WR-84,038-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/16/2015 5:12:03 PM
Accepted 10/19/2015 3:27:07 PM
ABEL ACOSTA
15 OCTOBER 2015 CLERK
Abel Acosta RECEIVED
COURT OF CRIMINAL APPEALS
Clerk Texas Court of Criminal Appeals 10/19/2015
ABEL ACOSTA, CLERK
P.O. Box 12308
Austin, Texas. 78711
No. #________________
Ct.App. No. #09-15-00063
Tr.Ct. No. #13-03-02547
Styled: Ex Parte Carol Ann Davis
Dear Mr. Acosta,
In regards to the above entitled and referenced matter, please find enclosed for filing the
Petitioner’s Motion for A Emergency Stay and Request for A Writ of Mandamus and/or
Prohibition.
If, you have any questions regarding this matter, please feel free to contact me.
Thank you for your prompt attention and kind assistance in this matter.
Cordially,
/s/__________________________
Carol Ann Davis
25311 Sugar Vally Lane
Spring, Texas. 77373
Ph. (281) 350-2943
Encls.
CD/mbsr.
Cc: File.
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Andrew James
Assistant District Attorney
Montgomery County, Texas
207 W. Phillips, 2nd Floor
Conroe, Texas. 77301
Fax: (936) 760-6940
Suzannne Stovall
Presiding Judge
359TH Judicial District Court
Montgomery County
207 W. Phillips
Conroe, Texas. 77301
Fax: (936) 538-8187
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No. #_____________________
EX PARTE § BEFORE THE TEXAS
§
§ COURT OF CRIMINAL APPEALS
§
CAROL ANN DAVIS § AT AUSTIN, TEXAS
PETITIONER’S MOTION FOR A EMERGENCY STAY OF MANDATE
AND REQUEST FOR A
WRIT OF MANDAMUS AND/OR PROHIBITION
PENDING THE FILING AND DISPOSITION OF
DISCRETIONARY REVIEW
MAY IT PLEASE THE COURT:
COMES NOW, Carol Ann Davis herein after referred to as the Petitioner in the above-
entitled and styled case, and in propria persona pursuant to Rule 18 of the Texas Rules of
Appellate Procedure, files and tenders this, her Motion for A Emergency Stay of Mandate, and
accompanying request for the issuance of a Writ of Mandamus and/or Prohibition, and for cause
will advance the following in support thereof, to-wit:
I.
STATEMENT OF THE CASE
This is a habeas proceeding from the 359TH Judicial District Court of Montgomery
County, Texas, in Cause No. #13-03-02547-CR, Styled: Ex Parte Carol Ann Dais. The trial court
denied the Application on January 9, 2015. Appeal was taken to the Ninth Court of Appeals for
The State of Texas in Cause No. #09-15-00063, Styled: Ex Parte Carol Ann Davis. The court of
appeals affirmed the judgment of the trial court on October 14, 2015. The Petitioner’s Petition
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for Discretionary Review is due to be filed with this Court on or before November 13, 2015. This
case has been set for trial on October 19, 2015.
II.
ARGUMENT AND AUTHORITY
The significance of Article I, Section 14 of the Texas Constitution that is enforced
by the 5th and 14th Amendment to the United States Constitution is, that no person for
the same offense shall be twice put in jeopardy for life or liberty, nor shall a person be
again put upon trial for the same offense, a verdict of not guilty in a court of competent
Jurisdiction. A Double Jeopardy Claim is a jurisdictional claim. See., Seller v. State, 961
S.W.2d 351 (Tex.App. 1“ Dist. 1997).
The Doctrine of double jeopardy on the basis of collateral estoppels, the allegation does
not depend upon slight differences in statutory language or estoppels, the allegation does not
depend upon slight differences in statutory language or as to alternate means or manners in
committing the allege act. It depends upon the scope of a specific factual finding in a particular
case. See., Ex Parte Taylor, 101 S.W.3d 434 (Tex.Cr.App. 2002). By forcing the Petitioner to
trial, the afforded protection of the Article I, Section 14, as implicated by the 5th and 14th
Amendments to the United States is forever lost. To force the Petitioner to trial simply
undermines the afforded protection thereof and as guaranteed by the Constitution. Further, it is
the legal scheme in the State of Texas, that the filing of a notice of appeal to a court of appeals
invests that court with jurisdiction. See., Ex Parte Johnson, 12 S..W.3d 472 (Tex.Cr.App. 2000).
Cf., Cook v. State, 902 S.W.2d 471 (Tex.Cr.App. 1995). Accordingly, the Respondent does not
have jurisdiction over the parties and subject matter or the authority to set the case for trial until
the issuance of mandate by this Court and to be afforded the protection as guaranteed by the 5TH
and 14TH Amendment of the United States Constitution and Article I, Section 14 of the Texas
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Constitution the Petitioner is entitled to the issuance of a Writ of Mandamus and/or Writ of
Prohibition until the disposition of the Petition for Discretionary Review and issuance of
mandate in this case.
True enough, this Court has concurrent mandamus jurisdiction with the court of appeals
in criminal law matters. See., Engle v. Coker, 820 S.W.2d 247 (Tex.App.-9TH Dist. 1991).
This Court may issue a writ of mandamus in a criminal proceeding if the relator
establishes that he has no adequate remedy at law to redress the harm visited upon him and if
what he seeks to compel is a ministerial act. See State ex rel. Young v.Sixth Judicial Dist. Court
0fAppeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). ). To establish his right
to either mandamus or prohibition relief, the relator must “show that he has no adequate remedy
at law to redress the harm that he alleges will ensue if the act he wishes to prohibit is carried
out.” Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig. proceeding)
(footnote omitted). He must “show that the act he seeks to compel or prohibit does not involve a
discretionary or judicial decision.” Id. A matter is discretionary with the trial court unless the
facts and circumstances dictate a single rational decision under unequivocal, well-settled, and
clearly controlling legal principles. Id. It is argued that the trial court should have no discretion to
refuse a stay of a criminal prosecution when there is an appeal of the denial of a pretrial writ of
habeas corpus that presents a facial challenge to the constitutionality of the prosection.); Ex
parte Robinson, 641 S.W.2d 552, 555 (Tex.Crim. App. 1982) (ruling that a double jeopardy
claim may be raised and appealed in a pretrial habeas corpus proceeding), or the defendant is
prohibited from attending and participating in the proceedings or trial due to medical
complication and proscribed treatment by a physician., or is undergoing sever medical
complications and pending treatment. For that matter, the trial court should have no discretion to
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refuse a continuance under such circumstances, and this Court must enjoin the Respondent from
proceeding with this case.
III.
PRAYER
WHEREFORE, PREMISES CONSIDERED, and in the interest of justice, the Petitioner
Respectfully moves and prays that the requested relief in all be granted.
ACCORDINGLY WRITTEN,
_________________________________
Carol Ann Davis
25311Sugar Valley Lane
Spring, Texas,, 77373
Ph. No. #(281) 3540-2943
Defendannt, In propria persona.
JURAT
I, state that my name is Carol Ann Davis. My date of birth is February 18, 1956. I
presently reside at 25311 Sugar Valley Lane, Spring, Texas, 77373, Harris County, Texas, and
pursuant to State law, Section 132.001-132.003 of the V.T.C.A. Civil Practice and Remedies
Code, declare under the penalty of perjury that the foregoing is all true and correct.
Executed on this the 15th day of July, 2015.
/s/_____________________________________
Carol Ann Davis
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CERTIFICATE OF SERVICE
I, Carol Ann Davis, do hereby certify, that a true and correct copy of the foregoing
Instrument was served, Hand Delivered on July 10, 2015, to:
Andrew James
Assistant District Attorney
Montgomery County, Texas
207 W. Phillips, 2nd Floor
Conroe, Texas. 77301
Suzannne Stovall
Presiding Judge
359TH Judicial District Court
Montgomery County
207 W. Phillips
Conroe, Texas. 77301
/s/_____________________
Carol Ann Davis
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