CAUSE NO. 1087158sB
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
ETHAN WAYNE HORTON
REALTOR
v.
KRISTIN M. GULNEY
RESPONDENT
THE 179th. DISTRICT COURT
OF
BARRIS COUNTY I TEXAS
P E T I T I 0 N F 0 R WR I T 0 F MA N D A MU S
RECEIVED IN
COURT OF CRIMINAL APPEALS
RESPECTFULLY SUBMITTED
FEB 27 2015 ETHAN WAYNE HORTON
TDCJ ID#: 1459524
H. H. COFFIELD UNIT
2661 f.m. 2054
TENNESSEE COLONY, TEXAS
75884
CAUSE NO. 1087158sB
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
ETHAN WAYNE HORTON, REALTOR
v.
JUDGE KRISTIN M. GULNEY
PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE JUDGE OF THE COURT OF CRIMINAL APPEALS:
NOW COMES, ETHAN WAYNE HORTON, REALTOR, PRO SE AND FILE THIS PETITION
FOR WRIT OF MANDAMUS ORDERING THE 179th DISTRICT COURT OF HARRIS COUNTY,
.L
TEXAS TO ANSWER RELATORS STATE WRIT OF HABEAS CORPUS AS REQUIRED BY ~aE
11.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE, AND ARTICLE 1, SECTION 12
OF THE TEXAS CONSTITUTION, iAND THE FIRST AMENDMENT UNDER THE ~UNITED STATES
CONSTITUTION IN SUPPORT THEREOF, RELATOR WILL SHOW THIS HONORABLE COURT THE
FOLLOWING:
I
JURISDICTION
ON SEPTEMBER 19, 2007 RELATOR PLEAD GUILTY TO AGGRAVATED ROBBERY IN CAUSE
NO. 1087158 AND WAS
SENTENCED TO TWENTY(20) YEARS CONFINEMENT IN .. TEXAS
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DEPARTMENT OF CRIMINAL JUSTICEsINSTITUTIONAL DIVISION, BY ~HE~ 179th DISTRICT
COURT OF HARRIS COUNTY, TX. RELATOR FILED A WRIT OF HABEAS CORPUS, CAUSE
NO. 1087158sB ON FEBRUARY 14, 2013. ARTICLE 11.07 OF TEXAS CODE OF CRIMINAL
PROCEDURE AFFORDS THE STATE 15 DAYS IN WHICH TO ANSWER APPLICATION. AFTER
HAVING BEEN SERVED WITH SAID APPLICATION, AFTER 15 DAYS ALLOWED TO THE STATE
TO ANSWER THE APPLICATION, THE COURT HAS 20 DAYS IN WHICH IT MAY ORDER THE
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DESIGNATION OF ISSUES TO BE RESOLVED IF ANY.
IF THE COURT HAS NOT ENTERED AN ORDER DESIGNATING ISSUES TO BE RESOLVED
WITHIN 35 DAYS THE STATE HAVING BEEN SERVED WITH THE APPLICATION, THE APPs
LICATION WILL BE FORWARDED TO THE COURT OF CRIMINAL APPEALS FOR THEIR CONSIs
DERATION PURSUANT TO ARTICLE 11.07 SEC. 3(c) OF TEXAS CODE OF CRIMINAL PROCs
EDUCRE. THEREFORE, THIS COURT HAS JURISDICTION OVER THE :~ MATTER AND
PARTIES OF THIS PETITION.
II.
ON SEPTEMBER 19, 2007, THE RELATOR PLEAD GUILTY TO THE FELONY
OFFENSE OF AGGRAVATED sRD:BBERY IN CAUSE NUMBER 1087158 :CTHE
PRIMARY CASE), AND WAS SENTENCED TO TWENTY (20) YEARS CONFINEs
MENT IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICEsINSTITUTIONAL
DIVISION, BY THE 179th. DISTRICT COURT OF HARRIS COUNTY, TEXAS.
RELATOR APPEALED AUGUST 12, 2011, AND CASE BEGAN IN THE 14th
COURT OF APPEALS ON AUGUST 22, 2011, AND WAS DISMISSED ON SEPs
TEMBER 22, 2011. CASE NUMBER 14s11 i007 20sCr, BECASUE IT WAS
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NOT COMPLAINT WITH TEX. R. APP.P. 26s2 (a)(l), AND FURTHERMORE
THE TRIAL COURT ENTERED A CERTIFICATION OF THE DEFENDANTS RIGHT
TO APPEAL, IN WHICH THE COURT CERTIFIED THAT THIS IS A PLEA
BARGIN CASE, AND DEFENDANT HAD NO RIGHT OF APPPEAL.
