75j mo-ofr
February 6th,2015
RECEIVED IN
Abel Acosta,Clerk COURT OF CRIMINAL APPEALS
Court of Criminal fippeals
P.O.Box 12308,Capital Station
Austin,Texas 78711
FEB. 10 2015
RE :Tr.Ct.No.2007-CR-9932, Application For Writ of Mandamus to^e'f1?ef?*C8@r
Dear Clerk:
Enclosed please find Movant's Writ Of Mandamus to be filed with the Court
at its earliest time available, Thank you.
I am including the "INDICTMENT" as exhibit of the Charge Movant's case.
Your assistance in this matter is greatly appreciated.
Sincerely,
7-
/S/TERRY TMfoOR_TDCJ#&607771
Easthamnfnit
2665 Prison Rd.#l
Lovelady,Texas 75851
Relator Pro se
1 of 1
NO.
)
TERRY TAYLOR § IN THE 144TH DISTRICT COURT
TDCJ#1607771,
RELATOR
V. § OF BEXAR COUNTY , TEXAS
DONNA KAY McKINNEY,
COUNTY DISTRICT CLERK
IN HER OFFICIAL CAPACITY, §
RESPONDENT.
PLAINTIFF'S ORIGINAL APPLICATION WRIT OF MANDBBOS
r TO THE HONORABLE JUDGES OF COURT OF CRIMINAL APPEALS:
COMES NOW,TERRY TAYLOR,TDCJ#1607771,Relator,pro se in the above-styled
and numbered cause of action and files this Original Application For Writ
of Mandamus,pursuant to Article 64.01(c),TEXAS CODE CRIMINAL PROCEDURE,and
would show the Court the following:
I.
RELATOR
TERRY TAYLOR,TDCJ#1607771,is an offender incarcerated in the Texas Depart
ment of Criminal Justice-CID, and appearing pro se,who can be located at Eastham
Unit,2665 Prison Rd.#l,Lovelady,Texas.75851.
• Relator has exhausted his remedies and has no other adequate remedy at
law.
The act sought to be compelled is ministerial /not discretionary in nature.
TCCCP.64.01(c) requires Respondent to file Relator's preliminary "MOTION
FOR APPOINTMENT' OF COUNSEL,to assist Relator in filing his "MOTION FOR DNA
TESTING" ,any answers filed,and a certificate reciting the date upon which
that finding was made, if the convicting court decides that there are no
issues to be resolved. No copy of the Motion for Appointment of Counsel,any
answers filed,and a certificate reciting the date upon which that finding
was made and have been transmitted to the Relator DENIED of the NOTICE from
the District COurt. As required by the MINISTERIAL DUTIES of the District
Clerk's Office.
II.
Respondent,Donna Kay McKinney, in her capacity as District Clerk of Bexar
County,Texas has a Ministerial Duty to recieve and file all papers in a.criminal
proceedings and perform all other duties imposed on the Clerk by law pursuant
to TCCP art.2.21, and is responsible under this article to comply with and
file all papers in criminal proceedings as in the instant case Relator never
recieved any answers of his motion for appointment of counsel being DENIED
which was filed An October 14,2014.
The District Court of 144th Bexar County,Texas is also in violation of
ministerial duties in DENYING Relator's "MOTION FOR APPOINTMENT OF COUNSEL"
as per the literal reading of Chapter 64.01(c),plain language.This is a pre
liminary motion in order to have an attorney appointed to assist Relator
with a motion for DNA testing once the attorney has been appointed.
III.
Relator has gone well beyond any requirements or obligations imposed upon
him by the T.C.C.P. In contrast to Relator's efforts,respondent has wholly
failed to comply with the Texas Code Criminal Procedure art.2.21,is acting
in BAD FAITH ,and has also failed to afford, Relator the professional and
common courtesy of any written responses to his correspondence and request.
If Respondent violates this procedure, ministerial duties,and thus the laws
of the state.Because Relator's letters,Relator has repeatedly put Respondent
on NOTICE that Relator seeks the COPIES of date of DENIAL of Relator's pre
liminary "MOTION FOR APPOINTMENT OF COUNSEL" filed in the District COurt
of 144th Bexar County,Texas.As. per WINTER-V-PRESIDING JUDGE,118 SW3d 775,
[1-3] Furthermore,it says the Court SHALL appoint counsel, if the defendant
informs the court he intends to file a motion under Chapter 64,and the Court
finds him, indigent,Id. per the literal reading of the statute,the defendant
need not ask even to be appointed an attorney. Relator herein met all the
criteria for. obtaining DNA testing of evidence under Chapter 64 in all of
the T.C.C.P. and Court of Criminal Appeals held: "Theissue before us is,when
defendant has met the test for appointment of counsel under 64 of the Texas
Code Criminal Procedure,whether the convicting court has discretion to "DENY"
appointment of counsel. We hold that,notwithstanding the improbability of
obtaining relief, appointment of counsel is mandatory.The Court further held at
page 775,Winter-V-Presiding Judge,supra Texas Code Criminal Procedure art.64.01
(c)(Vernon Supp.2009),that the article says a person is ENTITLED to counsel
under that chapter Id. and the court SHALL appoint counsel for defendant
if the defendant informs the Court he intends to file a motion under 64,and
the court finds him indigent. Id. per the literal reading of the statute,the
defendant need not even ask to be appointed an attorney.The court MUST APPOINT
if the TWO (2) basic requirements of Article 64.01(c),T.C.C.P See: Neveu-
V-Culver,105 SW3d 641,642(Tex.Crim.App.2003),defendant TERRY TAYLOR filed
a motion informing the court that he is indigent by submitting a declaration
of indeigency under penalty of perjury. See In re Bodriguez,77 SW3d 461.
