ACCEPTED
02-15-00072-CV
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
3/20/2015 9:13:37 AM
DEBRA SPISAK
CLERK
IN THE COURT OF APPEALS
SECOND COURT OF APPEALS DISTRICT OF TEXAS
FILED IN
2nd COURT OF APPEALS
FORT WORTH, TEXAS
03/20/2015 9:13:37 AM
DEBRA SPISAK
IN RE § Clerk
§
§
§ NO. 02-15-00072-CV
§
THEODIS DODSON, JR, §
RELATOR §
STATE'S RESPONSE TO PETITION FOR WRIT OF MANDAMUS
COMES NOW, the Real Party in Interest, the State of Texas, by and
through Hon. Sharen Wilson, the Criminal District Attorney of Tarrant
County, Texas, and hereby responds to the writ of mandamus of THEODIS
DODSON (“Relator”).
I.
IDENTITY OF PARTIES AND COUNSEL
Relator in the present cause is THEODIS DODSON, who is seeking
the trial court to rule on his request for a free copy of the reporter’s record.
The respondent is the Criminal District Court Number One of Tarrant
County, Texas (“trial court”). The real party in interest is Sharen Wilson,
the Criminal District Attorney in Tarrant County, Texas (herein after
1
“State”).
Relator is proceeding pro se on this petition for writ of mandamus.
The real party in interest is represented by Andréa Jacobs, 401 W. Belknap,
Fort Worth, Texas 76196-0201.
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II.
TABLE OF CONTENTS
IDENTITY OF THE PARTIES AND COUNSEL …………………………1
INDEX OF AUTHORITIES ………………………………………………. 4
STATEMENT OF THE CASE …………………………………………..…6
STATE’S RESPONSE TO ISSUE PRESENTED ……………………...….9
ARGUMENT .……………………………………………………………..10
Petition should be DENIED because Relator has failed to
demonstrate that his motion has been filed or brought to the
attention of the trial court……………………………………..... ..…10
CONCLUSION AND PRAYER ………………………………………….12
CERTIFICATE OF SERVICE …………………………………………..13
CERTIFICATE OF COMPLIANCE ……………………………………14
EXHIBITS ……………………………………………………………..A-H
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III.
INDEX OF AUTHORITIES
STATE CASES PAGE(S)
TEXAS COURT OF CRIMINAL APPEALS
Dickens v. Second Court of Appeals,
727 S.W.2d 542 (Tex. Crim. App. 1987) …………………... 12
TEXAS SUPREME COURT
Canadian Helicopters Ltd. v. Wittig,
876 S.W.2d 304 (Tex. 1994) ……………………………….. 10
Johnson v. Fourth Court of Appeals,
700 S.W.2d 916 (Tex. 1985) ………………………………. 10
O’Connor v. First Court of Appeals,
837 S.W.2d 94 (Tex. 1992) ……………………………….. 11
Stoner v. Massey,
586 S.W.2d 843 (Tex. 1979) ……………………………. 10,12
TEXAS COURT OF APPEALS
In re Chavez,
62 S.W.3d 225
(Tex. App. – Amarillo 2001, orig. proceeding) …………….. 11
In re Davidson, 153 S.W.3d 490
(Tex. App. – Amarillo 2004) ……………………………….. 11
In re Villarreal,
96 S.W.3d 708
(Tex. App. – Amarillo 2003) ……………………………….. 12
4
TEXAS STATUTES AND RULES
Tex. R. App. P. 9.4 (e) ……………………………………………. 14
Tex. R. App. P. 9.4 (i) …………………………………………….. 14
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IV.
STATEMENT OF THE CASE
Relator pled guilty, pursuant to a plea bargain agreement, to the
capital offense of capital murder on March 4, 2008. See Judgment, No.
1072134D. In accordance with the plea agreement, the trial court sentenced
Relator to life without parole. See Judgment.
On December 18, 2008, this Court dismissed Relator’s appeal for
want of jurisdiction. See Dodson v. State, No. 02-08-082-CR, 2008 WL
5265001 (Tex. App. – Fort Worth, Dec. 18, 2008) (op. on reh’g) (not
designated for publication). Mandate issued on February 3, 2009. See
Exhibit A: Record of Criminal Actions, No. 1072134D, Vol. 5, p. 1.
Relator filed two applications for writ of habeas corpus while his
direct appeal was pending. See Ex parte Theodis Dodson, Nos. WR-50,689-
04, 05 (Tex. Crim. App. May 21, 2008) (White Card). Both applications
were dismissed. Id.
Relator’s third application for writ of habeas corpus was denied
without written order on trial court’s findings without a hearing on August
25, 2010. See Ex parte Theodis Dodson, Nos. WR-50,689-11 (Tex. Crim.
App. Aug. 25, 2010) (White Card).
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Relator filed a motion for DNA testing on December 27, 2013. See
Exhibit A, Vol. 5, p. 1. That motion was denied on April 12, 2014. See
Exhibit A, Vol. 5, p. 2.
Even though Relator includes a letter from Judge Evans that he would
forward Relator’s request, there is no evidence that a motion for a free copy
of the reporter’s record has been filed in the trial court. See Exhibit A;
Exhibit B: Transaction Information Display, No. CDC1-1072134-00;
Exhibit C: Motion for Sanctions, Nos. 1071695D, 1072134D; Exhibit D:
Second Motion for Sanctions, Nos. 1071695D, 1072134D; Exhibit E:
Objection to State’s Response and Findings of Fact, Nos. 1071695D,
1072134D; Exhibit F: Motion [for] Leave to File to Compel This Honorable
Court to Compel the Honorable Court of CDC1 to do a Ministerial Act to
Appoint an Attorney Under Code Crim. Proc. 64.01(c), Nos. 1071695D,
1072134D; Exhibit G: Request for Disclosure Pursuant to Rule 194 Within
30 Days, Nos. 1071695D, 1072134D; Exhibit H: Letter, Dated October 20,
2014. There is no evidence that Relator’s motion was presented to the trial
court. See Exhibit A; Exhibit B; Exhibit C; Exhibit D; Exhibit E; Exhibit F;
Exhibit G; Exhibit H.
