Aguirre, Joel

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I~u~~i~:: ~~:::o~~urt of trimi.nal Appea~$2-e Inre: Joel Aguirre,Pro Se Capacity, §Tr.Ct.Case#CJ432-010495-1255195-A APPLICANT/ Relator, § C-432-010496-1255195~8 § Versus, § George Gall aghes, habeas corpus Judge' § 'rCCA case# RE"'EI"ED '~' for/to ~he 432nat~ JcudictiaTl Distri~t § ~--C-O_U_R_T~O~F~gC~R~I~MvniN~A~L;A,nPyrP-E-A-LS--- Court oi Tarran oun y, exas;unaec- § ipherable signature of judge who signed § memorandum and ORDER of 6/26/2015;Clerks§ DEC 17 2015 for said habeas Court'( s) Judge ( s), et la. § Respondent(s) Abel Acosta, Clerk Relator's Original Application For A Writ of Mandamus Pursuant to § 22.221 (b) of the Texas Government Code;R~les 72.1 &172.2 Of Texas Rules Of Appel~ late Proced~re.Among Other laws ~hat Applj .... To the Texas Court of Criminal Appeals,and Respond~nt(s) of interest: Let there be und~rstanding,that now comes,One Joel Aguirre,a pro se Applicant in the lower Courts,and Relator herein after,sub JUdice,and in the above styled,Ca- ption and numbered causes,cases ·of action,and proceeding in his pro se capacity, files [t]his application for a writ of mandamus,pursuant to Texas Government Co- de,§ 22.22l(b) and Rules 72.1 and 72.2 of the Texas Rules of Appellate Procedure, complaining of Texas and United States Constitutional rights violations of Your Relator,by the said Respondent(s) and invoking the Jurisdiction of this Superior Court of the Criminal Appeals,pursuant to Article 5,§ A of the Texas Constitut- ion-Curry V.Wison,853 S.W.2d 40,43 & n.l(Tex.Cr.App.l993);Garcia V~Dial,596 s,w. 2d 524,527-28,& n.4(Tex.cr.App.l98Q):Cf.Dennis v.state,647 S.W.2d 275,Supra(Tex. cr.App.l983).Thus,Rlator files [t]his writ of mandamus for docketing and process- ing it. to be issued against and upon the habeas corpus presiding JUdge,George Ga- llaghes,of the 432 2nd Judicial District Court of Tarrant County of the State of Texas,for abusing his judicial discretion,and authority,in acting outside the sc- ope of the law and judicial authority,~nd ihus,for intentionally failing and re- fusing to perform his ministerial duites and legal oblig~tions under and pursuant to State of Texas Constitutional laws,and statutory state laws emplaced for jud- ges guidelines and principles of law-provisions under writ of habe~s corpus bas- is in due process of law.Inwhich Shall be a ~rit of right and never be suspended, i.e.,Article 1.08 of the TEXAS Cod~ of criMihal Procedure;as well as Article I,§ 12 of the' Texas Constitution and Article 11.07,§ 3(b)(TCCP).And will state the following reasons why mand~mbs is necessary,to wit: · I . A. lst arid foremost,Respondent(s) ih this case and cause of action,have not proper- ly and legc:tlly processed, docketed and...;. ·-•. filed Relator's application· for a writ of habeas corpus amendm~nt and supplemental brief,£iled and served upon all per- tinent respondents in the lower Court's jurisdictional division or in any State of Texas Court with exclusive or original jurisdiction over cause#C-432-010495- 12551~5-~D and C-432-010496-1255195-D(or as A & B at the end of each citation) and Party(s) of interest.But ihwhich Respondent(s) in this mandamus proc~eding -~ is allegedly the habeas corpus judge,Gedrge Gallaghes,a state elected or appoin- ted or siiting by assiggment,as to an unknowri date arid who supposely adopted the unkonwn State's memorandum of some cansoled and withd~awn issues filed by an of- fender without Applicant's/Relator's consent.But,the fact that some illegal thi- rd party interveners ha~e intervene and hind~red Relator's access to obtain the legal remedies habeas corpus provisions provid~,is ~vid~nt that f~aud was perpe- trated upon the State Of T~xas Said Court and its jbdges.ALONG,and -upon Your Re- lator.That is,Sharen Wilson and Andra Jacobs names are being used to dismiss a- nd deny Relator's Constitutional violation claims and thereby,not heard by the habeas corpus Court's judge,and thereafter,not heard by the TCCA's J~Ust 1·c es .... l.plead. I ft·W h i c h I your Re 1 at or subsequent 1 y 1 ~"t) h j,.