WR-83,924-01
No. ________________________
EX PARTE RECEIVED
COURT OF CRIMINAL APPEALS
9/22/2015
TIMOTHY WADE MITLEFF, ABEL ACOSTA, CLERK
Applicant
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
Comes now TIMOTHY WADE MITLEFF, Applicant, and files this Petition
for Writ of Habeas Corpus. In support, Applicant shows the Court the following:
I.
Applicant is currently being illegally restrained of his liberty due to an order
entered by the District Judge of the 8th Judicial District Court, The Honorable
Eddie Northcutt, Respondent.
II.
On Friday, September 18, 2015, Respondent quadrupled Applicant’s bail.
Previously, Respondent found Applicant to be indigent, and Respondent has never
found that Applicant ever knowingly violated any court order while he was out on
bail. As set forth below, Respondent’s order raises a serious constitutional due
process issue – namely, Applicant’s right to prior, meaningful notice.
Petition for Writ of Habeas Corpus Page 1
III.
Applicant is charged by indictment with Assault Family Violence/Impede
Breath. See TEX. PEN. CODE §22.01(b)(2)(B). According to the indictment, a
certified copy of which is attached hereto as Exhibit A, Applicant caused “bodily
injury to ALISHIA MITLEFF” on or about “the 29 th day of March, 2015.”
According to the indictment, Ms. Mitleff is “a member of [Applicant’s] family.”
Ms. Mitleff is Applicant’s wife.
IV.
According to records from the Sheriff’s Office, Applicant was released on
$25,000 bail on March 31, 2015. A certified copy of the bail bond is attached
hereto at Exhibit B.
V.
Exhibit B contains no provision that prohibits Applicant from
communicating or even living together with his wife.
VI.
Following his release on bail Applicant resumed living with his wife.
During this time Respondent heard no evidence of any untoward activity by
Applicant – no threats, no calls to law enforcement about him, etc. – at any time.
Petition for Writ of Habeas Corpus Page 2
VII.
The Office of the District Attorney discovered that Ms. Mitleff and
Applicant had resumed living together following Applicant’s release on bail. On
September 2, 2015 – i.e., more than five months after Applicant had been released
on bail -- the State served and presented to Respondent a document titled Motion
to Add a Condition to Defendant’s Bond, a certified copy of which is attached
hereto as Exhibit C. In the motion the State asks Respondent to enter an order
prohibiting Applicant from having any contact with his wife, never mind the five
months that the two had been living together since Applicant’s release on bail.
VIII.
Respondent entered an order granting the State’s motion referenced in
Paragraph VII supra. See “Order Adding Bond Conditions,” a certified copy of
which is attached hereto as Exhibit D. Respondent entered this order on
September 2, 2015.
IX.
On September 2, 2015 Respondent verbally instructed the State to serve
Applicant by hand with Exhibit D. Respondent also wrote the following at the
bottom of Exhibit D -- “To be served by law enforcement.”
Petition for Writ of Habeas Corpus Page 3
X.
On September 18, 2015 law enforcement appeared before Respondent and
testified that although they had made about seven attempts, they had been unable
to locate and serve Applicant with Exhibit D.
XI.
Applicant eventually did receive Exhibit D. Applicant received Exhibit D
on September 18, 2015. That is because Applicant was in court on September 18,
2015. Applicant was in court in compliance with an order that he had previously
received from Respondent. See document titled Appearance and Announcement
Form, dated August 21, 2015, a certified copy of which is attached hereto as
Exhibit E, which required Applicant to appear in court on September 18, 2015.
XII.
On September 9, 2015, the State filed a document titled Motion to Hold
Bond Insufficient and Increase Bond, a certified copy of which is attached hereto
as Exhibit F. On page 2 of Exhibit F, the State asks Respondent to increase the
$25,000 bail bond to $100,000.
XIII.
On September 18, 2015 Respondent held an evidentiary hearing on the
record on the State’s motion referenced in Paragraph XII supra.
