In Re: Verlee, Albert § Civil No.
----------------
V. §
2llth District Court §
Presiding Judge RECEIVED IN
' Dee Shipman
:C. § ~dU~T OF CR!MIN.Al APPEALS
JUL 16 2~15
Petition for Writ of Mandamus Abe!Acosta,Gierk
Comes Now, Relator, Verlee, Albert. Will show just cause and
a last adequate remedy at law. And a clear abuse of discretion by
trial court:
Jurisdiction
This court ha~ jurisdiction, pursuant to Tex. Const. Article
5:~sec. 5,6 Crimin~l Court of Appeals have concurrent, original jur-
isdiction of this petition for Writ of Mandamus against the judge
of the 2llth District Court of Denton County, Texas. see: Padilla v
McDaniel 122 S.W.3d 805 (Tex.Crim.App. 2003).
Statement of Fact's
On Marchr 2007 relator::filed a motion to quash indictment F-2007-
0838-C on Agg. Robbery. see: (Docket Sheet). Relator was charged by
information with the information claiming lack of notice due to the
use of the conjunctive "and" as opposed to the use of disconjunctive
"or" in the state's allegations of Agg. Robbery. The trial court then
(l)
granted, relator's motion to quash Agg. Robbery. The docket sheet
reflects the notation: That indictment was quashed on August 24,
2007. Relator has "strick proof"; see: (Register of Action).
Relator claims that this is a structu~al error and cannot be
procedurally defaulted. see: Rodriquez v State 42 S.W.3d 181 (Tex.
ap¢. Corpus Christi 2001), Whan a court has no jurisdi~tion, it has
no power to act, and any acti6n,taken in the absence of jurisdiction
is void. see: Henry v State 2011 Tex. App. Lexis 1344) once informat-
ion is quashed and stricken, the tr-ial court no longer has jurisdction
over the c~_se and thus has no :authority to conduct further proceeding's.
It is well settled,·that when a trial court empowered with jurisdict-
ion over a criminal case sustains a motion to quash indictment or in-
formatiori, the person accused thereunder is, in law. discharged from
the accusation against him.
Furthermore; it is likewise axiomatic that .....
any ...... order ent.ered by a court having .no iur-:· · .:·~;_,"--
,_ , _ _ .. i : ; 1i sa i c t ion i s v o :i. d .
In Rodriquez the court reaching this holding., to adhere to a
long standing rule that jurisdiction can be raised at any time and
cannot be waived.
The trial court argues that, even if Albert has a claim on
jurisdiction that he's barred by section 4 § T.C.C.P . . . . . . see:
Albert's (Docket sheet) it's clear that the trial court quashed indict-
ment on Agg. Robbery. a showing that the court lacks jurisdiction.
Case's of Authority
Mandamus is an extraordinary remedy. that will issue only to
correct a clear ab~se of discretion or a violation of a duty imposed
by law when there is no adequate remedy by appeal. V .. T.C.A. Gov't
( /. )
....
Code §22? In re: Sheppard 1993 s.w~ '181.
see: Padilla v McDaniel 122 S.W.3d 805 (Tex.Crim.App. 2003).
The Criminal Court of Appeals has original jurisdiction of a petition
for Writ of Mandamus when there is a clear abuse of discretion, by a
trial court. Denton County District Court abused their .discretion.
when ruling on relator's last Writ of Habeas Corpus, by denying him
juri~diction claim, by barring it. With 11.07 se6~ 4: when in fact
-jurisdiction can not be waived.
Respondent:
L. Dee Shipman the presiding Judge in the 2llth District Court of
Denton County, Texas has violated relator's rights to a fair Habeas
Corpus hearing! by_ denying his Habeas Corpus, knowing that Albert's
claim cannot be barred by (section §4).
The re~ords show, see: (Register of Actions) that the proceedings
contin~ed through a trial and ~ final judgment of fOnviction; at no
point during the proceedings in the trial court did anyon~ urge that
the case:had been quashed.
Article I section 10 of the Texas Constitution states that no
person shall be held to answer for a criminal offense unless on an
indictment of a grand jury. Tex. Canst. art I sec. 10. To invest a
court with jurisdiction over a criminal case, a charging ins~rument
must be filed with the trial court. Tex. Canst .. art. V §12(b) see:
McAfee v State 363 S.W.2d 941 (Tex.Crim.App. 1963). Thomas v State
751 S.W.2d 601,602 (Tex.A:pp,:.' -=-Texarkana 1988). Once_ trial court
quashes an indi~tment, it lacks authority to reinstate it, even if
the order quashing the indictment was bas~d on an erroneous inter-
pretation of law. see: Prochazka v State 878 S.W.2d 230,232 (Te~.
App. -Corpus Christi 1994).
(3)
Statutory Provision
When/ we,, in terpi:et
'i /I '/ - ·-'~- :
statutes such as Article ( 28.05, Tex. Code Cr im. ) ,
. . T .
the court ~eeks~b6 1'!'
effectuate the 'collective' intent or purpose of
the legisla.tor 's who
-
'e'n,gcted
f
the legislation,
.
They do this ber.ause
our state Constit0tion assigns the law making function to the legis-
lature while assigning the law interpreting function to the Judiciary.
see: Tex. Const. Art. II §1.
Where the statue is clear and unambiguous, the legislature must be
understood to mean what it has expressed, and it is not for the courts
to add or subtract from such a statue.
When a cause of action derives from a statue, statutory provisions are
mandatory and exclusive and must be complied with.
28.05 T.C.C.P., if the notionntoset aside or the exception to the
indictment in cases of felony be sustained, the defendant shall not
therefore be discharged, but may be immediately recommitted by order
of the court, upon motion of the state's attorney or without motion;
and proceedings may afterward be had against him if no prosecution
had ever been commenced.
Praver for Relief
Wherefore Relator=prays that:~this :court forces their jurisdiction
in this Writ of Mandamus, for a hearing. If it is determined that
the case was quashed, to prove that the trial court lacked jurisdict-
ion to convict relator of Agq. Robbery. In reaching this holding
the court has held that jurisdiction can be raised at any time and
cannot be waived.
Unsworn Declaration
I, relator Verlee. Albert Jr. a Texas Department of Criminal Justice
( 4)
ldentifyinq number #1464905 on this day of
2015 declare under the penalty of perjury that the foregoing is true
and cor.rect.
Certificate of Service
I hereby certify that a true and correct copy of the above foregoing
relator's Writ of Mandamus has been forwarded by United States mail,
postage prepaid to the Criminal Court of Appeals of TexaA, P.O.Box
12308, Capitoal Station, Austin, Texas 78711, on this jJ-ry day
2015.
Resre:>ctfuJly S1.1bmit.ted:
Albert Verlee Jr.
TDCJ Jj:l464905
Pi'\c"k Unit
2400 Wallace Pack Rd.
Navasota, TX. 77868
(5 )
~~:mal Case Kecord Detail Pag~ 2 of 2: !''"
' .
08/13/2007 COURT SETTING INFORMATION
SHEET
08/15/2007 ORDER TRANSFERRING CASE(S)
FROM THE 367TH DISTRICT COURT
TO THE
211TH DISTRICT COURT
08/16/2007 RETURN CAPIAS/PRECEPT
08/17/2007 STATE'S NOTICE OF INTENT
TO USE EVIDENCE OF OTHER
CRIMES, WRONG OT BAD ACT
PURSUANT TO CODE OF CRIMINAL
PROCEDURE ARTICLES 37.07 AND
38.37 AND EVIDENCE RULES 404(b)
AND 609(f)
08/20/2007 STATE'S NOTICE OF INTENT
TO USE DEFENDCANT
STATEMENTS PURSUANT TO CODE
OF CRIMINAL PROCEDURE ARTICLE
38.22
08/24/2007 MOTION TO QUASH
TM
MtJ-h oA{ to !J.-sttt.J~!.?·- - - - c - .
.0/13/2008 LETTER
' FROM DEFENDANT REQUESTING
/it elf ft1./t"l. Lot COPY OF DISMISSAL
ft/'6r;li.J
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