$ i n d u c e d 1 i 11 e g a l and u n 1 a wf u 1 p e t i t- ion submitted1was amended in timely matters1before the ·unconfirmed response was presented to the alleged trial or habeas corpus Court.On or About 11/2/20- J.S.That Applicant•s motion was entitled :"APPELEANT"S NOTICE TO AUGMENT THERE- CORD AND TO TIMELY AMEND AND SUPPLEMENT HIS ORIGINAL FILED PETITION FOR A-WRIT OF HABEAS CORPUS1AD TESTIFICANDUM1Pursuant to rule 33.2(a)~(b)l (c)(l)(l)l (B)~(e) (f) & (38.7 et seq of the Texas Rules of Appellate Procedure1Among others cited and Invoked~ ... Thu~~signed and delivered on ll/2/2015 ... Whenlthereafterlon ll/- 9th/20l51Jacobs and Wilson1hereinafter1interveners1proposed a baseless and gro- undless alleged memrandum1findings of fact and Conclusions of law regarding the issues raised in their[interveners] findings and submitted cooter-contentions. SEE the interveners copy submitted to your Relator . . . . submitted these items to show bad faith prosecution on the part of The Texas Department of Criminal Jus- tice1governed by Brad Livingston,and through his agent(s),Edgar D.Baker1as the actual and legal Custodian of recocd1and jailer who holds your Relator hostaged and restcained of of his liberty ,as per-the illegal and unlawftil State Court's '''onviction.JP>Jr~lU!lln.Cei!i by Gallaghes as/1 the presidinlj judye of trial.Whom himself never legally acquired subJect~matter jurisdiction over the causes in dispute & nor JUrisdiction over your Applicant1Relator sub JUdice . . . . . Evenmveover,there is another interder sitting as an i~poster for a )udge,in an tinauthorized all~ eged memorandum and its ORDER for designation of future resolutions-See exhii:it»- its 3-K & 3-L(with 3-A to 3-M).Not only is there no law citation ~ithin that baseless and illegal motion practice brief1but the undecipherable$signature~wi­ th an unidentifiable name,is wh~t is scribed as a mark for what appears to be for a presiding or sitting judge,on 6/26th/2015 ... And such fraudtilent indicat- ions are comoflauged with some stamp~mark imaging some magistrate "for Tarrant county, but no Texas notice to confirm [sic] that undercipherable phantom judge Wbiah ... unidentifi~ble judge,was not that judg~ who presided o~er tbe[ir]memora- "'dum that ·merely implies"there are controverted1previously unreasolved facts wh-- ich are material to the legality of Applicant 1 s confinment~-requiring designation of the issues for futuce resoiliutions~ Id.at exhibt 3=K •.. Dated 6/26!2015 •.. These unauthorized briefed in~onclusive or conclu~ion~ry allegations for Jay Coballe~ ero and the warden of the Mark Wayne Micha~l Unit,who holds Relator unlawfully, confind,as stat~d in Relator's COMPLUSORAR counter claim(s) and motion to amend the writ of habeas corpus issued by illegal inmate intervention(inmate Mr.Green) who was not authorized to send any frivolous claims.But,nonetheless,Relator tim- ely sent his motion to amend on time,before any alleyed habeas corpus proceedinys took effect and th~ legal person(s) of·interest were served.So no party has thus been served process of service •.. Which Relator's Cotinter-claim contends against such wrong and illegal third Party'(s)·intervention aad explains why'and how th- ey are obstructing )Ustice.See the seven page motion to am~nd,at ex~ibit 4-A TO 4-G(4-H to 4-L are the counter-claim e~hibits). B) The Respondent(s) is inVolved in the habeas torpus proceedings below,and is in- tentionally failing to act as requested by Your Relabor,and that breach of h~r/ his (it] p~bric fiduciary duty ,and legal obligations is a failare to perform [a] ministerial fuction,as a matter of law and under the facts of this~case because a conflict of interest exist.The £rail Court's officials or officers interwined with Relator's causes on appeal,state,"inter alia,varies violations of State and federal laws by the PROSECUT~NG A1TORNEYS ••. Thus,asserting ~umerous civil common- law violations by said tri~l Court's Pros~cutors and trial JUdge,as well as the- ir Court appointed defense counsel's intentional b~each of duty.Rather than re- iterate the arguments,authorities,legal arguments,factual recitations of law,and points/ground~ raised as issues of gf~fa~t and law for the purpose of this writ of.mandamus,.those_factual, r.ecitations oL.la.w and .. legal. arguments. of .Relator_'s - Comp~ili~oray Count~r-claims brief and motion to amend are incorporated by refere- nce into this Relator's mandamus application,as if set out entirely hereintoo,as well as his exhibitation submitted contemporaneous~y,and will,therefore,be argti~c together in connection with this mandamus proceeding.DeLeon V.District Clerk,l87 S.W.3d 473,474-75{Tex~Cr.App.2006). C) The Respondent'.