WR-82,772-03
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/17/2015 8:18:52 AM
Accepted 3/19/2015 1:32:54 PM
ABEL ACOSTA
CLERK
Nos. 82,772-01, 82,772-01 and 82,772-03
RECEIVED
COURT OF CRIMINAL APPEALS
EX PARTE § IN THE COURT OF CRIMINAL
3/19/2015
ABEL ACOSTA, CLERK
§
DONALD LEE GRAY § APPEALS OF TEXAS
MOTION FOR REMAND
To the Honorable Judges of the Court of Criminal Appeals:
Donald Gray, petitioner, respectfully asks the Court to remand to
the district court for consideration of his affidavit confirming restraint.
As explained in his brief, Gray seeks habeas relief from three
convictions for improper photography, Penal Code section 21.15,
declared unconstitutional by the Court last year. Gray’s continuing
restraint affidavit was filed after the district court signed adverse
findings and conclusions but before the record was send to the Court.
Remand is appropriate to permit the district court to evaluate the
affidavit. The State’s answer to the petition recognizes that the Court
has held the statute unconstitutional and appears to concede the writ
would be granted, but for the affidavit of restraint.
Alternatively, in the interests of judicial economy, the Court can
grant the writ on the basis of Gray’s affidavit. If denied, Gray would be
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permitted to file a successor writ under section 4(a)(2) of article 11.07,
the actual innocence provision. Section 4(a)(2) allows a successor writ if
the individual is actually innocent of a Penal Code violation, without
any other restrictions. Here, the improper photography statute has been
declared unconstitutional and therefore any conviction would be void ab
initio. It would seem, therefore, that he can satisfy section 4(a)(2). An
example appears in Ex parte Knipp, 236 S.W.3d 214 (Tex. Crim. App.
2007), in which Court unanimously granted a successor writ under
section 4(a)(2) on a double jeopardy claim that rendered the conviction
invalid from inception. Gray’s position appears identical.
Respectfully submitted this 16 day of
March 2015,
/s/ James W. Volberding
______________________________
JAMES W. VOLBERDING
SBN: 00786313
First Place
100 E. Ferguson Street
Suite 500
Tyler, Texas 75702
(903) 597-6622
(866) 398-6883 (fax)
e-mail: jamesvolberding@gmail.com
Counsel for Donald Lee Gray
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Certificate of Compliance
Pursuant to Rule 73.1(f), I hereby certify that this pleading
contains 252 words, measured in MS Word for MAC version 14.3.6.
/s/ James W. Volberding
____________________________________
JAMES W. VOLBERDING
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this pleading has
been delivered this 16 day of March 2015 to:
Smith County District Attorney
101 N. Broadway, Fourth Floor
Tyler, TX 75702
by the following means:
_____ By U.S. Postal Service Certified Mail, R.R.R.
_____ By First Class U.S. Mail
_____ By Special Courier _______________________
_X___ By Hand Delivery
_____ By Fax before 5 p.m.
_____ By Fax after 5 p.m.
_X___ By Electronic Filing.
/s/ James W. Volberding
____________________________________
JAMES W. VOLBERDING
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Gray, Donald Lee
Combined Opinion