Petition for Writ of Habeas Corpus Page 4
XIV.
After hearing the evidence, Respondent stated from the bench that he
believed Applicant had been aware that law enforcement had been trying to serve
him with Exhibit D, and that Applicant had been evading service. Respondent
then stated on the record that he lacked “confidence” in Applicant’s willingness to
follow orders.
XV.
Respondent granted the State’s motion to quadruple Applicant’s bond –
specifically, from $25,000 to $100,000. A certified copy of document titled Order
Setting Bond is attached hereto as Exhibit G.
XVI.
Respondent entered the order referenced in Paragraph XV supra --
A. EVEN THOUGH Respondent had previously made a
written finding that Applicant was indigent. See certified copy of
document titled Affidavit of Indigence, attached hereto as Exhibit H
at page 3.
B. EVEN THOUGH Applicant had appeared in court on
Friday, September 18, 2015 in compliance with a prior order entered
on August 21, 2015 by Respondent. See Exhibit E (“Appearance and
Petition for Writ of Habeas Corpus Page 5
Announcement Form”).
C. EVEN THOUGH before September 18, 2015 Applicant
had complied with at least two (2) prior orders from Respondent
requiring him to appear in court. See Exhibit I, which contains two
(2) documents, both of them titled Appearance and Announcement
Form, which Respondent entered on the following dates -- July 10,
2015, and August 7, 2015, respectively.
D. EVEN THOUGH the trial court’s file contains no
evidence that Applicant had ever failed to appear in court pursuant to
any order entered by Respondent.
E. EVEN THOUGH Respondent heard no evidence of any
untoward or nefarious conduct by Applicant. See and compare Ex
parte Beason, 1993 Tex. App. LEXIS 2341 (Tex. App. – Houston [1st
Dist.] Aug. 23, 1993, no writ) (held, amount of bail was excessive,
where among other things there was no evidence of threats by
appellant against others).
F. AND EVEN THOUGH during the September 18, 2015
hearing neither Respondent nor the State had identified a single
authority or source – no statute, no court case (published or
Petition for Writ of Habeas Corpus Page 6
otherwise), no court rule, and no bond condition – that Applicant had
violated during the five-plus months while he was out on bail.
XVII.
“The writ of habeas corpus is the remedy to be used when any person is
restrained in his liberty." Ex parte Robinson, 641 S.W.2d 552, 553 (Tex. Crim.
App. 1982) (citing statute). See e.g. Ex parte Clear, 573 S.W.2d 224 (Tex. Crim.
App. 1978)(writ of habeas corpus used to challenge increase in bail).
In this case, Applicant may use a pretrial writ, as opposed to an
interlocutory appeal, to assert his constitutional protections with respect to bail.
Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014), followed in, Vanhalst v.
State, 2015 Tex. App. LEXIS 8917 (Tex. App. – Texarkana Aug. 26, 2015). See
also e.g. Ex parte Keller, 595 S.W.2d 531 (Tex. Crim. App. 1980).
XVIII.
One constitutional protection is the right to due process, and one component
of due process is fair notice. This Court made this plain when it quoted the U.S.
Supreme Court on what due process means. See Hunter v. State, 1985 Tex. Crim.
App. LEXIS 1726 (Tex. Crim. App. Oct. 23, 1985)(quoting Cleveland Bd. Of
Educ. v. Loudermill, 470 U.S. 532 (1985), and Matthews v. Eldridge, 424 U.S. 319
(1972)).
Petition for Writ of Habeas Corpus Page 7
XIX.
Meaningful, proper notice is conspicuously absent here. Before September
18, 2015, and even if all facts are construed in Respondent’s favor, Applicant’s
only source for learning that the conditions of his bond may have changed does
not come from any agent of the State. Rather, Applicant’s only alleged source
comes from the proverbial grapevine.