(s) failure to act upon Relator's application for a writ Qf ha- beas corpus,ad testificandum as ~mended on or about ll/2/2015;along with Relat- or's motion for sanctions and comppl~Bry:counter claims elaberating what is the rel i e·f Relator seeks against the Res.p9,nde11t ( s) or and. her/his subor ina ter ( s)- 2.Plead, ·- as l~e Recalcitrant Clerk(s) who will refuse and has refused to file,docket and properly process Relator's w~it ofi habeas corpus in its written true con- tents,as properly executed documents which claim Civil Rights actions invol- ving [his] fundamental Constitutional rights guarantees pursuant to the United States C6h~titutional Amendments,as the Fourteenth's Cause l,among others und- er due process of law violations in that St~te of Texas trial Court.But deriv~ tive-from the Prosecuting Attorney' (s) induced fraudulent indictment,as found under Hamilton V.McCotter,l72 F.2d l71,183-84(5th Cir.l985),and State and fede- ral laws cited & cases.See indictment(s) and information thereof in their cont- ents and substance of illigitament or omitted essential and Constituent elemeA nts of the alleged offens~(s) sought to be charged,by a valid indictment or com- plaint in a case of criminal allegations or accusations which is the main means by which [the] Court(.S) obtains subject-matter iurisdiction,and is "the jurisd- ictional instrument upon which the accused stands trial~State V.Chatman,67l F. 531,538(KAN.l~83):Manriquez V.State,943 S.W.2d ll5,supra(Tex.cr;App.l995);Ray v.state,3 s.W.3d 623,625(Tex.cr.App.2000)(other related cases cited in incorp- orated exhibits). II. A. Mandamus relief sought to be compelled(is purely a ministerial act to be perfe armed is found under Articlea 11.02,11.03,11.04, &1L~..0¥,§~1)&(3)'(&),(b) & §§ 6 & 7 as well as Articles ll.ll,ll-13,11.14(1) to (5)(TCCP);Ex Parte Golden;99l S.W.2d 859,supra(Tex. cr.App.l999) and Articles 11.15,11, 16,11.19,11. 23,11, 27 ,11. 28, 11. 29,11. 30( 1) to ( 5), *11. 31.11- 32,11.36 and ll.40(TCCP).Thus,these said provivisions were cited for invocation of the laws of the State of Texas,as for enforcing Art.l.04 and l.08(TCCP),and thereby,challenging legal mat- ters related to the validity of the Prosecution arid judgment of quilt.Your Relator has exhaus- ted his ability to file,docket and have his causes of action processed·in·a proper and legal manner,as presented in his petition for awrit of habeas corpus,and thus,the semantics of dis- posing of an earlier habeas corpus petition that was canceled by your Relator,prior to that un- authorized sitting or retired ghost judge,for the trial habeas Court's iudge,on 6/26th/2015- and then judge George Gallaghes unauthorized adoption of the :illegal interveners illegal moti- on response or unlawful brief submitted with no dignified letterhead,State seal or- any other mark typically affi~ed to correspondence certifying its!their]source as~a genuine instrumentality of Texas.In fact,there is no decipherable signaure or signatures of Sharen Wilson and Andrea Jacobs at the end of ~heir baseless. & groundless state r~sponse to Relator's petition and memorandum of law,with his exhibits attached insupport of hi~ liberty interest isses raised as C6nstituti~ anal claims ... Wrose yet,the habeas torpus acting alleged judge gives no reason why its inconclusive findings of facts are sustainable against Relator,nor any reasoned arguments to support either factual findings required for an actual de- nial or and its conclusion of law-miss~p~lied to these cases sub judice.Thus,th- is is proof of usurpation of power treatment.Hence,the interveners letter for t- heir respon~e is even generated by a generic printer on light grade paper infe- rior to legal'business stationary.Hence,the Respondent{s) erroneously br inten~­ ionally failed to address the legal proposed motion to amend and Augment the rec- ord,and the Compulsory counter-claims against those fatally defective process ed brief ... Thus fraud-upon-the-Courts by interveners,and erroneouly falling to per- form his/her fi~uciary duty,as a ministerial function to m~ke a ruling on those 'two subsequent motions to amend and for sanctions ag~inst the said interveners ... Therefore,this mandamus complaint is to obtain an Order granting Relator's rel- ief against the Respondent(s),as an appeal of his issues subject to these pioc- eedings.Because he has no right or remedy to appeal Respondent'·ls) actions or in- actions to atrick,:-:-~.iriterveners improper/i-llegal brief practice in this instant case, and must be pr<;)_hibite(l ~rom:.