WR-83,820-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/2/2015 2:24:00 PM
Accepted 9/2/2015 2:52:55 PM
ABEL ACOSTA
NO. _________________ CLERK
IN RE WILLIE EDWARD DAVIS, § RECEIVEDOF
IN THE TEXAS COURT
COURT OF CRIMINAL APPEALS
§ 9/2/2015
RELATOR § ABEL ACOSTA,
CRIMINAL APPEALS CLERK
MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS
AND PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
WILLIE EDWARD DAVIS, the Relator, files this Motion for Leave to File
Petition for Writ of Mandamus and this Petition for Writ of Mandamus against the
Honorable Kyle Hawthorne, Judge of the 85th Judicial District Court, Brazos County,
Texas, Respondent. Relator supports this petition as follows:
IDENTITY OF PARTIES AND COUNSEL
The following list is a complete list of the names and addresses of all parties
and the names and addresses of their counsel: Relator: Mr. Willie Edward Davis,
TDCJ # 1422283, Mark W. Michael Unit, 2664 FM 2054, Tennessee Colony, Texas
75886; Counsel for Relator: Michael C. Gross, 106 South Saint Mary’s Street, Suite
260, San Antonio, Texas 78205; Respondent: The Honorable Kyle Hawthorne, Judge
Presiding, 85th Judicial District Court, 300 East 26th Street, Suite 224, Bryan, Texas
77803; Jarvis Parsons, District Attorney, 300 East 26th Street, Bryan, Texas 77803.
STATEMENT OF THE CASE
The Relator filed an 11.07 application for a writ of habeas corpus in the
convicting court, 85th District Court, Brazos County, Texas on December 4, 2012 in
Cause No. 06-01284-CRF-85-A. The district court signed an order designating issues
for resolution on January 9, 2013. See attached Exhibit A. More than 180 days has
elapsed since the date of receipt of the application by the State to resolve those issues
designated for resolution, and the district clerk has not forwarded the writ record to
this Court, and no extension of time has been requested from this Court.
STATEMENT OF JURISDICTION
This Court has jurisdiction in this proceeding pursuant to Article V, § 5, of the
Texas Constitution; Article 4.04 of the Texas Code of Criminal Procedure; and Rule
72 of the Texas Rules of Appellate Procedure.
ISSUE PRESENTED
Relator filed an application for a writ of habeas corpus in the 85th District
Court, Brazos County, Texas; more than 180 days have passed since the date of
receipt of the application by the State to resolve those issues designated for
resolution; and the writ record has yet to be forwarded to this Court. This Court
should order the district judge and district clerk to forward the writ record to this
Court.
STATEMENT OF FACTS
The Relator filed an 11.07 application for a writ of habeas corpus in the
convicting court, 85th District Court, Brazos County, Texas on December 4, 2012 in
Cause No. 06-01284-CRF-85-A. The district court signed an order designating issues
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for resolution on January 9, 2013. See attached Exhibit A. More than 180 days has
elapsed since the date of receipt of the application by the State to resolve those issues
designated for resolution, and the district clerk has not forwarded the writ record to
this Court, and no extension of time has been requested from this Court.
ARGUMENT
If a trial court enters a timely order designating issues, it has 180 days from the
date of receipt of the application by the State to resolve those issues designated for
resolution, and on the 181st day from the date of receipt of the application by the
State, the district clerk shall forward the writ record to this Court unless the district
court has received an extension of time from this Court. See Tex. R. App. P.
73.4(b)(5). The Respondent’s failure to act after entering an order designating issues
for resolution is a failure to perform a ministerial function under the facts of this case
because the imposed deadline for factual issues to be resolved has long passed and
the case has yet to be forwarded to this Court. See McCree v. Hampton, 824 S.W.2d
578 (Tex. Crim. App. 1992); Tex. Code Crim. Proc. Art. 11.07; Tex. R. App. P.
73.4(b)(5). The trial court has no authority to continue to hold Relator’s writ record
and is under a ministerial duty to immediately forward the writ record to this Court.
The Relator has no adequate remedy at law to pursue the requested relief other
than this petition.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, the Relator respectfully prays that
the Court grant the Motion for Leave to File Petition for Writ of Mandamus, grant
this Petition for Writ of Mandamus, and issue a writ of mandamus directing the
Honorable Kyle Hawthorne, Judge Presiding, 85th Judicial District Court, Brazos
County, Texas, and district clerk, to forward the writ record to the Court of Criminal
Appeals for review.
Respectfully submitted,
/s/ Michael C. Gross
Michael C. Gross
State Bar No. 08534480
106 South St. Mary’s Street, Suite 260
San Antonio, Texas 78205
(210) 354-1919
(210) 354-1920 Fax
Attorney for the Relator,
WILLIE EDWARD DAVIS
CERTIFICATION
I, Michael C. Gross, attorney for the Relator, have reviewed the petition and
concluded that every factual statement in the petition is supported by competent
evidence included in the appendix or record.
/s/ Michael C. Gross
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was mailed to the
Honorable Kyle Hawthorne, Judge Presiding, 85th Judicial District Court, 300 East
26th Street, Suite 224, Bryan, Texas 77803; and Jarvis Parsons, District Attorney, 300
East 26th Street, Bryan, Texas 77803 on the 2nd day of September 2015.
/s/ Michael C. Gross
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