage of this case, such as:
Respondent failure to answer Relator's Motion for New Trail.
Respondent failed to hold a Faretta hearing.
Respondent failure to appoint requested counsel.
Respondent failure to order a Competency hearing.
Respondent failure to answer any objections.
The record will show that Relator has no adeqriate way to vind-
icate the harm caused to him without Mandamus.
4.
i
VI. CONCLUSION
In E~ Parte Harleston,43l S.W.3d 67(Tex. Crim App. 2014)
The court held that when receiving a habeas corpus finding
of fact and conclusion of Law, We defer to those findings and con-
elusions if they are supported by the record, We refer to those
findings by the record because habeas court is the original
fact finder and in the best position to evaluate the credibility;
However our deference is nor a Rubber Stamp and We can envbke
our authority as the ultimate fact finder ..... when it's independent
review of the record reveals that the trial Judge's findings
and conclusion are not support~d by the record.
In this case the Relator petitions the Court to review the record
against the exihibits presented here in.
May Mandamus be Granted with out delay out of Fairness and
repsect for the Rudimetary demands for Justice .
.UNSWORN DECLARATION
I, DBRt'2o/J '£. 6oRLfod T. D.c. J. # I r,J~;J.-2/.t/o , do hereby declare
under penalty of perjury that the facts here in are true and
correct to the best of my knowledge.
EXHIBITS
1. JUDGEMENT OF CONVICTION
2.0RDER DESIGNATING ISSUES
3.LETTER TO COURT OF CRIMINAL APPEALS
4.AFFIDAVIT IN FACK (DENNIS JONES)
S.AFFIDAVIT APPOINTED ATTORNEY
CERTIFICATE OF SERVICE: This is to certify that on, Odobe!c
~Nc/ ,2015, a true and correct copy of the above and foregoing
writ of mandamus was placed in the u.s.mail to The Court Of criminal
Appeals atP.O. BOX12308, Capitol Station, Austin, Tx.787ll
Pro' Se'
COUNT
CASE No. 30600-422 '' ·"··
. FILE:D fOR RECORO
THE STATE OF TEXAS ~/ · § IN THE 422* &iStMMaiOitN t Y
/'t § . 'T£~~
v. /~"ibt §
§
OF
DARRYL RAYN. §
§
STATE ID No.: TX-0::., §
JUDGMENT OF CONVICTION BY JUR
Da~e Judgment
Judge Presiding: HON. B. Michael Chitty Entered: 10/30/2012
Attorney for
Attorney for State: Mike Mclelland Defendant: ProSe
Offense for which Defendant Convicted:
EVADING ARREST DETENTION WNEH
Charging Instrument: Statute for Offense:
Indictment §38.04
Date of Offense:
11/17/2011
Degree of Offense: Plea to Offense:
3rd Degree Felony Not Guilty
Verdict of Jurv: Findings on Deadly Weapon:
Guilty was not
Plea to 1st Enhancement Plea to 2na Enhancement/Habitual
Paragraph: Not True Paragraph: Not True
Findings on 1'1 Enhancement Findings on 2na Enhancement/Habitual
Paragraph: True Paragraph: True
Punishe·d Assessed by: Date Sentence Imposed: Date Sentence to Commence:
Jury 10/30/2012 10/30/2012
Punishment and Place of
Confinement: LIFE in TDCJ - ID
THIS SENTENCE SHALL RUN CONCURRENTLY.
. ~ '""...· •'
D SENTENCE OF CONFINEMEJ4T SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR YEARS.
Fine: Court Costs: Restitution: Restitution Payable to:
$-0- $329.00 $-0- n/a
[X] Attachment A, Order to Withdraw Funds, is Incorporated Into this judgment and made a part hereof.
Sex Offender Registration Requirements do not apply to the Defendant. Tex. CooE CRIM. PRoc. chapter 62.
The age of the victim at the time of the offense was n/a.
If Defendant is to serve sentence in TDCJ. enter incarceration periods in chronological order.
From 11/17/11 to 11/18/11 From 3/27/12 to 3/27/12 4/5/12 to 4/10/12
5/19/12 to 10/30/12
Time If Defendant is to serve sentence in county jail or Is given credit toward fine and costs. enter days credited below.
Credited: DAYS NOTES: N/A
All pertinent information, names and assessments indicated above are Incorporated Into the language of the judgment below
by reference.
This cause was called for trial in Kaufman County, Texas. The State appeared by her District Attorney.
Counsel/ Waiver of Counsel (select one)
[ ] Defendant appeared in person with Counsel. 1
[X] Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing In open court.
It appeared to·the Court that Defendant was mentally competent and had pleaded as shown above to the charging instrument.
Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENT was read to the jury, and
Defendant entered a plea ·to the charged offense. The Court received the plea and entered it of record.
The jury heard the evidence submitted and argument of counsel. The Court charged the jury as to its duty to determine the
guilt or innocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court, the jury ~elivered its
verdict in the presence of Defendant and defense counsel, if any.