Furthermore, In Robert Whitfield,430 SW3d 405(Tex.Crim.App.2014),Stated:
" But Judge's refusal to appoint counsel for post-conviction dna testing
is not an immediate appeallable order under 64.05,because it is preliminary
decision that is appropiately reviewed as alleged ERROR after the motion
has been denied."
PRAYER
WHEREFORE PREMISES,CONSIDERED^ Relator TERRY TAYLOR,pro se,respectfully
request a finding that the Respondent did not comply with the ministerial
duties upon her official capacity when she did not give NOTICE to the Relator
Mtotion For Appoitment of Counsel and Relator prays for an order directing
respondent to any answers filed, and certificates reciting the date of the
sq;?
DENIAL of said motion filed and Relator^* prays that the Court of Criminal
Appeals compells the District Court to Appoint Counsel for Relator to file
his Motion for DNA testing in this Capital Murder-other felony charge,and
any other relief Relator is entitled to by the laws governing this Statutes.
/S/TERRYOfAYLOR-TDCJ #1607771
Pro se Litigant
CERTIFICATE OF SERVICE
I,TERRY TAYLOR,certify that a true and correct copy of the foregoing document
was served on the Court Clerk,for the 144th District Court of Bexar County,Texas
Contemporaneous with this delivery, a copy was delivered to the District
Attoney of Bexar County representing the State of Texas and assigned to the
above-mentioned District Court.
Executed this 6th day of February,2015.
/S/TERRY^AYLgR-TDCJ'-tl607771
Relator Pro se
STATE OF TEXAS ;§
HOUSTON COUNTY,TEXAS §
AFFIDAVIT
I,TERRY TAYLOR,being presently incARCERATED AT THEEastharn Unit,2665 Prison
RD.#l,Lovelady,Texas 75851,do declare under penalty of perjury the facts
and allegations in the above APPLICATION FOR WRIT OF MANDAMUS are true and
correct.
Executed this 6th day of February,. 2015.
/S/TERRY <$AYLOR-TDCJ#1607771
RRY<3#YL0R-'
RELATOR/AFFIANT
CIVIL PRACTICE AND REMEDIES CODE, TITLE 6, CHAPTER 132 V.T.C.A..
A WRITTEN UNSWORN DECLARATION MADE AS PROVIDED BY THIS CHAPTER BY AN INMATE
IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE-CID MAY USE IN LIEU OF AN OATH
REQUIRED TO BE TAKEN BEFORE A NOTARY PUBLIC.
NO.
TERRY TAYLOR § IN THE 144TH JUDICIAL
TDCJ#1607771
RELATOR §
VS. § DISTRICT COURT OF
DONNA KAY McKINNEY,
COUNTY DISTRICT CLERK
IN HER OFFICIAL CAPACITY, BEXAR COUNTY , TEXAS
RESPONDENT.
§
ORDER
On this day,came to be heard the following Relator's Application for Writ
of Mandamus and it appears to the Court that the same should be:
GRANTED
IT IS THEREFORE ORDERED THAT the District Clerk shall immediately transmit
to Relator a copy of the DENIAL of Relator's preliminary Motion For Appoint
ment of Counsel,any answers filed,and a certificate reciting the date upon
which that transmittal was made.
SIGNED on this the _day of ,2015.
PRESIDING JUDGE
1 of 1
FILED
CLERK'S ORIGINAL
O'CLOCK. M
Name: TERRY TAYLOR -"MOV 0 1 2007
MARGARET G. MONTEMAYOR
Address: 415 Bundy, San Antonio, TX 78220-2303 DISTRICT CLERK
iEXARCOiJNTY, TEXAS
Complainant: Mariano Sanchez
DEPUT
CoDefendants:
Offense Code/Charge: 090114 - CAPITAL MURDER - OTHER FELONY
GJ: 476675 PH Court: Court #:
JN #: 1261110-1 SID#:586269 Cause#
2007-CR-99 32
Witness: State's Attorney _____^_„_
TRUE BILL OF INDICTMENT
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS, the Grand Jury of Bexar County, State of
Texas, duly organized, empanelled and sworn as such at the September term, A.D., 2007, of the 399] H
Judicial District Court of said County, in said Court, at said term, do present in and to said Court that in the
County and State aforesaid, and anterior to the presentment of this indictment, and:
on or about the 11th Day of July, 2007, TERRY TAYLOR, hereinafter referred to as defendant did intentionally
-ause the death of an individual, namely, Mariano Sanchez, hereinafter referred to as complainant by
SHOOTNG THE: COMPLAINANT WITH ADEADLY WEAPON, NAMELY, AFIREARM, and the defendant was
in the course of committing or attempting to commit the offense of ROBBERY OF Mariano Sanchez;
AGAINST THE PEACE AND DIGNITY OF THE STATI
reman of the Grand Jury
INDICTMENT - CLERK'S ORIGINAL