On November 6, 2014, Relator inquired about the status of his request
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for a record. See Exhibit H.
On March 4, 2015, Relator filed his petition for writ of mandamus
seeking this Court to order the trial court to rule on his motion for free
records. See Leave to File Writ of Mandamus (“Petition”), No. 02-15-072-
CV, p. 5. On March 10, 2015, this Court ordered the real party in interest to
file a response. See Order, No. 02-15-072-CV, p. 1.
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V.
STATE’S RESPONSE TO ISSUE PRESENTED
This Court should deny Relator’s petition for writ of mandamus
because there is no evidence in the record that a motion for free
record has been filed or brought to the attention of the trial
court.
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VI.
ARGUMENTS
A. Standard of Review
Mandamus is an extraordinary remedy, available only in limited
circumstances. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305
(Tex. 1994). It is the burden of the relator to show entitlement to the relief
being requested. See generally Johnson v. Fourth Court of Appeals, 700
S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). In order to be entitled to
relief, the relator must show the following: (1) a legal duty to perform; (2) a
demand for performance; and (3) a refusal to act. See Stoner v. Massey, 586
S.W.2d 843, 846 (Tex. 1979).
B. Relator’s Petition should be DENIED because Relator has failed
to demonstrate that his motion has been filed or brought to the
attention of the trial court.
Relator attaches a letter from Judge Evans that states:
I have received your request. I don’t have jurisdiction to rule
on your request. I [am] copying the trial judge with this letter
and sending her the original of your request.
See Petition, Exhibit A: Evans Letter, Dated December 10, 2014. However,
the letter does not indicate what the request was or whether the trial court
10
ever received it. See Petition, Exhibit A. According to the Tarrant County
District Clerk records, no motion for a free reporter’s record was filed. See
Exhibit A; Exhibit B; Exhibit C; Exhibit D; Exhibit E; Exhibit F; Exhibit G;
Exhibit H. Relator refers to the motion in the November 6, 2014, letter;
however, that letter does nothing more than inquire about the existence of
the motion. See Exhibit H. There is no evidence that the trial court has ever
received the motion.
It is well settled that a trial court is not required to consider a motion
when it has not been presented with said motion. O’Connor v. First Court
of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (“Mandamus will issue when
there is a legal duty to perform a non-discretionary act, a demand for
performance, and a refusal.”); see also In re Chavez, 62 S.W.3d 225, 228
(Tex. App. – Amarillo 2001, orig. proceeding) (“Indeed, one can hardly be
faulted for doing nothing if he were never aware of the need to act.”). Only
“[s]howing that a motion was filed with the court clerk does not constitute
[sufficient] proof that the motion was brought to the trial court's attention or
presented to the trial court with a request for a ruling.” In re Davidson, 153
S.W.3d 490, 491 (Tex. App. – Amarillo 2004) (citations omitted).
Here there is no evidence that the motion has been filed or presented
11
to the trial court. Therefore, Relator has failed to establish that the trial court
has ever been presented the motion for a ruling.
The burden is on Relator to show that the district court knew of its
duty to act and neglected to perform it. See In re Villarreal, 96 S.W.3d 708,
710-711 (Tex. App. – Amarillo 2003). Here, Relator has failed to
demonstrate that his motion for a free reporter’s record was ever presented
to the trial court. Relator has failed to meet his burden. Id. Relator has thus
failed to prove that he is entitled to relief. See Stoner v. Massey, 586 S.W.2d
at 846. Relator’s Petition should be DENIED.
VII.
CONCLUSION AND PRAYER
The issuance of a mandamus is never a matter of right, but rests in the
sound discretion of the Court. Dickens v. Second Court of Appeals, 727
S.W.2d 542, 549 (Tex. Crim. App. 1987). Here, Relator’s Petition should be
denied because he has failed to show that the motion for free record was
ever presented to the trial court. Thus, Relator has failed to demonstrate that
the trial court has failed to act.
Relator’s Petition should be DENIED.
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WHEREFORE, PREMISES CONSIDERED, the State prays the
Court deny Relator’s Leave to File Writ of Mandamus.
Respectfully submitted,
SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas
/s/ Andréa Jacobs_______________
ANDRÉA JACOBS, Assistant
Criminal District Attorney
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
FAX (817) 884-1672
State Bar No. 24037596
CERTIFICATE OF SERVICE
A true copy of the above response has been mailed to Relator, Mr.
Theodis Dodson, Jr., TDCJ-ID # 1490901, Connally Unit, 899 FM 632,
Kenedy, Texas 78119, and delivered to the respondent, the Hon. Elizabeth
Beach, Judge, Criminal District Court Number One, 401 W. Belknap, Fort
Worth, Texas 76196, on this the 20th of March, 2015.
/s/ Andréa Jacobs_______________
ANDRÉA JACOBS
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CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the word-count limitations of Tex. R. App. P. 9.4(i)
because it contains 1652 words as computed by Word 2010, the computer
program used to prepare the document.
/s/ Andréa Jacobs_______________
ANDRÉA JACOBS
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EXHIBIT
“A”
EXHIBIT
“B”
EXHIBIT
“C”
EXHIBIT
“D”
EXHIBIT
“E”
EXHIBIT
“F”
EXHIBIT
“G”
EXHIBIT
“H”