Simon, Thomas Allen

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WR-83,783-01,02 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/25/2015 5:14:13 PM Accepted 8/26/2015 8:19:13 AM ABEL ACOSTA CLERK DOCKET NO. RECEIVED COURT OF CRIMINAL APPEALS IN THE 8/26/2015 ABEL ACOSTA, CLERK COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS IN RE: THOMAS ALLEN SIMON, Relator PETITION FOR WRIT OF MANDAMUS AND FOR WRIT OF PROHIBITION Trial Cause No. 42908 th In the 424 Judicial District Court of Burnet County, Texas Honorable Evan C. Stubbs, Presiding Tracy D. Cluck L. T. "Butch" Bradt Texas Bar No. 00787254 Texas Bar No. 02841600 12600 Hill Country Blvd., Ste. R-275 14015 Southwest Frwy., Suite 4 Austin, Texas 78738 Sugar Land, Texas 77478 Tel: (512)329-2615 Tel: (281)201-0700 Fax: (512) 329-2604 Fax: (281) 201-1202 tracy(S)tracyclucklawyer.com ltbradt@flash.net Attorney for Relator, Attorney for Relator, Thomas Allen Simon Thomas Allen Simon IDENTITIES OF PARTIES AND COUNSEL Relator: Thomas Allen Simon Counsel for Relator: Tracy D. Cluck #00787254 12600 Hill Country Blvd., Suite R-275 Austin, Texas 78738 Tel: (512)329-2615 Fax: (512) 329-2604 tracy (Stracyclucklawyer.com L.T. "Butch" Bradt #02841600 14015 Southwest Freeway, Suite 4 Sugar Land, Texas 77478 Tel: (281) 201-0700 Fax: (281) 201-1202 ltoadt@flash.net Respondent: Honorable Evan C. Stubbs 424th Judicial District Court Burnet County Annex North 1701E. Polk Street, Ste. 74 Burnet, Texas 78611 Tel: (512)756-5438 Fax: (512) 756-8478 424distjudge@gmail.com Real Parties In Interest: State of Texas Counsel for the State of Texas: Honorable Wiley B. "Sonny" McAfee, District Attorney Gary Bunyard, Ass't District Attorney Burnet County Annex North 1701E. Polk Street, Ste. 24 Burnet, Texas 78611 Tel: (512)756-7609 Fax: (512) 756 8572 Wiley 1450 (Syahoo.com g.bunyard(5>co.llano.tx.us Gary Prust 1607 Nueces Street Austin, Texas 78701 Tel: (512)469-0092 Fax: (512) 469-9102 gary(5)prustlaw.com TABLE OF CONTENTS Page IDENTITIES OF PARTIES AND COUNSEL 2 TABLE OF CONTENTS 4 TABLE OF AUTHORITIES 6 STATEMENT OF THE CASE 8 STATEMENT OF JURISDICTION 9 ISSUES PRESENTED 9 ISSUE NO. ONE: Does the power of the trial court to appoint counsel to represent indigent defendants carry with it the concomitant power to remove counsel at the judge's discretionary whim, especially when that removal is accomplished without notice that comports with Due Process? If not, will mandamus issue to cause Respondent to set aside his order substituting Gary Prust as appointed counsel to represent Relator? 9 ISSUE NO. TWO: When a defendant is seeking mandamus relief to set aside an order appointing new counsel, will a writ of prohibition issue to stay the proceedings in the trial court to thereby prevent interference with the jurisdiction of the Court of Appeals? 10 STATEMENT OF FACTS 10 SUMMARY OF THE ARGUMENT 13 ARGUMENT AND AUTHORITY 13 ISSUE NO. ONE RESTATED: The power of the trial court to appoint counsel to represent indigent defendants does not carry with it the concomitant power to 4 remove counsel at the judge's discretionary whim, especially without proper notice. Mandamus should issue to cause the order removing counsel to be vacated 13 Entitlement to Writ of Mandamus 15 ISSUE NO. TWO RESTATED: A Writ of Prohibition should issue to prohibit Respondent from holding any hearings on the case until such time as the application for writ of mandamus shall have been determined 18 Entitlement to Writ of Prohibition 18 CONCLUSION & PRAYER 20 CERTIFICATE OF SERVICE 21 CERTIFICATE OF WORD COUNT 22 TRAP RULE 52.7(a)(2) STATEMENT 22 APPENDIX 24 TABLE OF AUTHORITIES State Cases Page Ayers v. Canales, 790 S.W.2d 554 (Tex. 1990) 16,17 Bowenv. Carnes, 343 S.W.3d 805 (Tex.Crim.App. 2011) 17 Buntion v. Harmon, 827 S.W.3d 945 (Tex.Crim.App. 1992) 17 DeLeon v. Aguilar, 111 S.W.3d 1 (Tex.Crim.App. 2004) (orig. proceeding) 19 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) 16 Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987) 16, 17 Huie v. DeSahzo, 922 S.W.2d 920 (Tex. 1996) 16,16 Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941 (Tex.App.—Dallas 1982, orig. proceeding) 19 InreKuntz, 124 S.W.3d 179 (Tex. 2003) 16 In re State ex rel. Weeks, 391 S.W.3d 117 (Tex.Crim.App. 2013) (orig. proceeding) 19 Jampolev. Touchy, 673 S.W.2d 569 (Tex. 1984) 16 Mathews v. Eldridge, 424 U.S. 319(1976) 14, 15 Padilla v. McDaniel, 122 S.W.3d 805 (Tex.Crim.App. 2003) (orig. proceeding) (per curiam) 15 Simon v. Levario, 306 S.W.3d 318 (Tex.Crim.App. 2009) (orig. proceeding) 19 6 Stearns v. Clinton, 780 S.W.2d 216 (Tex.Crim.App. 1989) 15, 17 Stotts v. Wisser, 894 S.W.2d 366 (Tex.Crim.App. 1995) 17 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) 16 West v. Solito, 563 S.W.2d 240 (Tex. 1978) 17 State Statutes Art. V, § 1, Texas Constitution 9 Art. 1, §10, Texas Constitution 9, 15 U. S. Constitution Amend. V, U.S. Constitution 9, 15 Amend. VI, U.S. Constitution 9, 15 Amend. XIV, U.S. Constitution 9, 14, 15,20 TO THE HONORABLE COURT OF CRIMNAL APPEALS: Relator, Thomas Allen Simon, shows: STATEMENT OF THE CASE The underlying suit (Cause No. 42908 in the 424th Judicial District Court of Burnet County, Texas) is an indictment alleging two counts of aggravated sexual assault and one count of aggravated assault. On April 8, 2014, Tracy D. Cluck was appointed to represent Relator in his then un-indicted felony cases in Burnet County. Relator is incarcerated in the Burnet County Jail pending trial. This case is set for hearing on pre-trial motions on August 27, 2015 and for jury trial on September 14, 2015. Relator, by and through his attorney, Tracy D. Cluck, filed ex parte motions on July 31, 2015 seeking funds for a medical expert and additional funds for investigation services. Respondent set these matters for hearing on August 7, 2015 and sent notice to Tracy D. Cluck to appear. The hearing was held ex parte in a closed courtroom, with Relator present, and a record was made. Although Relator had not expressed any dissatisfaction with Cluck or even any desire to have Cluck removed from his case, Respondent sua sponte ordered that 8 Cluck be immediately removed as attorney for Relator. Later that day, Respondent signed an order substituting Gary Prust as attorney for Relator. The case is now set on the trial court's docket for pre-trial hearing and jury trial as set out above. STATEMENT OF JURISDICTION This Petition is brought pursuant to, and this Court has jurisdiction of this Petition, pursuant to Article V, §1 of the Texas Constitution. This Petition is also brought under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and under Art. 1, § 10 of the Texas Constitution. ISSUES PRESENTED ISSUE NO. ONE: Does the power of the trial court to appoint counsel to represent indigent defendants carry with it the concomitant power to remove counsel at the judge's discretionary whim, especially when that removal is accomplished without notice that comports with Due Process? If not, will 9 mandamus issue to cause Respondent to set aside his order substituting Gary Prust as appointed counsel to represent Relator? ISSUE NO. TWO: When a defendant is seeking mandamus relief to set aside an order appointing new counsel, will a writ or prohibition issue to stay proceedings in the trial court to thereby prevent interference with the jurisdiction of the Court of Appeals? STATEMENT OF FACTS Relator was indicted June 3, 2014 for two counts of aggravated sexual assault and one count of aggravated assault. A true copy of that indictment is attached in the Appendix hereto, marked as Exhibit 1, and incorporated by reference for all purposes. Relator denies the allegations of that indictment. On April 8, 2014 Tracy D. Cluck was appointed to represent Relator with respect to his then un-indicted felony cases in Burnet County (subsequently indicted as Cause No. 42908 in the 424th District Court of Burnet County, Texas). A true and correct copy of the e-mail notice of appointment to counsel is attached 10 in the Appendix hereto, marked as Exhibit 2, and incorporated by reference for all purposes. On July 31, 2015 Relator, by and through his attorney Tracy D. Cluck, filed ex parte motions seeking funds for a medical expert and additional funds for investigative services. On August 3, 2015 counsel received an email notice