RELATOR FILED THE INSTANT APPLICATION FOR WRIT OF HABEAS CORPUS
1087158sA ON JANUARY 23, 2012, AS OF THAT DATE THE MANDATE HAD
NOT YET BEEN ISSUED IN CONNECTION WITH RELATOR'S DIRECT APPEAL,
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WHICH WAS ISSUED JANUARY 24, 2012, WHICH RESULTED IN DISMISSAL
ON JULY 11, 2012 BECASUE THE~ RELATOR'S APPEAL CASE WAS STILL
PENDING. EX PARTE HORTON WR 77, 627s01 (TEX. CRIM. APP. 2012).
III.
PROCEDURAL HISTORY
ON SEPTEMBER 19, 2007, RELATOR PLEAD GUILTY TO AGGRAVATED ROBBERY
AND WAS SENTENCED TO TWENTY (20) YEARS TEXAS DEPARTMENT OF
CRIMINAL JUSTICEsINSTITUTIONAL DIVISION. FEBRUARY 14, 2013 RELs
ATOR FILED A WRIT OF HABEAS CORPUS, CAUSE NO. 1087158sB, SEEKING
RELIEF IN HIS FIRST GROUND BY CLAIMING THAT HIS PLEA WAS INVOs
LUNTARY BECAUSE TRIAL COUNSEL COERCED HIM INTO ACCEPTING A PLEA
BY CALLING THE RELATOR'S MOTHER WITHOUT HIS PERMISSION WHO
BEGGED HIM TO TAKE A PLEA OF TWENTY (20) YEARS, OR THE STRESS
WOULD KILL HER. RELATOR CLAIMS HE WANTED A JURY TRIAL, BUT THAT
OUT OF FEAR OF HARMING HIS MOTHER HE INVOLUNTARILY PLEAD GUILTY.
IN RELATOR'S SECOND GROUND HE CLAIMS THAT HE WAS DENIED EFFECTs
IVE ASSISTANCE OF COUNSEL AT HIS PLEA WHEN TRIAL COUNSEL, SUSAN
JACOBSEN PERRET, COERCED THE RELATOR TO PLEAD GUILTY BY CALLING
THE RELATOR'S MOTHER SYAING, "MOM MAKE HIM TAKE THE TWENTY
YEARS".
STATE'S REPLY TO BOTH OF THE RELATOR'S ARGUMENTS WERE "NEVERTHs
..V
ELESS AND WITHOUT WAVING THE FOREGOING ARGUMENTS, TBE RESOLUTION
OF THE CLAIM REQUIRES INFORMATION CONCERNING TRIAL COUNSEL'S
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STRATEGIC DECISIONS, AND CONFIDENTIAL COMMUNICATIONS WITH THE
APPLICANT. THEREFORE, THE STATE BELIEVES THAT FURTHER FACTUAL
INVESTIGATION IS NECESSARY TO DETERMINE THE MERIT , IF ANY,
TO THE APPLICANT'S INEFFECTIVE ASSISTANCE CLAIM."
IN THE STATE'S AMENDED PROPOSED ORDER DESIGNATIING ISSUES AND
FILING AFFIDAVIT, THE COURT ORDERED SUSAN JACOBSEN PERRET IN
ORDER TO ASSIST IN RESOLVING ISSUES TO FILE AN AFFIDAVIT SUMMARIs
ZING HER ACTIONS AS COUNSEL FOR RELATOR IN THE PRIMARY CASE,
CAUSE NUMBER 1087158 AND SPECIFICALLY RESPOND TO THE FOLLOWING:
1. PLEASE SUMMARIZE THE DISCUSSION~S) PERRET HAD WITH THE APPLs
ICANT REGARDING WHETHER THERE WAS SUFFICIENT EVIDENCE TO
SUPPORT A AGGRAVATED ROBBERY CONVICTION AND ANY ADVICE GIVs
EN CONCERNING WHETHER TO GO TO TRIAL OR PLEAD GUILTY. PLEASE
INCLUDE THE NUMBER AND NATURE OF ANY AND ALL "OFFFERS FROM
THE STATE" CONVEYED TO THE APPLICANT, INCLUDING, BUT NOT
LIMITED TO, ANY REDUCTIONS, ENHANCEMENTS, AND/OR ENHANCEMENT
ABANDONMENTS DISCUSSED, IF APPLICABLE.