•~dc?P~.+-~~, §l,lCh "}:lleg~l c,:Qntention.s that only .se- ive t6 deiay and d~ny :justcice o~ behalf of Yo~r Relato~see also Guerra Y~Gar­ za,987 s.W.2d 593,supra(T~x.Cr.App.l999).Thus,heretoo,the district trial habeas corpus judge did not have jurisdiction and exceeded his/her/their authority by unilaterally deciding to order designation for future resolution of Applicant's application or some kind·of applicaiion.Since no title was mentioned ,as to the ·type of writ was being addressed? .•. Thus,judge,George Gallaghsjcommitted usuvp- ation of power on·ll/24th/2015,when even the unqualified magistrate had already execised jurisdiction in this case(s) on appeal below,on 6/26th/2015.See exhibit 3-M and compare with 3-L ... riFurthermore,it was this imposter judge,with an .. ,, 3_ . P1ead. undecipherable signature,and an un~etermineable identity,who had not served the proper and legal individual Person[Respondent at habeas conpus appeara- nce to show cause of Relator's unlawful confinement] ,their complaints and su- mmons and affidavits for every party of interest as Respondents,under Oath th- at said summons and complaints had been delievered to them or him/her or their Attorney(s) ... But,Edgar D.Baker was not duly and legally served any summons ar nd complaint to deliever the body of this Rel~tor,before that habeas corpus -~ Court's judge,and would have been no longer detained on the original wa~rantl­ ess arrest papers and fatally defective proc~ssed void indictment(s) or infor- mation thereof,but under the authority of the habeas judge.i.e,Art.ll.32 and ll.45(TCCP);Boumediene V.Bush,553 u.S.723,128 s.ct.2229(2008)(cases cited in~ the amend€dQbnief motion & Counter/sanction motion).H~wever,it was the impos~ 2 ter 6v~~ntruder,as the undetermined ~pplication judgedwbo had prompted and sol~ icited the alregad criminal district Abtorney~(s) intervention to respond~td­ claims submitted by an Offender impersonating a paralegal and to ,impair and hi- rider Relator's rights to access to the Courts.But,no judge presiding over this Relator's causes of action had subject-matter jurisdiction t6 hear and decide on any type of Order or give JUdgment thereafter,.if an adoption of illegi'timate oppositions would come into existance.And they did ... These facts are all doc- umented and undeniable ... Therefore,Relator's complaint about the inte~veners a- re unattended to by Respondent(s),and the Rlator's motion to amend was not rul- ed on prior to that Order of'Tl/24/2015,by G.Gallaghes,acting as prsiding assu- med judge to the 432 Judicial District Court of ~arrant County,Texas ... Inwhich judge Galleghes,was exceeding his impli€d ju~isdictional authority by unilate- rally deciding to acquire~subject-matter jurisdicti6n over citation causes of convictions under,cases 0:-432-010495-1255195-D(or and A ?) and C-432-010496-12- 55195-D(Or & B ~),from another County and City of Fort Worth Texas.Where judge, Ruben Gonzalez,Junior was assigned to preside over said ~ases sub ~udice.And,­ those unconstitutional proceedings were held upon "Hearing On Rejection of Pl- ea Offer! ... on ll/4/2012~See Reporter's Record,Volume 2 of 6(said causes},~age l-as if under Court of Appeals# 02-12-00509-Cr-~-There is no.numbered Appell- ate Court to determine what Court of Appeals these proceedings where sent to a- nd hea~d & filed with ? except th~t an Angie Taylor, CSR, RPR Official Court Rep- orter for the 432nd District Court'' is imaged ! !phone#(817)-884-2341 •.. Wrose- yet, the Pa~ties in dispute are The STATE OF TEXAS AND JOEL 'AGUIRRE,but no indi- cation who is the Defendant or Appellant or Applicant or Respondent(s) or Appe- llees ?see said records,as exhibits 5-A(Tr.Ct.R.) .These documented transcripts were not Ordered transmitted to the TCCA,nor all pertinent documentation under the alleged indictment(s) or and information thereof.Even wrose yet,no refere- nce to provisions pusuant to ll.07,et seq(TCCP). See exhibit 3-M,also submitt- ed by Relator,Mr.Joe~ Aguirre .