from the court notifying him that Respondent had set the motions for hearing on August 7, 2015. A true and correct copy of the e-mail notice of this hearing and the docket sheet is attached in the Appendix hereto, marked as Exhibit 3, and incorporated by reference for all purposes. There was no notice that the Respondent was even going to consider removing counsel from the case. Id. On August 7, 2015 the court held an ex parte hearing in a closed courtroom with Relator present. A record of that hearing was made by the official court reporter for the 424th District Court, Jennifer M. Fest. On August 7, 2015, at the ex parte hearing on Relator's ex parte motion, Respondent sua sponte removed Tracy D. Cluck as Relator's attorney. Later that day Respondent appointed Gary Prust to represent Relator. A true and correct 11 copy of that order is attached in the Appendix hereto, marked as Exhibit 4, and incorporated by reference for all purposes. Relator's case is set for hearing on pre- trial motions on August 27, 2015 at 9:00 a.m. and for jury trial on September 2015 at 8:30 a.m. A true and correct copy of the order setting these matters on the court's docket is attached in the Appendix hereto, marked as Exhibit 5, and incorporated by reference for all purposes. Relator has not requested new counsel and, indeed, wishes for Tracy D. Cluck to continue to represent him. See Relator's Affidavit (Unsworn Declaration), which is attached in the Appendix hereto, marked as Exhibit 6, and incorporated by reference for all purposes. Tracy D. Cluck did not request to be removed as attorney for Relator nor did he receive notice that the trial court would hear the issue of substitution of counsel at the hearing on Relator's ex parte motions held on August 7, 2015. See Declaration of Tracy D. Cluck, attached in the Appendix hereto, marked as Exhibit 7, and incorporated by reference for all purposes. 12 Relator sought mandamus relief from the Third Court of Appeals, which denied relief. See Appendix 9 and 10, attached hereto and incorporated by reference for all purposes. The instant application results. SUMMARY OF THE ARGUMENT A trial judge acts without reference to guiding authority when he removes appointed counsel from representing an indigent defendant and appoints new counsel. Mandamus will issue to require the trial judge to set aside that order. Mandamus relief is available to address this abuse of discretion as Relator has no adequate remedy by appeal and is entitled to mandamus relief. A writ of prohibition should issue to prohibit Respondent from taking any further action on the underlying case until this appellate proceeding is concluded. ARGUMENT AND AUTHORITY ISSUE NO. ONE RESTATED: The power of the trial court to appoint counsel to represent indigent defendants does not carry with it the 13 concomitant power to remove counsel at the judge's discretionary whim, especially without proper notice. Mandamus should issue to cause the order removing counsel to be vacated. Relator and his counsel received no notice that Respondent was going to consider removing counsel from the case. This violated Relator's Due Process rights because "The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Having no notice of Respondent's intention to remove counsel and forcing counsel to "shoot from the hip" does not comport with the requirements of Due Process. As shown by his Declaration, Relator is not dissatisfied with his attorney and has not requested new counsel to be appointed. The notice that counsel received from the court does not indicate, in any fashion, that Respondent was going to consider, much less act on, removing Relator's counsel. As no request for new counsel was made and since the notice of the hearing on Relator's ex parte motions does not indicate that Respondent would consider 14 removing counsel, it is clear that Respondent issued the order complained of sua sponte and in violation of Relator's Due Process rights. Id. Relator's right to counsel implicates his rights under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. It also implicates his rights under Art. 1, §10 of the Texas Constitution. This Honorable Court has held "[T]hat the power of the trial court to appoint counsel to represent indigent defendants does not carry with it the concomitant power to remove counsel at his discretionary whim." Stearns v. Clinton, 780 S.W.2d 216, 223 (Tex.Crim.App. 1989). But that is what Respondent did. Entitlement to Writ of Mandamus This Court has mandamus jurisdiction in criminal-law matters. Padilla v. McDaniel, 122 S.W.3d 805, 807 (Tex.Crim.App. 2003)(orig. proceeding)(/?er curiam). 15 Mandamus is an extraordinary remedy. Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law. Mandamus relief is available if the trial court violates a duty imposed by law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A writ of mandamus will issue to correct trial court actions when there has been a clear abuse of discretion, particularly where the remedy by appeal is inadequate. In re Kuntz, 124 S.W.3d 179, 180 (Tex. 2003); Ayers v. Canales, 790 S.W.2d 554, 556 (Tex. 1990); Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987); West v. Solito, 563 S.W.2d 240, 244 (Tex. 1978); Walker, 827 S.W.2d at 843; Jampole v. Touchy, 613 S.W.2d 569, 572 (Tex. 1984). A trial court abuses its discretion if it acts without reference to any guiding rules and principles or if the trial court's act is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). "A trial court has no discretion in determining what the law is or applying the law to the facts." Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996)(citing Walker, 827 S.W.2d at 840). The "trial court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion." Id. A writ of mandamus will issue to correct trial court actions when there has been a clear abuse of discretion, particularly where the remedy by appeal is 16 inadequate. Ayers v. Canales, 790 S.W.2d at 556; Garcia v. Peeples, 734 S.W.2d at 345; West v. Solito, 563 S.W.2d at 244. The Court of Criminal Appeals has held "[t]hat the power of the trial court to appoint counsel to represent indigent defendants does not carry with it the concomitant power to remove counsel at his discretionary whim." Stearns v. Clinton, 780 S.W.2d 216, 223 (Tex.Crim.App. 1989). A trial court cannot remove appointed counsel merely because he wants a different attorney to handle the case based on his personal feelings and preferences and mandamus is the appropriate remedy. Id; Buntion v. Harmon, 827 S.W.2d 945 (Tex.Crim.App. 1992); Stotts v. Wisser, 894 S.W.2d 366 (Tex.Crim.App. 1995); see Bowen v. Carnes, 843 S.W.3d 805 (Tex.Crim.App. 2011). But that is exactly what the Respondent has done in the case at bar. He has violated the law as laid down by this Court in Stearns v. Clinton. 780 S.W.2d 216. And in so doing, he has acted directly in contravention of controlling precedent to interfere with the attorney-client relationship between Relator and Tracy D. Cluck. Mandamus should issue to set aside Respondent's order substituting Gary Prust for Tracy D. Cluck as Relator's attorney. 17 ISSUE NO. TWO RESTATED: A Writ of Prohibition should issue to prohibit Respondent from holding any hearings on the case until such time as the application for writ of mandamus shall have been determined. Respondent has set the case on the trial court's docket on August 27, 2015 for hearing on Relator's pre-trial motions and on September 14, 2015 for jury trial. As it stands, Tracy D. Cluck has been removed as Relator's attorney and has no right to represent Relator at the pre-trial hearing or jury trial. Relator does not know whether this Court can rule on this application before this hearing and/or the jury trial occur. Entitlement to Writ of Prohibition The writ of prohibition is an extraordinary judicial writ that may be issued by a Court of Appeals, as a court of superior jurisdiction, directed to a court of inferior jurisdiction. Its purpose may be to prevent an inferior tribunal from exercising a jurisdiction that it has no lawful right to exercise. The writ of prohibition as used in Texas has three principal functions: (1) preventing interference with the higher courts in deciding a pending appeal; (2) preventing an 18 inferior court from entertaining suits which will re-litigate controversies which have already been settled by the issuing court; and (3) prohibiting a trial court's action when it affirmatively appears that the court lacks jurisdiction. Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941, 943 (Tex.App.—Dallas 1982, orig. proceeding). Mandamus and prohibition are available in a criminal proceeding if the relator shows that: (1) the act he seeks to compel or prohibit does not involve a discretionary or judicial decision; and (2) he has no adequate remedy at law to redress the harm that he alleges will ensue. Simon v. Levario, 306 S.W.3d 318 (Tex.Crim.App. 2009)(orig. proceeding); see also In re State ex rel. Weeks, 391 S.W.3d 117, 122-23 (Tex.Crim.App. 2013)(orig. proceeding); Deleon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App. 2004)(orig. procededing). The first prong requires the relator to show that he has a clear right to the relief sought, meaning that the facts and circumstances dictate only one rational decision under unequivocal, well-settled, and clearly controlling legal principles. Simon, 306 S.W.3d at 320. When a relator seeks extraordinary relief that amounts to the undoing of an accomplished judicial act, that relief is more in the nature of mandamus than prohibition. Id. at 320, n. 2. 19 Any attempt by Respondent to force the underlying case to hearings or to trial will interfere with this Court's jurisdiction and will deprive Relator of the right to have the impropriety of the challenged order removing Tracy D. Cluck as his attorney determined before he is subjected to hearings or trial hereunder. A writ of prohibition should issue to prevent the Respondent from taking any action to proceed to hold hearings or to proceed to trial on the indictment against respondent. CONCLUSION & PRAYER This Court should hold that Respondent abused his discretion when he removed Tracy D. Cluck as Relator's attorney, sua sponte and without notice that comported with the requirements of Due Process. This Court should further hold that a writ of prohibition is necessary to prevent the Respondent from holding hearings or from proceeding to trial on the indictment against Relator. This Court should thereafter issue its writs of mandamus and prohibition in conformity with 20 the allegations of this Petition and the Court's findings. This Court should grant Relator general relief. Respectfully submitted, TRACY D. CLUCK Tex. Bar No. 00787254 12600 Hill Country Blvd., Ste. R-275 Austin, Texas 78738 Tel: (512)329-2615 Fax: (512)329-2604 tracy@tracyclucklawyer.com L. T. "Butch" Bradt 14015 Southwest Freeway, Suite 4 Sugar Land, Texas 77478 Tel: (281)201-0700 Fax: (281)201-1202 ltbradt@flash.net ATTORNEYS FOR RELATOR THOMAS ALLEN SIMON CERTIFICATE OF SERVICE I, the undersigned attorney, in accordance with Rule 9.5, Tex.R.App.P., certify that a true and correct copy of the foregoing Petition was delivered on August 25, 2015, by e-mail, to: Honorable Evan Stubbs 424th Judicial District Court 21 1701 E.Polk St., Ste. 74 Burnet, Texas 78611 424distjudge@gmail.com Hon. Wiley B. "Sonny" McAfee 33rd & 424th Judicial District Attorney Gary Bunyard, Asst. Dist. Arty. 1701 E.Polk St., Ste. 24 Burnet, Texas 78611 Wiley 145 0@yahoo.com g.bunyard@co.llano.tx.us Gary Prust 1607 Nueces St. Austin, Texas 78701 gary@prustlaw.com TRACY D. CLUCK CERTIFICATE OF WORD COUNT I certify that the pertinent portion of this Petition for Writ of Mandamus and Writ of Prohibition is comprised of approximately 3481 words. TRACY D. CLUCK TRAP RULE 52.7(a)(2) STATEMENT A record of testimony was made of the ex parte hearing on Relator's ex parte motions by the official court reporter for the 424* District Court of Burnet County, Texas, Jennifer M. Fest, 208 Elm Lodge Dr., Kingsland, TX 78639, (512) 715-4238, 424reporter@dcourttexas.org. No exhibits were field at this hearing. However, this hearing contains testimony and discussion relevant to this original proceeding. Relator, by and through his attorney, Tracy D. Cluck, has requested the record of this hearing. A true and correct copy of the e-mail requesting the 22 record is attached in the Appendix hereto, marked as exhibit 8, and incorporated by reference for all purposes. This was a closed, ex parte hearing where confidential matters regarding Relators case were discussed with the court. No members of the general public or representative of the State were present or allowed to be present during this confidential hearing. This petition, once filed, is a public record, which must be served on the prosecuting attorney in Relator's criminal case. As such counsel is not able to attach the record from the hearing as required by Texas Rules of Appellate Procedure 52.7(a)(2) without breaching his ethical duty of confidentiality to Relator. Relator requests that the Court of Criminal Appeals order the court reporter to forthwith file a sealed record of the hearing held on August 7, 2015 with Court of Criminal Appeals in order to preserve lawyer/client privilege and the constitutional rights of Relator to due process. TRACY D. CLUCK 23 APPENDIX 24 f NO: ^fffiOft THE STATE OF TEXAS VS. THOMAS ALLEN SIMON COUNTI INDICTMENT: SEXUAL ASSAULT PENAL CODE: 22.0Il(aXl) DEGREE OF FELONY: SECOND DEGREE FELONY OFFENSE CODE: 11990001 BOND: COUNTn INDICTMENT: SEXUAL ASSAULT PENAL CODE: 22.01 l(aXl) DEGREE OF FELONY: SECOND DEGREE FELONY OFFENSE CODE: 11990001 BOND: /OO, ana, eo jQ COUNT i n INDICTMENT: AGG ASSAULT W/DEADLY WEAPON PENAL CODE: 22.02(a)(2) DEGREE OF FELONY: SECOND DEGREE FELONY OFFENSE CODE: 13150005 _ BOND: CONTROL #DA-14-00599 TRN#9192634370 D001;D002; A001 IN THE 424th JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS: THE GRAND JURY, for the County of Burnet, State of Texas, duly organized, impaneled and sworn as such at the January term, A.D. 2014, of the 424th Judicial District Court for said County, upon their oaths present in and to said court at said term that, THOMAS ALLEN SIMON, hereinafterreferredto as Defendant, on or about the 1* day of September, 2012 and before the presentment of this indictment, in the County of Burnet, and the State of Texas, did then and there intentionally or knowingly cause the Page 1 of 2 Exhibit penetration of the sexual organ of Rebecca Schailer by the Defendant's sexual organ, without the consent of Rebecca Schailer. COUNT II I AND IT IS FURTHER PRESENTED in and to said Court at said term, that on or about the I s day of September, 2012, and before the presentment of this indictment, in the County of Burnet, and the State of Texas, the Defendant did then and there intentionally or knowingly cause the penetration of the anus of Rebecca Schailer by the Defendant's sexual organ, without the consent of Rebecca Schailer. COUNT in AND IT IS FURTHER PRESENTED in and to said Court at said term, that on or about the 25th day of January, 2014, and before the presentment of this indictment, in the County of Burnet, and the State of Texas, the Defendant did then and there intentionally, knowingly, and recklessly cause bodily injury to Rebecca Schailer by striking her with his hand, and the Defendant did then and there use a deadly weapon, to-wit: the Defendant's hand, during the commission of said assault. AGAINST THE PEACE AND DIGNITY OF THE STATE FOREPERSON OF THE GRAND JURY toptofz Roxanne Nelson April 8, 2014 8:56 AM To: "Tim Cowart'" , "Tracy Cluck'" RE: Thomas Simon Mr. Cluck: Consider this notice that you have been substituted on Mr. Simon's felony case(s). From: Tim Cowart [mailto:jtcowart@timcowartlawofflce.com] Sent: Monday, April 07, 2014 10:40 PM To: Tracy Cluck Cc: Roxanne Nelson Subject: Re: Thomas Simon Judge Nelson, Please consider this as a request to substitute Tracy Cluck as appointed counsel for Mr. Simon's felony case(s). As you may see from the quoted email correspondence, Mr. Cluck is familiar with Mr. Simon's situation, having been his lawyer on misdemeanor charges since last year. Thank you for your courtesies and attention. Sincerely, Tim Cowart Attorney at Law Reply Email: itcowartfg)timcowartlawoffice.com Llano: (325)247-5486 Marble Falls: (830)798-1063 Facsimile: (866)418-4160 URL: http://www.timcowartlawoffice.com CONFIDENTIALITY NOTICE: The information in this email may be confidential and/or privileged. This email is intended to be reviewed by only the individual or