2. THE APPLICANT CLAIMS " .... HIS TRIAL ATTORNEY, SUSAN JACOBSEN
PERRET; HAD EX PARTE COMMUNICATION WITH DEFENDANTS MOTHER,
WHERE SHE BY THIRD PARTY COERCION AND MANIPULATIVE LAWYER
TACTICS, TOLD DEFENDANT'S MOTHER IF HE DID NOT TAKE A TWENTY
(20) YEAR PLEA, HE WOULD RECEIVE A LIFE SENTENCE;" AND THAT
"ATTORNEY PERRET WENT FURTHER ON TO PERSUADE THE APPLLEANTS
MOTHER SAYING, "MOM, MAKE HIM TAKE THE TWENTY." [SIC]. PLEASE
RESPOND.
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3. PLEASE DESCRIBE THE MANNER AND THE DEGREE TO WHICH PERRET
REVIEWED THE PLEA PAPERS AND ADMONISHMENTS WITH THE APPLICs
ANT; IF PERRET DOES NOT HAVE INDEPENDENT RECOLLECTION OF
THE EVENT, PLEASE STATE WHAT PERRET'S USUAL A~D CUSTOMARY
PRACTICE WAS AND ALSO STATE WHETHER PERRET HAS ANY REASON
TO BELIEVE PERRET VARIED FROM THAT PRACTICE IN THIS PARTICUs
LAR CASE.
4. PLEASE STATE WHETHER PERRET BELIEVES THE APPLICANT'S PLEA
WAS KNOWINGLY AND VOLUNTARILY ENTERED.
5. PLEASE STATE WHETHER PERRET BELIEVED THE APPLICANT'S GUILTY
PLEA TO BE ADEQUATELY SUPPORTED BY THE EVIDENCE.
6. ACCORDING TO THE APPLICANT, THE STATE NEVER RECOVERED THE
DEADLY WEAPON IN THE: INSTANT CAUSE. PLEASE EXPLAIN HOW THE
ABSENCE OF THE DEADLY WEAPON WOULD HAVE AFFECTED TRIAL AND
WHETHER PERRET DISCUSSED THAT INFORMATION WITH APPLICANT.
PLEASE ALSO EXPLAIN WHETHER PERRET BELIEVED THE INFORMATION
ABOUT THE DEADLY WEAPON COULD BE EXCLUDED, IN LIGHT OF NO
DEADLY WEAPON BEING RECOVERED.
FURTHERMORE, THE COURT DID ADOPT THE STATE'S PROPOSED ORDER
FOR FILING AFFIDAVIT IN CAUSE NUMBER 1087158sB. SUSAN JACOBSEN
PERRET WAS ORDERED TO FILE HER AFFIDAVIT WITH THE POSTsCONVICTs
ION WRITS DIVISION OF THE DISTRICT CLERK'S OFFICE, 1201 FRANKLIN
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THIRD FLOOR, HOUSTON, TEXAS 77002, WITHIN SIXTY(60) DAYS OF
THE SIGNING OF THIS ORDER, WHICH WAS SIGNED AT 12:20 P.M.
ON JUNE 19, 2013 BY JUDGE FRANK C. PRICE, PRESIDING JUDGE AT
THAT TIME.
HEREBY THE COURT IS DAYS DELINQUENT IN NOT
ANSWERING THE ORDER IT ISSUED, FROM THE SIGNING OF THIS DOCUMs
ENT. MOREOVER RELATOR HAS A CLEAR RIGHT TO HAVE ISSUES HEARD
AND STAND BEFORE A MAGISTRATE TO RESOLVE SAID ISSUES PURSUANT
TO ARTICLE 11.07 3 (b) (c) (d) OF THE TEXAS CODE OF CRIMINAL
PROCEDURE. THUS RELATOR HAS A CLEAR RIGHT TO HAVE ISSUES RESOLs
VED.
