513§§"2[
Decembef 14, 2015
CLERK OF Court of Criminal Appeals From: John Robert Gray
P.O. Box 12308; Capitol Station Boyd Unit-#475245
Austin, Tx 78711 200 Spur 113
Teague,Tx 75860
Re: CCA No. WR-5358-21, enclosed Amended Application for
writ of mandamus;
Trial Court No. 481656-E.
Dear Clerk,
‘Enclosed please find and file 1-original [AMENDED
APPLICATION FOR A WRIT OF MANDAMUS] containing B-pages with
oertificate of service to Honorable Judge Brad Hart of the
230th District Court of Harris County; Texas, in Houston.
Please bring the enclosed to the attention of the Court as
soon as time permits. Thank you.
Sincerely,
_ John Robert Gray,
cc: Judge Brad Hart Applicant pro se
RECEVEDW¢
COURT OF CR\\\A\NAL APPEALS
DEC 18 2015
Abe\ Acc)sta, C\erk
COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
IN RE §
JOHN ROBERT GRAY _ § NO. WR-5,358-21
AMENDED’APPLICATION FOR A WRIT OF MANDAMUS
I.
JURISDICTION
On 11-17-2015 the original application for writ of manda-
mus was received and presented to the Court of Criminal Appeals
under No. WR-5,358-21 regarding trial court number 481656-E in
the 230th District Court of Harris County, Texas, with Presiding
Judge Brad Hart of a pending writ application under Art.ll.07,
C.C.P.. To_this date of 12-14-2015 the Court has not decided
the issues of the writ of mandamus originally presented and,
the instant AMENDED application presents newer issues in which
Applicant does not have any adequate remedy at law under Article
ll.07 with the Court of Criminal Appeals to properly and fairly
exhaust state remedies as a matter of lawoand in the interest of
justice.
II.
SUMMARY OF TRIAL COURT PROCEEDINGS
On 11-30-2015 the presiding Judge of the trial court
adopted the State's Proposed Findings of Fact and Conclusions
of law and Order in Cause Number 481656-E, but was not served
to Applicant until 12-14-2015. Applicant filed several plead-
ings with the District Clerk's postconviction section for pre-
sentation and consideration to and by the assigned judge of the
230th District Court of Harris County,Texas, the last pleading
being [APPLICANT'S OBJECTIONS TO STATE'S PROPOSED FINDINGS OF
FACT, CONCLUSIONS OF LAW AND ORDER] mailed for filing on 12-01-15.
III.
GROUNDS FOR MANDAMUS RELIEF
Applicant is entitled to habeas corpus relief based on a
true and correct and Complete habeas record of No. 481656-E, but
the Court of Criminal Appeals cannot possibly or will not grant
relief under Art.ll.O7,C.C.P., based on an incomplete or false
findings of fact and conclusions of law submitted by the State's
prosecution Baldwin Chin. Specifically:
1. The trial court has failed or refused to decide in'
writing whether Cause No. 481656 was a nonsviolent felony con-
viction under P.C. Article §21.11(a)(2) §§ a Violent felony
conviction under P.C. Section §21.ll(a)(1). The Jury convicted
Applicant under ;Section 21.11 (a)(Z) for a non-violent felony
offense, but the trial court and the state's prosecution re-
fuse to acknowledge this legal fact as part of the habeas re-
cord. The trial court's failure to decide Applicant's con-
tention between the two distinct penal subsections is clear
abuse of discretion and denies Applicant the right to due pro-
cess. Moreover, the trial court clearly abused its discretion
in failing or refusing to adjudicate a 'nunc pro tunc' motionl
to correct the Judgment or Sentence if the documents are absent
the specific Jury conviction under Section 21.11 (a)(2) as
pursued and obtained by the state by Grand Jury Indictment.
2. The trial court clearly abused its discretion by ad-
opting an incredible and false claims in an affidavit not filed
by TDCJ's‘Charley Valdez in postconviction writ application num-
ber 481656-E during 2015 in its recommendation to deny habeas
relief. The trial court has failed to resolve Applicant's ob-
jections to the said affidavit in and of itself and the state's
use of said affidavit to ignore Applicant's pleadings and en~
titlement to habeas relief. l
3. The trial court clearly abused its discretion by fail-
ing to recognize that TDCJ has changed the felony conviction
of Cause 481656 from Section 21.ll(a)(2) to a "sexual assault
:of a child" conviction. Trial Court Judge Brad Hart knew of the
existence of the "sexual assault of a child" convictions in the
Harris County records of Cause 481656 because Applicant physi-
cally appeared in person in the 230th District Court when the
Court removed the false felony convictions of "sexual assault
of:a child" from Harris County records but, the trial court
did not or would not order TDCJ to change or correct its re-
cords of Cause 481656 or TDCJ #475245 to remove the false
"sexual assault of a child" convictions. Moreover, the trial
court has clearly abused its discretion and denied Applicant
the fundamental federal right to due process by failing to
adjudicate Applicant's claim of the existence of the "sexual
assault of a child" conviction based on state documented proof
made by state attorney Rebecca Klaren as shown in Exhibit-A
seperately attached to the [AMENDED application for a writ of
habeas corpus filed in primary No. 481656-E] which clearly shows
a claim that Applicant has a felony conviction of "sexual
assault of a child" under Cause 481656 from the 230th District
Court.
l 4. The trial court has clearly abused its discretion by
failing or refusing to adjudicate his claim in Ground One in the
[SECOND AMENDED application for a writ of habeas corpus] that
TDCJ's Board of Pardons and Paroles unlawfully and improperly
found Applicant guilty of committing [FELONY terroristic threat]
and increased the Jury's sentence of Cause 481656 to punish
applicant in prison confinement for committing a new felony.