•. That's why it was important for Relator to be bench warranted back to the legal and proper County of Conviction,so as to cha- llenge those defective process of service proceedings held without Relator be- ing present by a general or special appearance,sua sponte,by the habeas Judge, and its authority,if any ••. "Notice of these illegal irregularities is critical to this mandamus claim,because the judge'(s) at the trial Court is a Respondent (s) undertaking such void motion practice by interveners.Thus,Relator has reas- on to believe that there must be [a) Scienter or and an intruder,meaning that the[ir]wrongful tort action and unlawful activity,is conduct that is knowingly and deliberately being committed,rather than inadvertent or unintentional .•..• Advance knowledge of these unprecedented set of circumstances prodded the Cond- uct complained-of herein, and has provided the l i r) elements &f scienters. "it !Ls: therefore,grounds for granting mandamus relief a~ainst the Respondeht(s) in va- cating it's ORDER or void order for adopting·an illegal third Party's STATE'S Memorandum,Findings of Facts and.conclusions of law as its own and thus,G.Gall- aghes recommendations that the relief JOEL AGUIRRE(Applicant) REQUEST be denied: be Denied •... are decisive Orders that must be vacated as void ab initio.State ex rel.Resenthal,98 S.W.3d 194,203(T~x.cr.App.2003).Therefore,without this TCCA's intervention the lower Court's Respondent(s} or its .subordinater'0~) inactions will continue to prevent Your Relator's entitlem~nts to legal due process of law and inturn Relator cannot remedy Respondent' (s) misapplication of his,her,their statutes~--which is the[ir] unconstitutional incarceration of Relator,and thus, 4.Plead. .the ~arranted writ of habeas corpus cannot accure untill Relator previal~- in this mandaums proceedings for action to be taken.Which includes1not not lim- ited to 1 this unconstitutional ~uilty plea will go uncorrected unless the mand- amus relief is issued and the result sought by this Aggrieved Relator1corrected as a msnifest ministerial act1as opposed to being a Judicial or discretionary ~ act not to hear Relator's Constitutional claim~ violations1and said Respondent 1s) refused to provide Your Relator an opportunity to be heard~and thus1any ado- . ~ted baseless opposition brief would be denying Relator his rights to due proce~~ ss of law and that inturn1makes an~ JUdgme~t rendered therefrom against him1void ab initio.Conse~uently~where there is a Rule providing for relief from a void JU- ogment1and is applicable1relief is not a discretionary matter1but is mandatory. New York Life Ins,€0.V.Brownl84 L3d 1371142-43 & n.l6-17(5th Cir.1996);Ruiz v. Quart e inllhll.'ro., '5'-@'4 F . 3d 52 3 1 5 2 7 ( 5 t h Ci r . 2 0 0 7 ) ; Cf. Davis V• State 1 2 2 7 S . W. 3d 7 3 3 1 "/ 3 6 & n.l-3(Tex.Cr~App.2007);Cf.Dennis V.Statel647 S.W.2d 2751supra(Tex.Cr.App.l983) 1 Rule 27.08(4)(TCCP) ALLOWS the TCCA'S judictices to relief a Party ... from any- prior issued Order or judgment against him,but that is ~oid because the trial C~ urt's JUdge that rendered it lacked JUrisdiction of the subJect-matter,and as in this case at bar1that judge acted in a manner inconsiStent with legal due process of law.Hencelmandamus relief is grounded on Relator's absolute rights1clearly an~ d plainly a·right that necessitates that the law plainly describe the duty to be performed as i b is purely a ministerial act sought to compel th'e habeas corpus - JUdge to grant the writ on it's merits,as it is beyond dispute that Relator will previal on the writ~s raiSed claims merits~ .eLeon1supra,at 474-75;Brown V.Edwar- ds1721 F.2d 1442,1448(5th Cir.l984),in Relator's case too1his quilty plea issues will never be barred because they were never actually legally binding bn hi~.as a plea argeement in contract matters1and thus,never actually litigated at the tr- ial Court's ptoceedings.Id. B) Relator has nb adequate remedy at law,to compel the habeas corpus judge to act upon Relator's asserted u.s.constitutional rights violations by Respondent' (s) prior to1and during the plea bargin bunch or trial on the merits,and has contin- ed untill this present day[ 12/5/2015].The habeas corpus judge's or intruder's substance of findings are not supported by substantial