THE COURT OF CRIMINAL APPEALS HAS HELD THAT MANDAMUS RELIEF
MAY BE GRANTED IF THE RELATOR SHOWS: (1) THAT THE ACT SOUGHT
TO BE COMEELLED IS PURELY MINSTERAL, AND (2) THAT THERE IS NO
ADEQUATE REMEDY AT LAW. WINTERS V. PRESIDING JUDGE, 118 S.W.
3d 14 7 ;:(rEX. CRIM. APP. 2003), EX PARTE YBARRAY 149 S.W. 3d
147 (TEX. CRIM. APP. 2004).
IN CONCLUSION RELATOR HAS SHOWN s(1) TffAT IT IS THE MINSTERAL
DUTY OF THE JUDGE OF THE 179~, DISTRICT COURT, HARRIS COUNTY,
TEXAS TO UPHOLD THE ORDER OR SEEK ANOTHER REMEDY, AND (2) THAT
THERE IS NO ADEQUATE REMEDY~ AT LAW TO APPEAL. RELATOR HAS FURs
THER SHOWN THAT IT IS NECESSARY TO DETERMNINE THE RELATOR'S
INEFFECTIVE ASSISTANCE CLAIM AND INVOLUNTARY PLEA CLAIM, PURSUs
ANT TO ARTICLE 11.07 3(b) (c) (d) OF THE TEXAS CODE OF CRIMINAL
PROCEDURE.
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THUS RELATOR HAS MET ALL REQUIREMENTS FOR MANDAMUS RELIEF.
IN CONCLUSION RELATOR RESPECTFULY REQUEST THAT THE COURT OF
CRIMINAL APPEALS GRANTS HIS APPLICATION FOR WRIT OF MANDAMUS,
AND DIRECT THE RESPONDENT, JUDGE KRISTIN M. GULNEY, TO UPHOLD
HIS ADOPTED ORDER OF STATES AMENDED PROPOSED ORDER ISSUES AND
FOR,i~ FILING AFFIDAVIT, OR .. :LET RELATOR APPEAR BEFORE MAGISTRATE
AS REQUIRED BY'. LAW UNDER ARTICLE 11.07 TEXAS CODE OF CRIMINAL
PROCEDURE AND THE FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION.
PRAYER
WHEREFORE PREMISE CONSIDERED, RELATOR RESPECTFULLY PRAYS THAT
THE HONORABLE COURT OF CRIMINAL APPEALS GRANTS THIS FOREGOING
PETITION FOR WRIT OF MANDAMUS::.AND THERE AFTER DIRECT THE RESPONs
DENT JUDGE KRISTIN M. GULNEY TO UPHOLD HIS ORDER OF STATES AMEs
NDED PROPOSED ORDER ISSUES AND FILING AFFIDAVIT, OR LET RELATOR
APPEAR BEFORE MAGISTRATE AS REQUIRED BY LAW, ARTICLE 11.07 TEXAS
CODE OF CRIMINAL PROCEDURE.
RESPECTFULLY SUBMITTED,
!tkn~k
ETHAN Wk E HORTON
COFFIELD UNIT
2661 f .m. 2054
TENNESSEE COLONY, TEXAS
75884
7
CERTIFICATE OF SERVICE
I, ETHAN WANYE HORTON, DO HEREBY CERTIFY THAT A TRUE AND CORRECT
COPY OF THIS FOREGOING INSTRUMENT HAS BEEN SERVED UPON THE RESPONDENT
1 JUDGE KRISTIN M. GULNEY, 1201 FRANKLIN, HOUSTON, TEXAS 77210 ON THIS
DAY OF FEBUARY 23, 2015.
SIGNATURE ~ WfL~ ~~~
TTHAN wAYNf'HoRTON i
SWORN DECLARATION
I, ETHAN WAYNE HORTON, TDCJsID NO. 1459524, RELATOR, PRO SE
DO HEREBY DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING STATE
sMENTS ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF
EXECUTED ON THIS 23rd DAY OF FEBUARY 2015.
SIGNATURE : .
ETHAN
~ ~~i
WAYNE HO N
fh:;;t;:
.
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RESPECTFULLY SUBMITTED
ETHAN WAYNE HORTON
1459524
H.H. COFFIELD UNIT
2661 F.M. 2054
i TENNESSEE COLONY, TEXAS
75884