organization named above. If you are not the intended recipient or an authorized representative of the intended recipient, you are hereby notified that any review, dissemination or copying of this email and its attachments, if any, or the information contained herein is prohibited. If you have received this email in error, please Exhibit Jennifer Bunting <424coordinator@dcourttexas.org> Augusts, 2015 223 PM To: Tracy Ciuck 42908; Thomas Simon Dear Mr. Cluck: Judge Stubbs wants a hearing on your motion for additional funds. I will not put on the docket what the hearing \s for since it \s ex-parte but the hearing will be set for August 7 at 9:00 a.m. Best Regards, Jennifer Bunting 424th Judicial District Court Coordinator 1701 E. Polk Burnet, TX 78611 512-756-5438 telephone 512-756-8478 facsimile Honorable Judge Evan Stubbs Presiding Exhibit In The 33ra/424(n Judicial District Court of Burnet County 8/4/2015 10:46 AM State of Texas Honorable Evan Stubbs Criminal Docket Friday, August 07, 2015 at 9:00 AM 12) 43758 - Status.H?arinfl.at..?;00 AM. SANDERS, TIMOTHY LARS Davis, Richard 512-756-5117 Warrant Status: Served Degree: Offense: Court Appointed (F2)MAN DEL CS PG 1A >=20<80AU 03/26/2015 I H J A I L 70 Bond Information: $35,000.00 2015-001 PATS BAIL BONDS Continuances: 0 30 Days 01/20/2015 - 02/18/2015 Last Court Date: 07/28/2015 Related Cases: Memo: Assessed Fees: Projected Crt Costs: Future Hearing Date: 08/27/2015; 09/14/2015 Age of Case: 182 $0.00 $284.00 Indictment Date: 02/03/2015 TOTAL: $284.00 13) 42908 - Status Hearing.at..9:00 AM SIMON, THOMAS ALLEN Cluck, Tracy D. 512-329-2615 Warrant Status: Served Degree: Offense: Court Appointed (F2)SEXUAL ASSAULT 06/06/2014 I N JAIL 511 (F2)SEXUAL ASSAULT (F2)AGG ASSAULT W/DEADLY WEAPON 421 Days as of 08-04-2015 06/10/2014-; 421 Days as of 08-04-2015 06/10/2014-; 511 Days as of 08-04-2015 Continuances: 0 03/12/2014 - Last Court Date: 06/10/2015 Related Cases: Memo: Assessed Fees: Projected Crt Costs: Future Hearing Date: 08/27/2015; 09/14/2015 Age of Case: 427 $50.00 $474.00 Indictment Date: 06/03/2014 TOTAL: $524.00 14) 44179 • Status .Hearing.at. .9:00 AM TAYLOR, CALVIN ERNEST JR. Def, Pub 512-234-3061 Warrant Status: Degree: Offense: Court Appointed (F1)MAN DEL CS PG 1 >=4G<200G 02/13/2015 IN JAIL 174 Continuances: 3 174 Days as of 08-04-2015 02/12/2015 • Last Court Date: 07/20/2015 Related Cases: Memo: Assessed Fees: Projected Crt Costs: Future Hearing Date: Age of Case: 63 $0.00 $284.00 Indictment Date: 06/02/2015 TOTAL: $284.00 (Rev. 12/01) CAUSE NO. 42908 THE STATE OF TEXAS § IN THE DISTRICT COURT OF v. § § BURNET COUNTY, TEXAS THOMAS ALLEN SIMON § ORDER ON DEFENDANT'S APPLICATION FOR APPOINTMENT OF ATTORNEY After considering the application for appointment of attorney fifed by the Defendant in the above entitled and numbered cause, and the evidence in support thereof and in opposition thereto, the Court finds that: D Defendant D is X is not D is not fully financially able to employ an attorney and that Defendant's application for appointment should be X GRANTED D DENIED. D Defendant has not properly completed the Application and the same is hereby DENIED based on: D Inadequate attempts to hire attorney when apparently able. • Inadequate attempts to borrow money. D See highlighted areas. • Has assets capable of obtaining loan - must submit at least two loan rejections. D Financial information is not credible - hearing is required before the judge. D Other . _ _ _ _ _ _ _ _ _ _ ___ It is accordingly ORDERED that: X • Public Defender's Office OR X GARY PRUST. Substituting for Tracv Cluck be and is hereby appointed to represent said Defendant. • The Court finds that Defendant is able to pay $ toward attorney fees and is hereby ORDERED to deposit such sum in the Attorney's Trust Account on or before D days from this date, or D at the rate of $ per (wk)(mo)(ea. Paycheck) until such sum is accumulated. Attorney shall immediately inform the Court if any payment is missed. If presently in jail, defendant is ORDERED to begin such payments beginning one week after release on bond. D Defendant employ an attorney for this proceeding and appear, with counsel, before this Court in County, Texas, on , 19 , at o'clock ,m. for the purpose of D Review of Application for Ct. appt'd Attorney D Arraignment, O Appearance of counsel, D Status Hearing D Other and, if failing to hire counsel, Defendant shall show cause for the failure to do so and may be held in contempt. Signed on August 7,2015. Judge Presiding l-fjifct (if checked) Following receipt is required, I hereby acknowledge receipt ol a copy of this ORDER, on k V C ^ X - L . *f 20 \7. JjA&»*J?h,£'7ll. -f ?\~ Defendant CC District Attorney Tracy Cluck Gary Prust (Prior Attorney-Client Relationship) Thomas Allen Simon Exhibit Cause No. 42908 SEXUAL ASSAULT; SEXUAL ASSAULT; AGG ASSAULT W/DEADLY WEAPON THE STATE OF TEXAS § IN THE 424TH DISTRICT COURT v. § OF THOMAS ALLEN SIMON § BURNET COUNTY, TEXAS NOTICE OF SETTING OR RESETTING The above entitled and numbered cause is hereby set/reset for the following date (s) and purpose (s). All times are 9:00 a.m. unless noted to the contrary. 28.01 Hearing August 27,2015 9:00 AM Plea Deadline Docket August 27, 2015 9:00 AM Jury Trial September 14,2015 8:30 AM GENERATED this 10th day of June, 2015 IN CRIMINAL CASES, FAILURE OF A DEFENDANT TO APPEAR FOR ANY SETTING ABOVE MAY RESULT IN FORFEITURE OF BOND AND ISSUANCE OF CAPIAS FOR ARREST. IN ALL CASES, FAILURE OF AN ATTORNEY TO APPEAR MAY RESULT IN APPROPRIATE SANCTIONS BEING IMPOSED UPON THE ATTORNEY. Original to the Court File. Copies of this notice have been sent to: District Attorney P.O. Box 725 Llano, TX 78643 TRACY D. CLUCK Exhibit Affidavit of Thomas Simon 1. My name is Thomas Simon. I am the Defendant in Cause No. 42908 in the 4241 Judicial District of Burnet County, Texas. 2. It is my desire that Tracy D. Cluck remain as my court appointed attorney in my criminal case. Affiant further sayeth not. lomas Simon -^-4.^ My name is Thomas Simon. My date of birth is j ? " " " ^ ^ ~£ 7 - ? , and my inmate identification number is 26546. I am presently incarcerated in the Burnet County Jail in Burnet, Burnet County, Texas 78611. I declare under penalty of perjury that the foregoing is true and correct. Executed on the / day of August, 2015. ftiomas Simon Exhibit 10 UNSWORN DECLARATION OF TRACY D. CLUCK Under 28 U.S.C. §1746 and Texas Civil Practices & Remedies Code §132.001 et seq., I declare under penalties of perjury that my name is Tracy D. Cluck. I am over the age of 18 years and competent to make this declaration. My date of birth is October 4, 1961. My address is 12600 Hill Country Blvd., Ste. R-275, Austin, Texas 78738. This document is not a lien required to be filed with a county clerk, an instrument concerning real or personal property required to be filed with a county clerk, or an oath of office or an oath required to be taken before a specified official other than a notary public. I have not been forced to sign this declaration. I declare under penalties of perjury that all assertions provided in this document are correct and true. The documents attached to the Petition for Writ of Mandamus and Writ of Prohibition are true and correct copies of the original documents, which are found among the papers of Cause No. 42908 in the Office of the District Clerk of Burnet County, Texas or from my files. I did not request to be removed as attorney for Thomas Allen Simon. I did not receive notice that the trial court would hear the issue of substitution of counsel at the hearing on Relator's ex parte motions held on August 7, 2015. Thomas Allen Simon did not ask that I be removed as his attorney prior to, during or after that hearing. The hearing was ex parte, in a closed courtroom, with only me, Relator (who was and is in the custody of the Burnet County Sheriff), Respondent, a Deputy Sheriff, a representative of the District Clerk's Office, and the official court reporter for the 424th Judicial District Court of Burnet County, Jennifer M. Fest (who made a record of the hearing). At that hearing the trial court sua sponte removed me immediately as Relator's attorney over my objection and did not rule on Relator's ex parte motions. Signed on August 9, 2015. TRACY D. Exhibit a Tracy Cluck August?. 