evidence1"as Relator's at- fid~vit,amendment motion,and counter claims are not only suppressed,but are not rebutted point-by-point~by the opposing Party(s),nor Respondent(s).Relator has- requested mandamus reli~t,as a challenge to that habeas judge's fact-finding pro- cess itself-on the ground that it was fatally d~ficient in it's m~morandam's ma- terial~as if adopting ''Affidavit of Jay Caballero! •. Morphed into Sharen Wilson's and Andrea Ja~obs Proposed Mem~randum all~gedly filed on ll/9/2015 ... With the Dis trict Clerk's Office of Tarrant County,Texas,but no signature for attesting to t- hat fact,and no time when filed ! Thus1the interveneis,and Respondent(s) defect- ive process of service presents facts showing Respondent'(s) Court's deficient~- j performannce and gross prejudice from in~tituting the[ir]actions against Relato~s claims raised in his petition ... illustrating there is no substantial evidence in the[ir] State Court~s record to show otherwise-but Relator has shown why and how the alleged indictment(s) was:as is fatally defective in substance material,and is the reason Relator neg~tes more than seven essential and Cbnstituent elements of each of the Prosecutor'(s) causes of action1as t~o negate every fact and infe- rence that could have possibly supported the JUdge's denial.And,thus,whoiRelator touched on in whole against th~ indietment(~) invalidity,it bears reiterating in pirt,in this mandamus proc~edings,for conclusively establishing all the-elements of an affirm~tive defense to be entitl~d to summary JUdgment on his petition for a writ of habeas corpus.e.g~cathey V • .Booth,900 s.W.2d 339,34l('I'ex.l995),and see Park Place Hospital v.Estate of MileS,909 S.W.2d 5b8,509(Tex.l995);Rule 166(~)(T~ ~x.R,Civ.P)~Holds that summary judgment is proper when evidence establishes as a matter of law that there is no genuine issue of fact as to one or more of the es- sential elements of the Prosecutor'(s) cause(s) of action~Id .... · · C)the ReSpondant'(s) Court's adoption of baseless findings of facts processed was deficient and defective because Relator never had a fair trial in the Trial JU- dge's presence,and that fundamentally unfair habeas Court's Judge=s defective pr- ocess of service denied RSlator his apportunity to hav~ his relevant habeas fact- s~heard and judiciarily deteimined ... Inturn,the habeas judge'SRespondent'(s) fact findin9s procedures have been proven1as can be found,to be faUlty urider Art.ll.07 et seg(TCCP),when the Re~pondent(s) erroneously failed to accept as tru~ factual allegations/accusations in the Relator's habeas corpus petition, 'that was amen-- ed,and with ~elator's exhibitation submitted,those factual assertions were nei- ther incredible 6n their face,nor clearly refuted by the trial Court's record;as Respondent intentionally failed to hold a hearing where those facts,acc~pted as true, 11 'ould have satisfied the basic requirements for relief(i.e.,stated a - [ ] prema facie case) ... Consequently,Relator has satisfied a sufficient showing,as well as making a complete and whole his entitlement to mandamus relief.State ex rel.Hill V.Pirtle,887 S.W.2d 921,926-927, & n.6,9(Tex.Cr.App.l994);State Ex rel Eidson VEdwards,793 S.W.2d 1,6-7(Tex.Cr.App.l990)(& case law citations). This TCCA's justices have JUrisdiction to issue the relator's requested writ of Mandamus i n t hi s cause sub j u d i c e , pursuant to Art i cl e 5 , § 5 A of the 'I' ex as Cons t i'"" tution and Article 4.04(TCCP). Wherefore,Premises duly considered,this writing Relator prays that the Texas Co- urt of Criminal Appeals JUstices will grant this Relator's application and issue a Writ of mandamus directing,George Gallaghes,the Chief Respondent,as JUdge pre- siding for the Order filed on ll/24/2015,in the 432nd Judicial District Court of Tarrant County Texas,to vacate it 1 s Order entered for Sharen Wilson and Andrea Jacobs proposed response to some application for a writ of habeas corpus filed on June 25,2015,as signed by said Wilson and Jacobs and then,their proposed mem- orandum and findings of facts were filed on ll/9/2015 .