WR-83,044-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/23/2015 3:21:17 PM
Accepted 3/24/2015 2:47:40 PM
Returnable to the Court of Criminal Appeals of Texas ABEL ACOSTA CLERK
Wr__________ RECEIVED
COURT OF CRIMINAL APPEALS
3/24/2015
ABEL ACOSTA, CLERK
In the 183rd District Court of Harris County, Texas
087941001010 - The State of Texas vs. GARCIA, RODRIGO
(Court 183)
WRIT COUNSEL’S MOTION TO THE COURT OF CRIMINAL APPEALS
FOR LEAVE TO SUPPLEMENT OR AMEND THE APPLICATION FOR
POST-CONVICTION WRIT OF HABEAS CORPUS, PURSUANT TO
TEX.CODE CRIM.P.art.11.07, AFTER TRANSCRIPTION OF
REPORTER’S NOTES (WRIT COUNSEL DID NOT TRY CASE. NO
APPEAL WAS TAKEN.)
* * * * * * * * * *
Larry Warner
Attorney at Law
3109 Banyan Circle
Harlingen, Tx 78550
Phone (956)230-0361
Fax (866) 408-1968
State Bar of Texas #20871500
email: office@larrywarner.com
website: larrywarner.com
Bd.Cert.Crim.Law, TBLS (1983)
Member of the Bar, Supreme
Court of the United
States(1984)
Attorney for Applicant
Page 1 of 6
To the Honorable Presiding Judge and Associate Judges
of the Court of Criminal Appeals of Texas:
Applicant presents this Writ Counsel’s Motion to
the Court of Criminal Appeals for Leave to Supplement or
Amend the Application for Post-conviction Writ of Habeas
Corpus, Pursuant to Tex.Code Crim.P.art.11.07, after
Transcription of Reporter’s Notes, as follows:
1. Applicant has filed an application for post-
conviction writ of habeas corpus in the convicting court,
the 183rd District Court of Harris County assailing the
noted conviction. It is pending.
2. Applicant is seeking to have the reporter’s notes
transcribed.
3. Writ Counsel did not try the case.
4. There was no appeal, so there is no reporter’s
record, yet.
5. Applicant seeks the leave of the Court of Criminal
Appeals to supplement or to amend his instated
application once the reporter’s record is complete.
6. This Court previously allowed litigants to file
Page 2 of 6
“skeletal” applications when the Antiterrorism and
Effective Death Penalty Act had just begun to come into
force, so that the federal statute of limitations on
filing federal “motions to vacate sentence” (habeas
corpus) would be tolled. Subsequent amendments and
supplements were allowed to those “skeletal”
applications:
“[T}his Court's order of April 22, 1997... gave
him permission to file a skeletal application so
that the time limits of the federal
Antiterrorism and Effective Death Penalty Act
could be tolled.*** His motion and our order
contemplated that the skeletal application would
be supplemented, and our order specified, “Any
supplemented application shall be deemed an
original, not a successor, application.” Ex
ParteSmith,977 S.W.2d610fn1(Tex.Crim.App.,EnBanc
1998)
7. Applicant simply cites Smith to show that this
Court has indeed allowed supplementation of applications
for post-conviction habeas corpus. There is no question
here of the tolling of the federal statute of limitation
on “motions to vacate sentence” . Applicant, however,
does seek to avoid a claim of laches and files his
application before the reporter’s notes have been
Page 3 of 6
transcribed.
The Court of Criminal Appeals should use its
discretion to allow supplementation or amendment of the
instant application for habeas corpus because the only
difference between Smith’s situation and Garcia’s is that
Smith knew exactly when time would run out and Garcia is
left with the ephemeral uncertainty of laches and is thus
impelled to file his application without the benefit of
a reporter’s record. See: “[T]he length of delay alone
will not constitute either unreasonableness of delay or
prejudice.”Ex Parte Carrio,992S.W.2d
486,488hn2(Tex.Crim.App.1999) And more immediately: Ex
P a r t e P e r e z , 3 9 8 S . W . 2 d
206,212hn5(Tex.Crim.App.203)[common law rather than
federal standard of Carrio applies for laches]
Conclusion and request for relief
The Court of Criminal Appeals should grant Applicant
leave to supplement or to amend his Application once the
reporter’s record is prepared. Smith was allowed an
opportunity to supplement a skeletal application to avoid
Page 4 of 6
a statute of limitations. Garcia should be allowed to
supplement or amend, since he has filed before the record
is complete in order to avoid laches.
RESPECTFULLY SUBMITTED
MARCH 23, 2015
BY:
/s/Larry Warner
Larry Warner
Counsel for Defendant
3109 Banyan Circle
Harlingen, Texas 78550
Phone (956)230-0361
Fax (866)408-1968
Email: Office@larrywarner.com
Website: www.larrywarner.com
Texas Bar#20871500;USDC,SDTX
1230; Member, Bar of the
Supreme Court of the United
States (1984)
Board Certified, Criminal Law,
Texas Board of Legal
Specialization(1983)
Page 5 of 6
Certificate of Service
I sent a true copy of this Motion for Leave to Use
Civil Remedy in Habeas Corpus Proceeding and this Motion
to Produce Reporter's Notes of Trial to the Harris County
District Attorney Office at 1201 Franklin Street, Suite
600, Houston, Texas 77002-1923 by USPS on MARCH 23, 2015.
RESPECTFULLY SUBMITTED
MARCH 23, 2015
BY:
/s/Larry Warner
Larry Warner
Counsel for Rodrigo Garcia
Page 6 of 6