2015 4:20 PF Try . I p n n i f p r M n f f m s n « < d ? d r p n o r t p r ( q ) r l r n i j r t t p y a c ; o r n > Simon Ex Parte Hearing 8/7/15, No. 42908, Burnet Hi Ms. Hoffman, I would like to obtain a transcript of the ex part hearing in State of Texas v. Thomas Simon, Cause No. 42908, In The 424th District Court of Burnet County, held this morning, 8/7/2015, in Burnet County, Texas. Please let me know the cost for this and I will pay you for the record of this hearing. You can provide this to me in electronic form. Also, please preserve all of your records of this hearing, including but not limited to, tape recordings, electronic files, and stenograph tapes. Thank you for your prompt attention to this matter. With kindest regards, Tracy D. Cluck (512) 329-2615 Austin/Bee Cave (512) 264-9997 San Antonio/Hill Country www.tracyclucklawyer.com Exhibit 03-15-00500- 64194 THIRD COURT OF APPEA AUSTIN. TEX 8/10/2015 10:31:31/ JEFFREY D. KY 03-15-00500-CV CLE DOCKET NO. IN THE COURT OF APPEALS FOR THE THIRD DISTRICT AUSTIN, TEXAS IN RE: THOMAS ALLEN SIMON Relator PETITION FOR WRIT OF MANDAMUS AND FOR WRIT OF PROHIBITION Trial Court Cause No. 42908 th In The 424 Judicial District of Burnet County, Texas Honorable Evan Stubbs, Presiding Tracy D. Cluck L. T. "Butch" Bradt Texas Bar No. 00787254 Texas Bar No. 02841600 12600 Hill Country Blvd., Ste. R-275 14015 Southwest Frwy., Suite 4 Austin, Texas 78738 Sugar Land, Texas 77478 Tel: (512)329-2615 Tel: (281)201-0700 Fax: (512)329-2604 Fax: (281)201-1202 tracy@tracyclucklawver.com ltbradt@flash.net Attorney for Relator Of Counsel to Relator Thomas Allen Simon Exhibit °i IDENTITIES OF PARTIES AND COUNSEL Relator: Thomas Allen Simon Counsel for Relator: Tracy D. Cluck Tex. Bar No. 00787254 12600 Hill Country Blvd., Ste. R-275 Austin, Texas 78738 Tel: (512)329-2615 Fax: (512)329-2604 tracy@tracyclucklawyer.com L. T. "Butch" Bradt Tex. Bar No. 02841600 14015 Southwest Freeway, Suite 4 Sugar Land, Texas 77478-3500 Tel: (281)201-0700 Fax: (281)201-1202 ltbradt@flash.net Respondent: Honorable Evan Stubbs 424th Judicial District Court Burnet County Courthouse Annex North 1701 E.Polk Street, Ste. 74 Burnet, Texas 78611 Tel: (512)756-5438 Fax:(512)756-8478 424distj udge@gmail.com Real Parties In Interest State of Texas Counsel for the State of Texas: Hon. Wiley B. "Sonny" McAfee 33rd & 424th Judicial District Attorney Burnet County Courthouse Annex North 1701 E.Polk Street, Ste. 24 Tel: (512)756-7609 Fax: (512)756-8572 wi 1 ey 14 5 0 @yahoo.com Gary Prust 1607 Nueces St Austin, Texas 78701 Tel: (512)469-0092 Fax: (512)469-9102 gary@prustlaw.com TABLE OF CONTENTS Page IDENTITIES OF PARTIES AND COUNSEL 2 TABLE OF CONTENTS 4 TABLE OF AUTHORITIES 6 STATEMENT OF THE CASE 8 STATEMENT OF JURISDICTION 9 ISSUES PRESENTED 9 ISSUE NO. ONE: Does the power of the trial court to appoint counsel to represent indigent defendants carry with it the concomitant power to remove counsel at the judge's discretionary whim? If not, will mandamus issue to cause Respondent to set aside his order substituting Gary Prust as appointed counsel to represent Relator?...9 ISSUE NO. TWO: When a defendant is seeking mandamus relief to set aside an order appointing new counsel, will a writ of prohibition issue to stay the proceedings in the trial court to thereby prevent interference with the jurisdiction of the Court of Appeals? 10 STATEMENT OF FACTS 10 SUMMARY OF THE ARGUMENT 12 ARGUMENT AND AUTHORITY 13 ISSUE NO. ONE RESTATED: The power of the trial court to appoint counsel to represent indigent defendants does not carry with it the concomitant power to remove counsel at the judge's discretionary whim and mandamus should issue to cause the order removing counsel to be vacated 13 Entitlement to Writ of Mandamus 14 ISSUE NO. TWO RESTATED: A Writ of Prohibition should issue to prohibit Respondent from holding any hearings on the case until such time as the application for writ of mandamus shall have been determined 16 Entitlement to Writ of Prohibition 17 CONCLUSION & PRAYER 19 CERTIFICATE OF SERVICE 20 CERTIFICATE OF WORD COUNT 21 TRAP RULE 52.7(a)(2) STATEMENT 21 APPENDIX 22 TABLE OF AUTHORITIES State Cases Page Ayersv. Candles, 790 S.W.2d 554 (Tex. 1990) 14, 15 Bowen v. Carnes, 343 S.W.3d 805 (Tex.Crim.App. 2011) 16 Buntion v. Harmon, 827 S.W.3d 945 (Tex.Crim.App. 1992) 16 DeLeon v. Aguilar, 127 S.W.3d 1 (Tex.Crim.App. 2004) (orig. proceeding) 18 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) 15 Garcia v. Peeples, 734 S.W.2d 343 (Tex. 1987) 15 Huie v. DeSahzo, 922 S.W.2d 920 (Tex. 1996) 15 Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941 (Tex.App.—Dallas 1982, orig. proceeding) 17 InreKuntz, 124 S.W.3d 179 (Tex. 2003) 14 In re State ex rel. Weeks, 391 S.W.3d 117 (Tex.Crim.App. 2013) (orig. proceeding) 18 Jampolev. Touchy, 673 S.W.2d 569 (Tex. 1984) 15 Padilla v. McDaniel, 122 S.W.3d 805 (Tex.Crim.App. 2003) (orig. proceeding) (per curiam) 14 Simon v. Levario, 306 S.W.3d 318 (Tex.Crim.App. 2009) (orig. proceeding) 18 Stearns v. Clinton, 780 S.W.2d 216 (Tex.Crim.App. 1989) 15, 16 Stotts v. Wisser, 894 S.W.2d 366 (Tex.Crim.App. 1995) 16 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) 14,15 West v. Solito, 563 S.W.2d 240 (Tex. 1978) 15 State Statutes Art. 1, §10, Texas Constitution 9, 14 §22.221(a) and(b), Texas Government Code 9, 14 U. S. Constitution Amend. V, U.S. Constitution 9, 14 Amend. VI, U.S. Constitution 9, 14 Amend. XIV, U.S. Constitution 9, 14 TO THE HONORABLE COURT OF APPEALS: Relator, Thomas Allen Simon, shows: STATEMENT OF THE CASE The underlying suit (Cause No. 42908 in the 424th Judicial District Court of Burnet County, Texas) is an indictment alleging two counts of aggravated sexual assault and one count of aggravated assault. On April 8, 2014, Tracy D. Cluck was appointed to represent Relator in his then un- indicted felony cases in Burnet County. Relator is incarcerated in the Burnet County Jail pending trial. This case is set for hearing on pre-trial motions on August 27, 2015 and for jury trial on September 14, 2015. Relator, by and through his attorney, Tracy D. Cluck, filed ex parte motions on July 31, 2015 seeking funds for a medical expert and additional funds for investigation services. The trial court set these matters for hearing on August 7, 2015 and sent notice to Tracy D. Cluck to appear. The hearing was held ex parte in a closed courtroom, with Relator present, and a record was made. Although Relator had not expressed any dissatisfaction with Cluck or even any desire to have Cluck removed from his case, Respondent sua sponte ordered that Cluck be immediately removed as attorney for Relator. Later that day, Respondent signed an order substituting Gary Prust as attorney for Relator. The case is now set on the trial court's docket for pre-trial hearing and jury trial as set out above. STATEMENT OF JURISDICTION This Court has jurisdiction of this Petition under §22.221(a) and (b) of the Texas Government Code. This Petition is also brought under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and under Art. 1, §10 of the Texas Constitution. ISSUES PRESETNED ISSUE NO. ONE: Does the power of the trial court to appoint counsel to represent indigent defendants carry with it the concomitant power to remove counsel at the judge's discretionary whim? If not, will mandamus issue to cause Respondent to set aside his order substituting Gary Prust as appointed counsel to represent Relator? ISSUE NO. TWO: When a defendant is seeking mandamus relief to set aside an order appointing new counsel, will a writ or prohibition issue to stay proceedings in the trial court to thereby prevent interference with the jurisdiction of the Court of Appeals? STATEMENT OF FACTS Relator was indicted June 3, 2014 for two counts of aggravated sexual assault and one count of aggravated assault. A true copy of that indictment is attached in the Appendix hereto, marked as Exhibit 1, and incorporated by reference for all purposes. Relator denies the allegations of that indictment. On April 8, 2014 Tracy D. Cluck was appointed to represent Relator with respect to his then un-indicted felony cases in Burnet County (subsequently indicted as Cause No. 42908 in the 424th District Court of Burnet County, Texas). A true and correct copy of the e-mail notice of appointment to counsel is attached in the Appendix hereto, marked as Exhibit 2, and incorporated by reference for all purposes. 