•. (a week after Joel Ayui- rre filed his amended motion,and that want of supplemental claims),and thus,iss- ue the writ of mandamus to nullify that Order entered by the Respondent; as well as any unseen Order(s) signad and entered by the int~uder JUdge presiding on 6/ 26/2015 ; or if Charles P.Reynolds,Tarrant County Criminal Magistrate(unkonwn if of Texas State ?),his Order must be stricken as void and also vacated,for lack of jutisdiction over the Subject-matter causes of action,and Parties of interest and even further invacating Orders,that Order held on 10/4/2012,under JUdge Rub- en Gonzalez,Junior,the hearing on Rejection of plea offer and all subsequent pro ceedings held under his and any Orders and JUdgment(s) prounced by him must be vacated as void ab inititi.Thus,those reJected plea offer proceedings under cause #12551950(& related casues) are issues of void information,for said Respondent.• (s) and judges were with their Courts,la~king subJect-matter jurisidction over this Relator's imposed charges.which the law clearly allows ~hen Prosecutors do violate the laws and their violations of the rul~ of law will thus subject thei~ Case(s) to reversal on appeal,and no judge/Respondent(s) should overlook the Pr- oscutorial misconduct,'which resulted in a denial of legal due process of law of the defendant!Id.at St~te ex rel.Eidson,793 S.W.2d 6 7 ... Executed on__/_f/4 this day of~!v., 2015: - s_. el Agui TDCJ/Mark Wayne Michael Unit,2664 F.M.2054, Tennessee Colony,Texas 75886 _ _..-- LV!_ , Certificate of se:vice and Declaration . I' .J o £./ 'IU")'41/'"cS- _,am an Inmate unlawfully and Illegally restrained and confind and against My will~by Edgar n~B~ker,Custodian,and senio~ Warden of the Mark Wyne Michael Prison Uriit,located at 2664 F.M.2054,Tennessee Colony,Texas 75~ 88£,within the County o£ Anderson of the State of Texas,~nd do affirm under pena- lty of perjury,that all I stated is true,correct,atcurate and complete to the be- st of My knowledge and recourses,and have provided the Respondent(s) of interest a copy of My writ of mandamus filed herein~by serving him,Mr.B~ker,a copy of the same, in person, via- the Michael Unit's mailroon depaFtment, as I drop~ sa. id copy off at their mailroom window and gave copy to mailroon Cler:k, On /0 this da~f /);.o.e~ ,2015, pursuant to 'l'ex. Civ.Prac. & Red .Code, §§132. 001-:132.00~ ~ , App Ica /Appellant 6.Plead. NO. C-432-010495-1255195-A NO. C-432-010496-1255195~B EX PARTE § IN THE 432"d JUDICIAL § § DISTRICT COURT OF § JOEL AGUIRRE § TARRANT COUNTY, TEXAS STATE'S RESPONSE TO APPLICATION FOR WRIT OF HABEAS CORPUS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW THE STATE OF TEXAS, by and through the Tarrant County Criminal District Attorney, and in opposition of the Application for Writ of Habeas Corpus respectfully states the following to the Court based on its information and belief: I. HISTORY OF THE CASE The applicant, JOEL AGUIRRE ("Applicant"), pled guilty, pursuant to an open plea to the jury, to two counts of aggravated assault with a deadly weapon, to- wit: a firearm, on October 17, 2012. See Judgments, No. 1255195D. The jury assessed punishment at two terms of twenty years confinement in the Texas Department of Criminal Justice- Institutional Division. See Judgments. The Second Court of Appeals affirmed the trial court's judgment on November 14, 2013. See Aguirre v. State, No. 02-12-00509-C~ 2013 WL 6046121 (Tex. App.- Fort Worth Nov. 14, 2013) (not designated for publication). COPY II. APPLICANT'S ALLEGATIONS Applicant alleges his confinement is illegal for the following reasons: (1) his guilty plea was not intelligent because he was advised that he would be eligible for parole after his flat time and good time equaled half his sentence; (2) he received ineffective assistance of appellate counsel; and (3) counsel failed to communicate a five year plea offer. See Application, p. 6-11 ill. NECESSITY FOR AN EVIDENTIARY HEARING & EXPANSION OF THE RECORD . There is a need for an expansion of the record; however, there is no need for an evidentiary hearing. An affidavit from Applicant's plea counsel, Hon. Jay. Caballero, is needed to address Applicant's allegations. Applicant need NOT be brought back to Tarrant County for a hearing. IV. ARGUMENT AND AUTHORITIES A. Applicable Law In a habeas corpus proceeding, the burden of proof is on the applicant. Ex parte Rains, 555 S.W.2d 478, 481 (Tex. Crim. App. 1977). An applicant "must prove by a pr~ponderance of the evidence that th~ error contributed to_ his conviction ,(d;-<.f ,rt;,,;tc1 or punishment." Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). In order to prevail, the applicant must present facts that, if true, would entitle him to the 2 --r-~ .~<;· (~·hj.. 1 relief requested. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985). Relief may be denied if the applicant states only conclusions, and not specific facts. ';::';~_:;;-::.;,:,.,1 Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an applicant's sworn allegations alone are not sufficient to prove his claims. Ex parte B. An affidavit is required before Applicant's application may be resolved. Applicant asserts that he received ineffective assistance of counsel and that his plea was not voluntary or intelligent as a result because ( 1) he was improperly advised about his parole eligibility and (2) counsel failed to convey the five year plea offer. See Application, p. 6-7, 10-11. In order to evaluate the merits of a claim of ineffective assistance of counsel, the record must demonstrate an explanation of or the motivation behind counsel's actions. That is, whether those. actions were the result of strategic design or negligent J(~verser-f. · conduct. Thompson v. State,-9-S.W.3d '808, 814 (Tex. Crim. App. 1999). Applicant has not attached to his application any affidavit by counsel explaining or justifying the alleged deficient conduct. As such, it may be necessary for counsel to respond to these claims. In order to determine the merits of these claims, it is necessary for the Court to designate this issue for future resolution. See McCree v. Hampton, 824 S. W.2d 578, .!lre:u{1_ ov71f0 -;;(e.,; ~1J..I/.zMu.J- t-/.e./,~.ef re.-j«e.r;le//tJ'!'e"(y_J< ! e;~vs '7€ f.IJJr~>~r/ic!_;' 3 579 (Tex. Crim. App. 1992)(A trial court must designate all issues requiring future resolution within thirty-five days after the filing of a petition for habeas corpus in order to retain its jurisdiction over the case.); See also Tex. Code Crim. P. art. 11.07 §3(c), (d). Specifically, the Court may wish to order an affidavit from Applicant's plea counsel, Hon. Jay Caballero, addressing Applicant's allegations and the alleged deficient conduct. Applicant's application should be DESIGNATED for future resolution. V. CONCLUSION Wherefore, premises considered, the State prays that this Court ORDER an affidavit from Hon. Jay Caballero responding to Applicant's allegations that his plea was involuntary due to ineffective assistance of counsel and DESIGNATE Applicant's application for future resolution. Respectfully submitted, SHAREN WILSGN Criminal District Attorney Tarrant County Andrea Jacobs, Assistant Criminal District Attorney - -··------·--- -------~-------- ---------------- -------- --------· ·-- . State Bar No. 24037596 -----------------------~--- 40 1 West Belknap Fort Worth, TX 76196-0201 Phone: 817/884-1687 Facsimile: 817/884-1672 I. CERTIFICATE OF SERVICE A true copy of the above has been mailed to Applicant, Mr. Joel Aguirre, TDCJ-ID# 01817332, Michael Unit, 2664 FM 2054, Tennessee Colony, Texas 75886 on the 25th day of June, 2015. Andrea Jacobs CERTIFICATE OF COMPLIANCE I certify that the total number of words in this State's Response is 1060 words as determined by Microsoft Office Word 2010. 5 / NO. C-432-010495-1255195-A NO. C-432-010496-1255195-B EX PARTE § IN THE 432"d JUDICIAL § § DISTRICT COURT OF § JOEL AGUIRRE § TARRANT COUNTY, TEXAS MEMORANDUM The applicant, JOEL AGUIRRE ("Applicant"), alleges his plea was involuntary and that he received ineffective assistance of counsel. See Application, p. 6-7, 10-11. However, Applicant presents no affidavit or statement from counsel explaining the alleged misconduct. Thus, there are controverted, previously unresolved facts which are material to the legality of Applicant's confinement requiring designation of the issue for future resolution. ORDER ·1. Applicant's application is DESIGNATED for future resolution. 2. An affidavit is ORDERED from Hon. Jay Caballero, Applicant's plea counsel in cause number 1255195D, addressing Applicant's allegations of ineffective assistance of counsel and involuntary plea. 3. Hon. Caballero shall submit an original and three copies of his affidavit to the post-conviction writ clerk by August 25, 2015. The clerk shall ·· ---~-. -- --··----------------then-mail.a.copyoftlie-affidavifto-App1icani m1d-:fillWat: