WR-83,783-01
COURT OF CRIMINAL APPEALS
WR-83,783-01 AUSTIN, TEXAS
Transmitted 9/3/2015 1:36:05 PM
Accepted 9/3/2015 1:44:55 PM
I N T H E C O U R T OF CRIMINAL APPEALS ABEL ACOSTA
CLERK
OF TEXAS
RECEIVED
COURT OF CRIMINAL APPEALS
9/3/2015
I N RE T H O M A S A L L E N S I M O N , Relator ABEL ACOSTA, CLERK
O N A P P L I C A T I O N FOR A W R I T OF M A N D A M U S
I N CAUSE N O . 42908 I N T H E 424™ D I S T R I C T C O U R T
FROM BURNET COUNTY
RESPONSE OF
Hon. Wiley B. ^^Sonny" McAfee, District Attorney
Real Party i n Interest
OFFICE O F D I S T R I C T A T T O R N E Y
33^'' and 424'^ J U D I C L ^ D I S T R I C T S
Wiley B. McAfee, District Attorney
P. O. Box 725, Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
g.bunyard@co.llano.tx,us
By: GaryW.Bunyard
Assistant District Attorney
State Bar N o . 03353500
A T T O R N E Y FOR REAL PARTY I N I N T E R E S T
WILEY B. " S O N N Y " McAFEE, D I S T R I C T A T T O R N E Y
September 3, 2015
Oral Argument is Waived
Identity Of The Parties
Trial Court/Respondent
Honorable Evan Stubbs
424'^ Judicial District
Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74
Burnet, T X 78611
424coordinator@dcourttexas.org
Counsel for Real Party i n Interest - Wiley B . "Sonny" McAfee, District Attorney
Gary W . Bunyard
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar N o . 03353500
g.bunyard@co.llano.tx.us
Real Party i n Interest - Gary E. Prust
Gary E. Prust
Attorney at Law
1607 Nueces St.
Austin, T X 78701
(512) 469-0092
gary@prustlaw.com
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Counsel for Relator
Tracy D . Cluck
Attorney at Law
12600 H i l l Country Blvd., Suite R-275
Austin, T K 78738
(513) 329-2615
State Bar N o . 00787254
tracy@tracyclucklawyer.com
O f Counsel for Relator
L. T . "Butch" Bradt
Attorney at Law
14015 Southwest Freeway, Suite 4
Sugar Land, T X 77478-3500
(281) 201-0700
State Bar N o . 02841600
ltbradt@flash.net
Relator
Thomas Allen Simon
SO #26546
Burnet County Jail
900 County Lane
Burnet, T X 78611
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Table Of Contents
Page
Index o f Authorities vi
Statement o f the Case 1
Statement on Oral Argument 1
Statement on Jurisdiction 1
Response to Issues Presented 2
Statement o f the Facts 3
Summary o f the Argument - Response to Issue N o . 1.
l.a. The Respondent has the authority to remove appointed
counsel when the Respondent has made a finding o f
good cause that is entered on the record 5
l.b. Where the Respondent has authority to remove
appointed counsel for good cause that is entered
on the record Mandamus w i l l not lie 5
Argument on Response to Issue N o . 1.
1.1. Principals o f Law 7
1.2. Applicable Facts 8
1.3. Discussion and Conclusion 8
iv
Summary o f the Argument - Response to Issue N o . 2.
2.a. The Real Party i n Interest neither joins nor opposes
Issue N o . 2 because the Court's order entered on
August 26, 2015, to stay further proceedings i n the
underlying cause until this application for writ o f
mandamus is resolved effectively renders this
Issue moot 10
Argument on Response to Issue N o . 2.
2.1. None Presented by Real Party i n Interest 10
Prayer for Relief 11
Certificate o f Word Count 11
Certificate o f Service 12
V
Index Of Authorities
Case Law Page
Braxton v. Dunn, 803 S.W.2cl 318, 320 (Tex.Crim.App. 1991). 7
Ex parte Billy Burl Clayton, 171 Tex. C r i m . 398;
350 S.W.2d 926 (Tex. C r i m . App. 1961) 8
Stotts V. Wisser, 894 S.W.2d 366 (Tex. C r i m . App. 1995) 9
Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424
(Tex.Crim.App. 1981) 7, 9
TPwmas v. State, 550 S.W.2d 64, 68 (Tex. C r i m . App. 1977) 7
Constitutions
U.S. Const, amend. V I 7
U.S. Const, amend. X I V 7
Statutes/Rules
Tex. Code C r i m . Proc. Art. 26.04 7
Tex. Code C r i m . Proc. Art. 26.04 (j) (2) 7, 8
Tex. Disc. R. of Prof. Cond. Rule 303 (a) (1) 8
vi
statement Of The Case
Counsel for the Relator has adequately set forth the Statement o f the Case except
that Relator was arrested and later indicted for the offenses o f Sexual Assault and
Aggravated Assault Causing Serious Bodily Injury. Relator was never charged nor
indicted for Aggravated Sexual Assault. These charges are pending and awaiting
trial subject to the resolution o f this application for writ o f mandamus.
Statement on Oral Argument
The undersigned waives Oral Argument. The undersigned does not believe
that Oral Argument w i l l be beneficial for this case for the reason that the issues are
straight forward and lack any novel or complex nuances. Should the Court believe
that Oral Argument w i l l assist the Court i n any way, the undersigned w i l l gladly
accommodate the Court.
Statement on Jurisdiction
While not conceding the right to relief. Real Party I n Interest acknowledges the
jurisdiction o f this Court as set forth by Counsel for Relator.
1
R e s p o n s e To Issues Presented
Response T o Issue N o . 1:
l.a. The Respondent has the authority to remove appointed counsel when the
trial court has made a finding of good cause that is entered on the record.
1. b. Where the Respondent has authority to remove appointed counsel for
good cause that is entered on the record Mandamus w i l l not lie.
Response to Issue N o . 2:
2. a. The Real Party i n Interest neither joins nor opposes Issue N o . 2 because
the Court's order entered on August 26, 2015, to stay further proceedings
in the underlying cause until this application for w r i t o f mandamus is
resolved effectively renders this Issue moot.
2
statement Of TIte Facts
The Relator was arrested on March 24, 2014, for two counts o f Sexual Assault
and one count of Aggravated Assault Causing Serious Bodily Injury. The Relater
is not now and has never been charged w i t h Aggravated Sexual Assault i n regard to
this case as is alleged i n the Petition for Mandamus. The Respondent appointed
Tracy D . Cluck on April 8,2014, to represent the Relator on these charges. A duly
empaneled Grand Jury then returned an Indictment on June 3, 2014, charging the
Relator w i t h two counts o f Sexual Assault and one count o f Aggravated Assault
Causing Serious Bodily Injury.
As described by Counsel for the Relator, Tracy D . Cluck filed ex parte motions
seeking funds for the employment of a medical expert and for additional funds for
investigative services. The Respondent called for an ex parte hearing on these
motions. RR Vol. 1 Page 4. Present at this hearing was Tracy D . Cluck and the
Relator. RR Vol. 1 Page 4. I n presenting the reasons for the funds being requested
Tracy D . Cluck informed the Respondent that he would not be able to provide the
Relator effective assistance of counsel without the funds. RR Vol. 1 Pages 4 - 8 .
In making the decision to remove Tracy D . Cluck as counsel for the Relator, the
3
Respondent stated that the Respondent was not going to put M r . Cluck i n a position
where he would feel like he was being ineffective. RR Vol. 1 Pages 11 - 12.
Specifically the trial court held:
" T H E C O U R T : I ' m not removing you because you've requested the additional
funds. What you're stating to the Court is that w i t h o u t those funds you don't
believe you can - you can provide effective assistance o f counsel. That's
specifically ~
" M R . C L U C K : Well, what -
" T H E C O U R T : Hang on.
" M R . C L U C K : Go ahead. I ' m sorry.
" T H E C O U R T : That's specifically what you said and I want someone else to
look at this case."
RRVollPagel2.
Later i n the day the Respondent appointed Gary Prust as new counsel for the
Relator.
4
Summary Of The Argument on
R e s p o n s e to Issue No. i
l.a. T h e Respondent has the authority to remove appointed
counsel w h e n the Respondent has made a finding o f good
cause that is entered on the record,
l.b. Where the Respondent has authority to remove appointed
counsel for good cause that is entered on the record
Mandamus w i l l not lie.
Relator complains that the Respondent did not have good cause to remove
Tracy D . Cluck as Relator's appointed counsel. However, M r . Cluck had expressed
to the Respondent his belief that he was unable to provide effective assistance o f
counsel unless the Respondent granted the funds requested. The Respondent (a)
was not i n the position o f granting the funds requested due to the excessive nature
o f the request, (b) was aware that none o f the other three attorneys representing the
three co-defendants had expressed such an excessive request, ( c) had extensive
personal experience i n representing clients acting i n the role o f a criminal defense
attorney for court appointed clients prior to being elected to the bench, and (d) was
sufficiently aware o f the facts o f the instant case to believe that the level o f funds
requested was excessive. For these reasons the Respondent had concern that i f the
excessive requests were not granted, M r . Cluck would move forward to trial o f the
case under conditions that would create an appellate argument for ineffective
assistance o f counsel and thus, potentially require a second trial at the expense o f
judicial economy and the taxpayers o f Burnet County.
6
Argument On R e s p o n s e to i s s u e No. 1
1.1 Principals of Law
Where a person accused o f a crime is indigent the trial court is obligated to
appoint competent counsel to represent the person. Tex. Code C r i m . Proc. Art.
26.04; U.S. Const, amend, V I and X I V ; Thomas v. State, 550 S.W.2d 64, 68 (Tex.
C r i m . App. 1977).
Where counsel has been appointed to represent a person, the court has the
authority to remove and replace said appointed counsel i f the court makes a fmding
o f good cause that is entered on the record. Tex. Code C r i m . Proc. Art. 26.04 0
(2).
Mandamus relief is available only when the relator can establish two things: first,
that no other adequate remedy at law is available; and second, that the act he seeks
to compel is ministerial. Braxton v. Dunn, 803 S.W.2d 318, 320 ( T e x . C r i m A p p .
1991). A n act is ministerial "when the law clearly spells out the duty to be
performed . . . w i t h such certainty that nothing is left to the exercise o f discretion or
judgment." Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420,424 (Tex.Crim A p p .
1981).
7
A n attorney shall not knowingly make a misrepresentation o f fact to the court.
Ex parte Billy Burl Clayton, 171 Tex. C r i m . 398; 350 S.W.2d 926 (Tex. C r i m . App.
1961); Tex. Disc. R. o f P r o f Cond. Rule 303 (a) (1).
1,2 Applicable Facts
I n this case, M r . Cluck sought approval o f the Respondent for additional funds
in an unusually large amount for a medical expert and for additional investigation.
RR V o l . 1 Page 4. I n presenting his argument to the Respondent, M r . Cluck stated
that he w o u l d not be able to provide effective assistance o f counsel, or at least was
concerned about his ability to do so, without the requested funds. RR Vol. 1 Pages
4-8. Expressing concern about M r . Cluck's apparent inability to provide the
Relator w i t h the standard o f representation required by law unless the request for
excessive funds was granted, the Respondent determined it necessary to remove M r .
Cluck as counsel for Relator and appoint other counsel. RR Vol. 1 Pages 1 1 - 1 2 .
IJ Discussion and Conclusion
Whether mandamus should lie i n this matter is determined on whether the
Respondent did or did not have good cause to remove Tracy D . Cluck as counsel for
the Relator i n accordance w i t h Tex. Code C r i m . Proc. Art. 26.04 (j) (2). I f the
reasoning o f the Respondent did not rise to the level o f good cause then the
8
Respondent was without authority to remove M r . Cluck as Relator's counsel. Stotts
V. Wisser, 894 S.W.2d 366 (Tex. C r i m . App. 1995). Yet i f the Respondent's
reasoning does constitute good cause then the relief o f mandamus is not available.
Texas Dept. of Corrections v. Dalehite, supra.
The Respondent i n this case had before it a clear statement o f fact from M r .
Cluck that he would not be able to perform his duties to the standards required by
law unless the Respondent approved his request for funds. W i t h this, the
Respondent had to choose one o f two conclusions. Either M r . Cluck was
knowingly making a false statement o f fact to the Respondent i n order to coerce
funds from the Respondent, an action which would be i n violation o f Rule 303 (a)
(1) o f the Rules o f Disciplinary Conduct, or M r . Cluck's statement was true.
Considering that the Respondent did not take disciplinary action against M r . Cluck
for making a false statement to the court, it can be presumed that the Respondent
determined that M r . Cluck's statement about being unable to perform his duties to
the standards required by law unless the Respondent approved his request for funds
was true.
The findings o f the Respondent on the record i n this regard were made not only
from the direct statement o f M r . Cluck but also from the fact that none o f the
attorneys from the three co-defendants had informed the Respondent o f similar
excessive needs i n order to perform their jobs (RR Vol. 1 Pages 12 - 13) and from
the Respondent's o w n personal experiences i n representing criminal clients i n this
jurisdiction (RR Vol. 1 Page 13) and from what the Respondent then knew o f the
facts of the case (RR Vol. 1 Page 13). Based on these findings the Respondent did
in fact act under the authority of Art. 26.04 (j) (2) i n removing M r . Cluck for good
cause shown on the record for the protection of the rights of the Relator and as such
the relief o f Mandamus is not available under these circumstances.
Summary Of The Argument on
Response to i s s u e No. 2
2,a, T h e R e a l Party in Interest neither joins nor opposes Issue
No. 2.
N o argument is presented i n favor or i n opposition of Issue N o . 2.
Argument On R e s p o n s e to issue No. 2
N o argument is presented i n favor or i n opposition o f Issue N o . 2. I n as much
as this Court has entered an order temporarily staying the proceedings pending
resoludon o f this complaint, the Real Party i n Interest believes that a W r i t o f
Prohibition is duplicitous, unnecessary, and moot.
10
Prayer For Relief
Wherefore, Real Party i n Interest, Wiley B. "Sonny" McAfee, District Attorney,
prays the Court deny the relief requested by Relator and set aside the Court's order
staying further proceedings i n the underlying cause.
Respectfully submitted,
OFFICE O F D I S T R I C T A T T O R N E Y
33^° and 424^^ J U D I C I A L D I S T R I C T S
Wiley B. McAfee, District Attorney
P. O. Box 725
Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
Assistant District Attorney
State Bar N o . 03353500
g.bunyard@co.llano.tx.us
A T T O R N E Y F O R REAL PARTY I N I N T E R E S T
W I L E Y B. " S O N N Y " McAFEE
CERTIFICATE OF WORD C O U N T
This is to certify that the pertinent portion o f this brief contains 1,582 words
printed i n Aldine401 B T 14 font as determined by the WordPerfect X 7 © word
count tool.
Assistant District Attorney
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CERTIFICATE OF SERVICE
This is to certify that a true copy o f the above and foregoing instrument, together
v^ith this proof o f service hereof, has been forwarded by EServe and by email on the
3rd day o f September 2015, to M r . Tracy D . Cluck, Attorney for Relator, at
tracy@tracyclucklaw.com, and by EServe .
u a r y ^ . Bunyard
Assistant District Attorney
12