The State and trial court's [findings of fact and conclusions
of law] fails to recognize from BPP records that the BPP made
a finding of guilty and assessed prison punishment to the date
of 10-25-2025 for the [FELONY terroristic threat] outside a
court of law in clear violation of state laws. Art. 1.05 and
Art. 1.15, Code of Criminal Procedure.
5. The trial court and state failed to adjudicate the
claim of the TDCJ's unconstitutional retroactive application
of Gov.t Code Section 508.149(a) and Section 508.283(b) to
the non-violent felony of Cause 481656 in violation of federal
law. Lynce v. Mathis, 117 S.Ct. 891 (1997); Johnson V. U.S.,
120 S.Ct. 1795, 1800-1801 (2000). The trial Court clearly
abused its discretion in failing to make this ex post facto
analysis and resolution into the habeas corpus record for review
by the Court of Criminal Appeals for fair exhaustion of state
remedies.
6. The trial court clearly abused its discretion by fail-
ing to include in the findings of fact and conclusions of law
of Applicant's entitlement to 6-years, 9-months, and 24-days
of street-time during parole where the trial court acknowledged
as fact that the first amendment of Gov't Code Section 508.149
to include Penal Code §21.11 did NOT become effective until
September l, 1999, which was after the BPP revocation of parole
became final on August 12, 1999, for primary Cause 481656 and
TDCJ #475245. The trial court's habeas record is silent and
absent of this critical information which would entitle Appli-
cant to habeas relief as a matter of clearly established law.
Ex Parte Schroeter, 958 S.W.Zd 811 (Tex.Crim.App.1997);
Ex Parte Keller, 173 S.W.3d 492, 497-499 (Tex.Crim,App.ZOOB).
7. The trial court clearly abused its discretion by fail-
ing to make any findings of fact and conclusions of law of the
apparent conflict between two Gov't Codes used by the BPP
regarding "in custody" and "out of custody" during release on
parole or mandatory-supervision. The State prosecution and the
trial court failed to notify the Court of Criminal Appeals in
rthe habeas record that the BPP utilizes the specific language
under Gov't Code §508.143 (a) and (b) to require releasees to
remain "in custody" of TECJ printed on the Certificates of
Parole and Mandatory Supervision which prisoners must sign
before being released from TDCJ prison. BPP policy for the
retroactive cancellation of street-time already served on a
Jury Sentence as "out of custody time" by the BPP's discretion-
ary retroactive application of the latest version of Gov't
Code Sections 508.149(a) and 508.283(b) substantially conflicts
with Applicant's Valid vested liberty interest and equal pro-
tedf@n of law under Gov't Code Section 508.143 (a) and (b).
The State raised this issue in its proposed order filed
on July l, 2015, and TDCJ's Jennifer Robinson responded that
Applicant was in "constructive custody" but not "in custody"
of the State or TDCJ. The Legislative language of 508.143 (a)
or (b) does not use or imply the language of "constructive
custody" and, there was no evidence offered by TDCJ that Appli-
cant absconded from TDCJ or the State of Texas for Cause 481656
and TDCJ#475245 while on parole or mandatory supervision.
Merrit v. State, 252 S.W.3d 757 n.3, n.4; Tex.Gov't Code Ann. §
311.011 (Vern.2005) mmi§3LL021. Saaalm): Russo v. Johnson,
129 F.Supp.2d 1012 (S.D.Tex.2001)(not entitled to street time
for absconding from TDCJ and the State of Texas).
IV .
CONCLUSION
Applicant lawfully served the complete Jury punishment
of 27-years of Cause 481656 on August 9th, 2014, and he remains
unlawfully restrained in his liberty without due process in
violation of clearly established federal and state laws.
Applicant is entitled to mandamus relief which requires
the trial court to make an independent analysis, findings of
fact and conclusions of law, on each and every claim made in the
[SECOND`amended application for writ of habeas corpus and the
qattached memorandum of law] as required by due process and
due course of law for.the purpose of making the habeas record
speak the truth in the interest of justice and in the public
interest.
WHEREFORE, premises considered, Applicant respectfully
requests for the Court of Criminal Appeals to grant Mandamus
relief because he has no other adequate remedy at law under
Art511;07, C.C.P., to correct clear abuses of discretion by
the trial court during the habeas corpus proceedings in which
the current habeas record contains false and misleading infor-v
mation or non-adjudicated constitutional issues necessary for
resolution by the trial court.
r
Respectfully submitted,
December 14, 2015, f
~w John Robert Gray
(Applicant pro se)
Boyd Unit-#475245
200 Spur 113
Teague,Tx 75860
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above
[AMENDED APBLICATION FOR A WRIT OF MANDAMUS] has been served to
'the assigned Judge of the trial court, by placing same in a pre-
sealed stamped envelope addressed to:
Honorable Brad Hart, District Court Judge
230th District Court; 16th Floor
1201 Franklin Street
Houston, Texas 77002
and mailed on this the 14th day of December, 2015,
obert Gray
(Applicant pro se)
Boyd Unit-#475245
200 Spur 113
Teague, Texas 75860