10 On July 31, 2015 Relator, by and through his attorney Tracy D. Cluck, filed ex parte motions seeking funds for a medical expert and additional funds for investigative services. On August 3, 2015 counsel received an email notice from the court notifying him that Respondent had set the matter for hearing on August 7, 2015. On August 7, 2015 the court held an ex parte hearing in a closed courtroom with Relator present. A record of that hearing was made by the official court reporter for the 424th District Court, Jennifer M. Fest. A true and correct copy of the notice of the e-mail notice of this hearing and the docket sheet is attached in the Appendix hereto, marked as Exhibit 3, and incorporated by reference for all purposes. On August 7, 2015, at the ex parte hearing on Relator's ex parte motion, Respondent sua sponte removed Tracy D. Cluck as Relator's attorney. Later that day Respondent appointed Gary Prust to represent Relator. A true and correct copy of that order is attached in the Appendix hereto, marked as Exhibit 4, and incorporated by reference for all purposes. Relator's case is set for hearing on pre-trial motions on August 27, 2015 at 9:00 a.m. and for jury trial on September 2015 at 8:30 a.m. A true and correct copy of the order setting these matters on the court's docket is 11 attached in the Appendix hereto, marked as Exhibit 5, and incorporated by reference for all purposes. Relator has not requested new counsel and, indeed, wishes for Tracy D. Cluck to continue to represent him. See Relator's Affidavit (Unsworn Declaration), which is attached in the Appendix hereto, marked as Exhibit 6, and incorporated by reference for all purposes. Tracy D. Cluck did not request to be removed as attorney for Relator nor did he receive notice that the trial court would hear the issue of substitution of counsel at the hearing on Relator's ex parte motions held on August 7, 2015. See Declaration of Tracy D. Cluck, attached in the Appendix hereto, marked as Exhibit 7, and incorporated by reference for all purposes. The instant application results. SUMMARY OF THE ARGUMENT A trial judge acts without reference to guiding authority when he removes appointed counsel from representing an indigent defendant and appoints new counsel. Mandamus will issue to require the trial judge to set 12 aside that order. Mandamus relief is available to address this abuse of discretion as Relator has no adequate remedy by appeal and is entitled to mandamus relief. A writ of prohibition should issue to prohibit Respondent from taking any further action on the underlying case until this appellate proceeding is concluded. ARGUMENT AND AUTHORITY ISSUE NO. ONE RESTATED: The power of the trial court to appoint counsel to represent indigent defendants does not carry with it the concomitant power to remove counsel at the judge's discretionary whim and mandamus should issue to cause the order removing counsel to be vacated. As shown by his Declaration, Relator is not dissatisfied with his attorney and has not requested new counsel to be appointed. As no request for new counsel was made and since notice of the hearing on Relator's ex parte motions does not indicate that the issue of substitution of counsel 13 would be heard by the trial court, it is clear that Respondent issued the order complained of sua sponte. Relator's right to counsel implicates his rights under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. It also implicates his rights under Art. 1, §10 of the Texas Constitution. Entitlement to Writ of Mandamus This court has concurrent mandamus jurisdiction with the Texas Court of Criminal Appeals in criminal-law matters. Padilla v. McDaniel, 122 S.W.3d 805, 807 (Tex.Crim.App. 2003)(orig. proceeding)(/?er curiam). Mandamus is an extraordinary remedy. Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law. Mandamus relief is available if the trial court violates a duty imposed by law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A writ of mandamus will issue to correct trial court actions when there has been a clear abuse of discretion, particularly where the remedy by appeal is inadequate. In re Kuntz, 124 S.W.3d 179, 180 (Tex. 2003); Ayers v. 14 Canales, 790 S.W.2d 554, 556 (Tex. 1990); Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987); West v. Solito, 563 S.W.2d 240, 244 (Tex. 1978); Walker, 827 S.W.2d at 843; Jampole v. Touchy, 613 S.W.2d 569, 572 (Tex. 1984). A trial court abuses its discretion if it acts without reference to any guiding rules and principles or if the trial court's act is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). "A trial court has no discretion in determining what the law is or applying the law to the facts." Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996)(citing Walker, 827 S.W.2d at 840). The "trial court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion." Id. A writ of mandamus will issue to correct trial court actions when there has been a clear abuse of discretion, particularly where the remedy by appeal is inadequate. Ayers v. Canales, 790 S.W.2d at 556; Garcia v. Peeples, 734 S.W.2d at 345; West v. Solito, 563 S.W.2d at 244. The Court of Criminal Appeals has held "[t]hat the power of the trial court to appoint counsel to represent indigent defendants does not carry with it the concomitant power to remove counsel at his discretionary whim." 15 Stearns v. Clinton, 780 S.W.2d 216, 223 (Tex.Crim.App. 1989). A trial court cannot remove appointed counsel merely because he wants a different attorney to handle the case based on his personal feelings and preferences and mandamus is the appropriate remedy. Id; Buntion v. Harmon, 827 S.W.2d 945 (Tex.Crim.App. 1992); Stotts v. Wisser, 894 S.W.2d 366 (Tex.Crim.App. 1995); see Bowen v. Carries, 843 S.W.3d 805 (Tex.Crim.App. 2011). But that is exactly what the Respondent has done in the case at bar. And in so doing, he has acted directly in contravention of controlling precedent to interfere with the attorney-client relationship between Relator and Tracy D. Cluck. Mandamus should issue to set aside Respondent's order substituting Gary Prust for Tracy D. Cluck as Relator's attorney. ISSUE NO. TWO RESTATED: A Writ of Prohibition should issue to prohibit Respondent from holding any hearings on the case until such time as the application for writ of mandamus shall have been determined. Respondent has set the case on the trial court's docket on August 27, 2015 for hearing on Relator's pre-trial motions and on September 14, 2015 16 for jury trial. As it stands, Tracy D. Cluck has been removed as Relator's attorney and has no right to represent Relator at the pre-trial hearing or jury trial. Relator does not know whether this Court can rule on this application before this hearing and/or the jury trial occur. Entitlement to Writ of Prohibition The writ of prohibition is an extraordinary judicial writ that may be issued by a Court of Appeals, as a court of superior jurisdiction, directed to a court of inferior jurisdiction. Its purpose may be to prevent an inferior tribunal from exercising a jurisdiction that it has no lawful right to exercise. The writ of prohibition as used in Texas has three principal functions: (1) preventing interference with the higher courts in deciding a pending appeal; (2) preventing an inferior court from entertaining suits which will re-litigate controversies which have already been settled by the issuing court; and (3) prohibiting a trial court's action when it affirmatively appears that the court lacks jurisdiction. Humble Oil Co. Inc. v. Walker, 641 S.W.2d 941, 943 (Tex.App.—Dallas 1982, orig. proceeding). 17 Mandamus and prohibition are available in a criminal proceeding if the relator shows that: (1) the act he seeks to compel or prohibit does not involve a discretionary or judicial decision; and (2) he has no adequate remedy at law to redress the harm that he alleges will ensue. Simon v. Levario, 306 S.W.3d 318 (Tex.Crim.App. 2009)(orig. proceeding); see also In re State ex rel. Weeks, 391 S.W.3d 117, 122-23 (Tex.Crim.App. 2013)(orig. proceeding); Deleon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App. 2004)(orig. procededing). The first prong requires the relator to show that he has a clear right to the relief sought, meaning that the facts and circumstances dictate only one rational decision under unequivocal, well-settled, and clearly controlling legal principles. Simon, 306 S.W.3d at 320. When a relator seeks extraordinary relief that amounts to the undoing of an accomplished judicial act, that relief is more in the nature of mandamus than prohibition. Id. at 320, n. 2. Any attempt by Respondent to force the underlying case to hearings or to trial will interfere with this Court's jurisdiction and will deprive Relator of the right to have the impropriety of the challenged order removing Tracy D. Cluck determined before he is subjected to hearings or trial hereunder. 18 A writ of prohibition should issue to prevent the Respondent from taking any action to proceed to hold hearings or to proceed to trial on the indictment against respondent. CONCLUSION & PRAYER This Court should hold that Respondent abused his discretion when he removed Tracy D. Cluck as Relators attorney and appointed Gary Prust to represent Relator. This Court should further hold that a writ of prohibition is necessary to prevent the Respondent from holding hearings or from proceeding to trial on the indictment against Relator. This Court should thereafter issue its writs of mandamus and prohibition in conformity with the allegations of this Petition and the Court's findings. This Court should grant Relator general relief. Respectfully submitted, TRACY D. CLUCK Tex. Bar No. 00787254 12600 Hill Country Blvd., Ste. R-275 19 Austin, Texas 78738 Tel: (512)329-2615 Fax: (512)329-2604 tracy@tracyclucklawyer.com ATTORNEY FOR RELATOR THOMAS ALLEN SIMON Of Counsel: L. T. "Butch" Bradt 14015 Southwest Freeway, Suite 4 Sugar Land, Texas 77478 Tel: (281)201-0700 Fax: (281)201-1202 ltbradt@flash.net CERTIFICATE OF SERVICE I, the undersigned attorney, in accordance with Rule 9.5, Tex.R.App.P., certify that a true and correct copy of the foregoing Petition was delivered on August 10, 2015, by facsimile, to: Honorable Evan Stubbs 424th Judicial District Court 1701 E.Polk St., Ste. 74 Burnet, Texas 78611 Fax: (512)756-8478 Hon. Wiley B. "Sonny" McAfee 33rd & 424th Judicial District Attorney 1701 E.Polk St, Ste. 24 Burnet, Texas 78611 Fax: (512)756-8572 Gary Prust 1607 Nueces St. Austin, Texas 78701 Fax: (512)469-9102 TRACY D. CLUCK 20 CERTIFICATE OF WORD COUNT I certify that the pertinent portion of this Petition for Writ of Mandamus and Writ of Prohibition is comprised of approximately 3216 words. TRACY D. CLUCK TRAP RULE 52.7(a)(2) STATEMENT A record of testimony was made of the ex parte hearing on Relator's ex parte motions by the official court reporter for the 424th District Court of Burnet County, Texas, Jennifer M. Fest, 208 Elm Lodge Dr., Kingsland, TX 78639, (512) 715-4238, 424reporter@dcourttexas.org. No exhibits were field at this hearing. However, this hearing contains testimony and discussion relevant to this original proceeding. Relator, by and through his attorney, Tracy D. Cluck, has requested the record of this hearing. A true and correct copy of the e-mail requesting the record is attached in the Appendix hereto, marked as exhibit 8, and incorporated by reference for all purposes. This was a closed, ex parte hearing where confidential matters regarding Relators case were discussed with the court. No members of the general public or representative of the State were present or allowed to be present during this confidential hearing. This petition, once filed, is a public record, which must be served on the prosecuting attorney in Relator's criminal case. As such counsel is not able to attach the record from the hearing as required by Texas Rules of Appellate Procedure 52.7(a)(2) without breaching his ethical duty of confidentiality to Relator. Relator requests that the Court of Appeals order the court reporter to forthwith file a sealed record of the hearing held on August 7, 2015 with Court of Appeals in order to preserve lawyer/client privilege and the constitutional rights of Relator to due process. TRACY D. CLUCK 21 APPENDIX 22 NO: H ^ Q g THE STATE OF TEXAS VS. THOMAS ALLEN SIMON COUNTI INDICTMENT: SEXUAL ASSAULT I PENAL CODE; 22.01 l(aXl) DEGREE OF FELONY: SECOND DEGREE FELONY OFFENSE CODE: 11990001 BOND: COUNTn INDICTMENT: SEXUAL ASSAULT PENAL CODE: 22.01 l(aXl) DEGREE OF FELONY: SECOND DEGREE FELONY OFFENSE CODE: 11990001 BOND: COUNT i n INDICTMENT: AGO ASSAULT W/DEADLY WEAPON PENAL CODE: 22.02(aX2) DEGREE OF FELONY: SECOND DEGREE FELONY OFFENSE CODE: 13150005 BOND: CONTROL #DA-14-00599 TRN#9192634370 D001;D002; A001 IN THE 424* JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS: THE GRAND JURY, for the County of Burnet, State of Texas, duly organized, impaneled and sworn as such at the January term, A.D. 2014, of die 424* Judicial District Court for said County, upon their oaths present in and to said court at said term that, THOMAS ALLEN SIMON, hereinafter referred to as Defendant, on or about the l" day of September, 2012 and before the presentment of this indictment, in the County of Burnet, and the State of Texas, did men and there intentionally or knowingly cause the Page 1 of 1 Exhibit \ 1 penetration of the sexual organ of Rebecca Schaller by the Defendant's sexual organ, withouttiieconsent of Rebecca Schaller. COUNT II AND IT IS FURTHER PRESENTED in and to said Court at said term, that on or about the l" day of September, 2012, and before the presentment of this indictment, in the County of Burnet, and the Slate of Texas, the Defendant did then and there intentionally or knowingly cause the penetration of the anus of Rebecca Schaller by the Defendant's sexual organ, without the consent of Rebecca Schaller. COUNTm AND IT IS FURTHER PRESENTED in and to said Court at said term, that on or about the 25* day of January, 2014, and before the presentment of this indictment, in the County of Burnet, and the State of Texas, the Defendant did then and there intentionally, knowingly, and recklessly cause bodily injury to Rebecca Schaller by striking her with his hand, and the Defendant did then and there use a deadly weapon, to-wit: the Defendant's hand, during the commission of said assault. AGAINST THE PEACE AND DIGNITY OF THE STATE FOREPERSON OF THE GRAND JURY Ftp 2 of 1 Roxanne Nelson April 8, 2014 8:56 AM To: "Tim Cowartm , "Tracy Cluck'" RE: Thomas Simon Mr. Cluck: Consider this notice that you have been substituted on Mr. Simon's felony case(s). Prom: Tim Cowart [mailto:itcowart@Wmcowai11awofrice.oorn] Sent Monday, April 07, 2014 10:40 PM To: Tracy Cluck Cc: Roxanne Nelson Subject: Re: Thomas Simon Judge Nelson, Please consider this as a request to substitute Tracy Cluck as appointed counsel for Mr. Simon's felony case(s). As you may see from the quoted email correspondence, Mr. Cluck is familiar with Mr. Simon's situation, having been his lawyer on misdemeanor charges since last year. Thank you for your courtesies and attention. Sincerely, Tim Cowart Attorney at Law Reply Email: jtcowartfg.tirricowartlaworTice.corn Llano: (32,5)247-5486 Marble Falls: (830^798-1063 Facsimile: (866U18-4I60 URL: http://www.timcowartlawofTice.com CONFIDENTIALITY NOTICE: The information in this email may be confidential and/or privileged. This email is intended to be reviewed by only the individual or organization named above. If you are not the intended recipient or an authorized representative of the intended recipient, you are hereby notified that any review, dissemination or copying of this email and its attachments, if any, or the information contained herein is prohibited. If you have received this email in error, please Exhibit Jennifer Bunting <424coordinator@dcourttexas.org> August 3. 2015 2:23 PM To: Tracy Ciuck 42908; Thomas Simon Dear Mr. Cluck: Judge Stubbs wants a hearing on your motion for additional funds. I will not put on the docket what the hearing is for since it is ex-parte but the hearing will be set for August 7 at 9:00 a.m. Best Regards, Jennifer Bunting 424th Judicial District Court Coordinator 1701 E. Polk Burnet, TX 78611 512-756-5438 telephone 512-756-8478 facsimile Honorable Judge Evan Stubbs Presiding Exhibit In The 33ra/424[n Judicial District Court of Bumet County 8/4/2015 10:46 AM State of Texas Honorable Evan Stubbs Criminal Docket Friday, August 07, 2015 at 9:00 AM P ,-. Q (- | 5 12) 43758 -St^sNearirjgjOj.QO.M SANDERS, TIMOTHY LARS Davis, Richard 512-756-5117 Warrant Status. Served Degree: Offense: Court Appointed (F2)MAN DEL CS PG 1A >=20«80AU 03/26/2015 M JAU. 70 Bond Information: S35.000.00 2015-001 PATS BAIL BONDS Continuances: 0 30 Days 01/20/2015-02/18/2015 Last Court Date: 07/28/2015 Related Cases: Memo: Assessed Fees: Projected Crt Costs: Future Hearing Date: 08/27/2015; 09/14/2015 Age of Case: 182 $0.00 $284.00 Indictment Date. 02/03/2015 TOTAL: $284.00 13) 42908 - Sftte.H^^.nfl at..9:MAM. SIMON, THOMAS ALLEN Cluck, Tracy D. 512-329-2615 Warrant Status: Served Degree: Offense: Court Appointed (F2JSEXUAU ASSAULT 06/06/2014 I N J A I L 511 (F2)SEXUAL ASSAULT (F2) AGG ASSAULT W/DEADLY WEAPON 421 Days as of 08-04-2015 06/10/2014; 421 Days as of 08-04-2015 06/10/2014-; 511 Days as of 08-04-2015 Continuances: 0 03/12/2014 - Last Court Date: 06/10/2015 Related Cases: Memo: Assessed Fees: Projected Crt Costs: Future Hearing Date: 08/27/2015:09/14/2015 Age of Case: 427 $50.00 $474.00 Indictment Date: 06/03/2014 TOTAL: $524.00 14) 44179 v§toftMHearing.aj..$.:.Q9.AM. TAYLOR, CALVIN ERNEST JR. Def.Pub 512-234*3061 Warrant Status: Degree: Offense: Court Appointed =4G<200G 02/13/2015 IH JAIL 174 Continuances: 3 174 Days as of 08-04-2015 02/12/2015 - Last Court Date: 07/20/2015 Related Cases: Memo: Assessed Fees: Projected Crt Costs: Future Hearing Date: Age of Case: 63 $0.00 $284.00 Indictment Date: 06/02/2015 TOTAL: $284.00 (Rev. 12/01) CAUSE NO. 42908 THE STATE OF TEXAS § IN THE DISTRICT COURT OF v. § § BURNET COUNTY. TEXAS THOMAS ALLEN SIMON § ORDER ON DEFENDANT'S APPLICATION FOR APPOINTMENT OF ATTQRNEY After considering me appfcation for appointment of attorneyfiledby trie Defendant m the afjove entitled and numbered cause, and the evidence in support thereof and in opposition (hereto, the Court finds that: D Defendant O is X is nol D is not fully financiaBy able to employ an attorney and that Defendant's application for appointment should be X GRANTED D DENIED. D Defendant has not property completed the Application and the same is hereby DENIED based on: D Inadequate attempts to hire attorney when apparently able. O Inadequate attempts to borrow money. • See highlighted areas. D Has assets capable of obtaining loan - must submit at least two loan rejections. O Financial information is not credible - hearing is required before the judge. D Other ft is accordingly ORDERED that: X • Public Defender's Office OR X GARY PRUST. Substituting for Tracy Cluck be and is hereby appointed to represent said Defendant. D The Court finds that Defendant is able to pay $ toward attorney fees and is hereby ORDERED to deposit such sum in the Attorney's Trust Account on or before D days from this date, or Q at the rale of $ per (wk)(moKea. Paycheck) until such sum is accumulated. Attorney shall immediately inform the Court if any payment is missed. If presently in jail, defendant is ORDERED to begin such payments beginning one week after release on bond. O Defendant employ an attorney for this proceeding and appear, with counsel, before this Court in County, Texas, on „ , 19 . at o'clock ,m. for the purpose ol O Review of Application for Ct. appt'd Attorney D Arraignment, D Appearance of counsel, D Status Hearing D Other and. if failing to hire counsel. Defendant shall show cause for the failure to do so and may be hefd in contempt Signed on August 7,2015. jjf Judge Presiding »{if checked) Following receipt is required. I hereby acknowledge receipt of a copy of this ORDER, on ^ t f £^5— y _, 20 ' j y Defendant CC: District Attorney Tracy Cluck Gary Prust (Prior Attorney-Client Relationship) Thomas Allen Simon Exhibit H Cause No. 42908 SEXUAL ASSAULT: SEXUAL ASSAULT: AGG ASSAULT W/DEADLY WEAPON THE STATE OF TEXAS § IN THE 424TH DISTRICT COURT v. § OF THOMAS ALLEN SIMON § BURNET COUNTY, TEXAS NOTICE OF SETTING OR RESETTING The above entitled and numbered cause is hereby set/reset for the following date (s) and purpose (s). All times are 9:00 a.m. unless noted to the contrary. 28.01 Hearing August 27,2015 9:00 AM Plea Deadline Docket August 27,2015 9:00 AM Jury Trial September 14,2015 8:30 AM GENERATED this 10th day of June, 2015 IN CRIMINAL CASES, FAILURE OF A DEFENDANT TO APPEAR FOR ANY SETTING ABOVE MAY RESULT IN FORFEITURE OF BOND AND ISSUANCE OF CAPIAS FOR ARREST. IN ALL CASES, FAILURE OF AN ATTORNEY TO APPEAR MAY RESULT IN APPROPRIATE SANCTIONS BEING IMPOSED UPON THE ATTORNEY. Original to the Court File. Copies of this notice have been sent to: District Attorney P.O. Box 725 Llano, TX 78643 TRACY D. CLUCK Exhibit Affidavit of Thomas Simon 1. My name is Thomas Simon. I am the Defendant in Cause No. 42908 in the 424th Judicial District of Burnet County, Texas. 2. It is my desire that Tracy D. Cluck remain as my court appointed attorney in my criminal case. Affiant further sayeth not. Thomas Simon My name is Thomas Simon. My date of birth is 3 "^^ •* P* -^ , and my inmate identification number is 26546. I am presently incarcerated in the Burnet County Jail in Burnet, Burnet County, Texas 78611. I declare under penalty of perjury that the foregoing is true and correct. Executed on the / day of August, 2015. Exhibit (o UNSWORN DECLARATION OF TRACY D. CLUCK Under 28 U.S.C. §1746 and Texas Civil Practices & Remedies Code §132.001 etseg., I declare under penalties of perjury that my name is Tracy D. Cluck. I am over the age of 18 years and competent to make mis declaration. My date of birth is October 4, 1961. My address is 12600 Hill Country Blvd., Ste. R-275, Austin, Texas 78738. This document is not a lien required to be filed with a county clerk, an instrument concerning real or personal property required to be filed with a county clerk, or an oath of office or an oath required to be taken before a specified official other than a notary public. I have not been forced to sign this declaration. I declare under penalties of perjury that all assertions provided in this document are correct and true. The documents attached to the Petition for Writ of Mandamus and Writ of Prohibition are true and correct copies of the original documents, which are found among the papers of Cause No. 42908 in the Office of the District Clerk of Burnet County, Texas or from my files. I did not request to be removed as attorney for Thomas Allen Simon. I did not receive notice that the trial court would hear the issue of substitution of counsel at the hearing on Relator's ex parte motions held on August 7, 2015. Thomas Allen Simon did not ask that I be removed as his attorney prior to, during or after that hearing. The hearing was ex parte, in a closed courtroom, with only me, Relator (who was and is in the custody of the Bumet County Sheriff), Respondent, a Deputy Sheriff, a representative of the District Clerk's Office, and the official court reporter for the 424th Judicial District Court of Burnet County, Jennifer M. Fest (who made a record of the hearing). At that hearing the trial court sua sponte removed me immediately as Relator's attorney over my objection and did not rule on Relator's ex parte motions. Signed on August 9, 2015. TRACY DTCITJCK Exhibit n Tracy Cluck August 7, 2015 4:20 PM Tn lonnifpr Huffman ^-d94rAnnrtAr(15)rlrriMrttpva9 n r g > Simon Ex Parte Hearing 8/7/15, No. 42908, Burnet Hi Ms. Hoffman, I would like to obtain a transcript of the ex part hearing in State of Texas v. Thomas Simon, Cause No. 42908, In The 424th District Court of Burnet County, held this morning, 8/7/2015, in Burnet County, Texas. Please let me know the cost for this and I will pay you for the record of this hearing. You can provide this to me in electronic form. Also, please preserve all of your records of this hearing, including but not limited to, tape recordings, electronic files, and stenograph tapes. Thank you for your prompt attention to this matter. With kindest regards, Tracy D. Cluck (512) 329-2615 Austin/Bee Cave (512) 264-9997 San Antonio/Hill Country www.tracyclucklawyer.com Exhibit OURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-15-00500-CV In re Thomas Alien Simuu ORIGINAL PROCEEDING FROM BURNET COUNTY MEMORANDUM OPINION We lift the stay order issued on August 12, 2015, and deny relator's petition for writ of mandamus and for writ of prohibition. Bob Pemberton, Justice Before Chief Justice Rose, Justices Pemberton and Field Filed: August 25, 2015 ibit Exhibit 1O