The Court received the verdict and ORDERED it entered upon the minutes of the Court.
Punishment Assessed by Jurv I Court I No election (select one)
83
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30600A-422
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IN TH~42~4'JUi2jCIAL< 5
EX PARTE . DEFENDANT'S -< w
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EXHIB\1 f). DISTRICT COURT OF
DARRYLRAYNARDGORDON ~ .. ;~~,-
----=------ I ~ '
·KAUFMAN COU~_JTY,. TEXAS ..~
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ORDER DESIGNATING ISSUES AND GRANTING THE STATE -~,.,.. ·
LEAVE TO FILE AN AMENDED ANSWER .
..., ·......... ~
AFTER FURTHER EVll)F~~f.CEJS~GATHE.R_EJ}
Pursuant to article 11.07(3)(d) ofthe Texas Code ofCriminal'Procedure,...th~~ourt
-·~ .
finds that from the application for writ of habeas c9rpus filed by the applicant,- there exist ,
controverted and previously unresolved fact issues that are material to the legality of the
applicant's confinement. The Court further finds and designates that these issues. of facf
. ,I • 1 ~ '• 1 r ' •
to be resolved concern:
1. Whether his waiver of counsel was involuntary because he was incompetent
to stand trial; and
' .
2. Whether the applicant was denied the effective assistance of trial and
appellate counsel because trial and appellate counsel failed to file motions
to determine applicant's competence and because appellate counsel failed to
~-. assert as a point of error trial cour.sr l's failure to contest competene<~.
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,_ ., Therefore, pursuant to article 11.07(~ J\ d), jthc Court will resolve the above-citffi1:::... · -.
-~-~· ' ' ·~:~~ ~-: ' . '
issues and enter findings of fact. To aid the Court in resolving the above-cited issues, the\~.~:- . , .
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Court orders that the app-licant's appointed counsel, Michael
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Harris and Dennis Jones,
prepare and file affidavits responding to the issues set out above. Mr. Harris and Judge
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Jones are ordered to file such affidavits on or before September 1, 2014, and to tender
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copies of their affidavits to counsel for the State. The State shall be pennitted to file an
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amended answer m response to the applicant's allegations, including documentary
~~ evidence in support thereof, and such amended answer shall be filed by the State at a
reasonable time not later than 30 days after defense cpunsel file their affidavits with this
. Court.
The Clerk of the Court is therefore ORDERED to transmit a copy of this order
designating issues to the . Court of Criminal ~ppeals. The Clerk of the Court is
~. -·-·- ~-·· ·:-.r::-....-:.::. ... >~ .!._, \,...,. . ··'· ··~...,. ,, . • , . . -~·. ~ '
ORI)ERED NOT to tnins[llit at this time any other· documents in the above-styled case to
the Court of Criminal Appeals until further ordered by this Court. The Clerk of the Court
is further ORDERED to transmit a copy of this order to applicant, to attorney Michael
Harris, to Judge Dennis Jones, and to the Kaufman County Criminal District Attorney's
Office.
. . Jv
. SIGNED thisJo day of July 2014.
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Rhonda Hughey
~[:iH~· hir District Clerk
County Courthouse
3 100 W Mulberry St.
Kaufman, Texas 75142
July 3 L 2014 972-932..0279
Kaufman-County·
Court of Criminal Appeals
12308 Capitol Station
Supreme Court Building
•·
":fl·· .h.·..:~!~r., Tex~~- 78711 . -'. ~ ·--..._,.,...--..-~---. ----:-'-····-~
R.E: Cause No. 30600A-422
Ex Parte: Darryl Raynard Gordon
Dear Clerk,
Enclosed please find the Clerk's Record for Writ of Habeas Corpus to be filed in your
C<;)Urt regarding the captioned cause.
fl."
i If you have any questions. please contact our office.
! ... .._...,_
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Rhonda Hughey
District Clerk
Kaufman County, Texas
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Cc: Erleigh Norville Wiley, District Attorney
Darryl Raynard Gordon, Applicant
Michael Harris. Attorney
Judge Dennis Jones
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30600A 422
Ex Parte In the 422nd Di~rict Court
~ • • • • •• .• 1 -' -
Darryl Raynard Gordon Kaufman County Texas
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. is .Denn:s. Jor.es and I :am a licensed attorney in\ the.; . " o~
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Texas. I am currently the presiding judge in the County Co:Qrt at La~# 1·mmunication was by correspondence. I received· ?PProximately/ at least
·: •:eight (8} letters from Mr. Gordon _and .I responded about the same.
-·~ou~in9·.rDY face to fac~ ,mee.ttn.gs, I thought and believed.. Mr. Gordon to be
~-,.·-·-~~~--.. ·.. ~e-~s?~a'~ie, c.o~~~~iCJ.~i~~~~~~;~~;it~\~~. ~-:' J_~_iidg_.:n~,<;?.t hav~.·
.., any trouble a.~
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. \ · him to be abov~~aver~~e in.t~1Jig.en~~actuqUy h~ wa_s pretty sharp .. The ·
.·:· letters that L-received from.c-hi·m were the same (i.e. focused,
· understarid~~le, dilig~nb. ·· N,ever in my dur~tioh of his representation did I
• . ·4 .
ever feel that Mr. Gordon w~s incompetent.: From my read_ing of the
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.,stater,-tent of facts, I be!ieved th(:~t: Mr: Gordon wa~ competent. I did not ' '"" )
" .; assert as a point of error the trial counsel's failure to contest competence
., becaus~ I did hot -believe the evidence supported such a point of error. I
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did not ever file a motion to determine competence of Mr. Gordon because
I did not feel that he was incompetent.
This affidavit is true and correct to the best of my knowledge.
Dennis Jones
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---- II
_) CAUSE NO. 30600A-422
201~ AUG -7 AM 8: 58
)( INTHE422ND
EX PARTE )(
)(
DARRYL RAYNARD GORDON )( ..... il1='PUTY
,,.
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FORMER COURT APPOINTED A'ITORNEY'S AFFIDAviT
COMES NOW MICHAEL RAY HARRIS, former. court appointed attorney for the
applicant Darryl Raynard Gordon in the above-referenr-.ed case who files this· affidavit in
response to the court order issued on July 30, 2014 to hdp resolve the following issues of fa<..-t:
ISSUE 1. · Whether the applicant's waiver of counsel was involwttary· because he was
incompetent to stand trial; and
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ISSUE 2. Whether the applicanf~as denied the effective assistance of trial and appellate
counsel because trial and appellate counsel failed· to assert as a point of error trial counsel's
failure to contest competence.
1. Kaufman County originally appointed.$-e affiant to represent Darryl Raynard Gordon for ..
· the charge of Unlawful Use of,i;i_Motor Vehicle. The affiant immediately suspected Darryl
Raynard Qordon was .an Antisoeiat Personality Type. The symptoms of this disorder are:
···· .. · irresponsible, de~itful. poor regard for rights of others, lack of empathy and remorse, violates
social norms, and exploitive. The Darryl RAynard Gordon's behavior since the time of the.
original appointment continues to support a diagnosis of Antifiocial Penonality Disorder.
The affiant does not believe an Antisocial P~nality Disorder supports a claim of incompetence
to stand trial and/or voluntarily waiver of counseL
..... , .-...,.·
Vehicle while working as a Confidential Informant for the Terrell Police Department lhe affiant
persuaded Assistant District AttOrney Shelton Gibbs to release the afftant on a personal
recognizance bond.. The affiant subsequently got arrested by the same police officer he worked
for as a confidential informant for an Armed Robbery that affiant heard Darryl Raynard Gtirdon
later plead guilty to.
3. The Kaufinan County District Attorney's office reassigned the affiant's cases to Mark
Hasse who told the affiant that there were four possible felony charges against the affiant with
two prior felony convictions resulting in penitentiary sentences. This meant Darryl Raynard
Gordon faced possible punishment of 25 to 99 years iri the penitentiacy under the Habitual
Offender sectionS of the Texas Penal Code. The affiant sent a letter to Darryl Raynard Gordon
that Mark Hasse planned to keep taking his cases to trial until getting a long prison sentence..
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4. Darryl Raynard Gordon claimed he was entitled to ..a lawyer who believes in me." The
affiant told Darryl Raynard Gordon his job as a court appointed lawyer was to tell defendants
what the needed to hear-not what they wanted to hear. Darryl Raynard Gordon proceeded to be
as difficult as possible for the affiant. The affiant told Darryl Raynard Gordon he was free to hire
another attorney to take over the case. Yet the affiant was not going to merely pass a problem
client onto another court appointed lawyer. The affiant also tolli Darryl Raynard Gordon he had \\
the right to represent himself.
5. The affiant filed a motion notifying the trial court of the problems between the affiant and
Darryl Raynard Gordon. The affiant specifically remembers the trial court judge on the record
telling Darryl Raynard Gordon that he had been to the penitentiary twice with the assistance of
counsel and ask~ '"What n;takes you think you're ~o~g to do any better without ~ne'r' Darryl
Raynard Gordon insisted on representing himself and the trial court judge fonnally relieved the
affiant of his duties as court appointed lawyer.
6. Darryl Raynard Gordon subsequently filed a grievance against the affiant claiming the
affiant acted in "an unprofessional manner''. The State Bar Grievance Committee chose not to
pursue the claim. Darryl Raynard Gordon appealed the ruling that the affiant did not violate the
RuJes of Professional Conduct. The Board of Disciplinary Appeals affinned the committee
ruling.
Texas State Bar No. 24003768
6051 Clearwater Ranch Rd.
Wtlls Point, Tx 75169
Td: 972--563--3205
Fax:972-563-3208
info@michaelrayharris.com