If logic is any guide, getting wind that some change is afoot in one’s bond
conditions, even if true, does not satisfy any notion of due process. See and
compare Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004)(held,
written notice that an inmate’s parole will be reviewed at some unspecified time in
the future, coupled with a request that inmate submit relevant materials "as soon as
possible," was constitutionally deficient notice).
Applicant’s level of notice, assuming for argument’s sake only there was
any, would not even satisfy due process for a civil case. See e.g. Wilson v. Dunn,
800 S.W.2d 833, 836 (Tex. 1990) ("Actual notice to a defendant, without proper
service, is not sufficient to convey upon the court jurisdiction to render default
judgment against him."). See also e.g. Grasz v. Grasz, 608 S.W.2d 356, 358 (Tex.
Civ. App. – Dallas 1980, no writ) (“mere notice that one has been sued does not
obligate the defendant to appear and answer”). A fortiori, Respondent’s apparent
Petition for Writ of Habeas Corpus Page 8
reliance on the proverbial grapevine, and nothing more, as the basis for
quadrupling Applicant’s bond cannot possibly satisfy constitutional due process in
a case where Applicant’s liberty is at stake.
XX.
Applicant was together with his wife -- without incident -- for more than
five months before Respondent entered the Order Adding Bond Conditions,
attached as Exhibit D, on September 2, 2015. This is unremarkable and should
cause no alarm, especially when no agent of the State ever told Applicant and his
wife they could not do this.
If, more than five months after the fact, Respondent decides to enter an
order upending this unremarkable arrangement and requiring Applicant to separate
from his wife – indeed, requiring Applicant not even to communicate with his wife
– then Applicant should be able to rely on something more formal, more certain,
and more concrete, than the rumor mill.
XXI.
Texas state law mandates that bail cannot to be used as an instrument of
oppression. TEX. CODE CRIM. P. art. 17.15(2). Unfortunately, that is the result of
Respondent’s Order Setting Bond (Exhibit G) entered on September 18, 2015.
Quadrupling Applicant’s bail because Applicant may have not followed up on
Petition for Writ of Habeas Corpus Page 9
stray remarks that he may or may not have heard from others, none of whom are
even alleged to be agents of the State, falls far short of any serious notions about
constitutional due process.
XXII.
Respondent’s Order Setting Bond -- entered on September 18, 2015, and a
certified copy of which is attached hereto as Exhibit G -- violates the Fifth and
Fourteenth Amendments to the U.S. Constitution, as well as Article One, Section
13 of the Texas Constitution, because Applicant failed to receive meaningful
notice.
WHREFORE, Applicant prays that this Court grant this application for writ
of habeas corpus and that this Court order Applicant discharged from the illegal
restraint he is currently suffering.
Dated: September 21, 2015
Respectfully submitted,
By: __/s/ Wade A. Forsman_
Wade A. Forsman
State Bar No. 07264257
P.O. Box 918
Sulphur Springs, TX 75483-0918
903.689.4144 East Texas
972.499.4004 Dallas/Fort Worth
903.689.7001 Facsimile
wade@forsmanlaw.com
Petition for Writ of Habeas Corpus Page 10
Attorney for Applicant,
Timothy Wade Mitleff
Declaration
Pursuant to section 132.001 of the Civil Practice and Remedies Code, my
name is Wade A. Forsman, and I am the appointed attorney for the Applicant,
Timothy Wade Mitleff. My date of birth is June 14, 1058, and my work address is
P.O. Box 918, Sulphur Springs, Hopkins County, Texas 75483-0918, United
States of America. Executed in Hopkins County, State of Texas, on this the 21st
day of September 2015.
/s/ Wade A. Forsman
___________________________
Wade A. Forsman
CERTIFICATE OF SERVICE
This is to certify that on September 21, 2015, I served a true and correct
copy of the above and foregoing Petition for Writ of Habeas Corpus by email on
Matthew Howard Harris, Assistant District Attorney, at 114 Main Street, Sulphur
Springs, Texas 75482.
__/s/ Wade A. Forsman_
Wade A. Forsman
Petition for Writ of Habeas Corpus Page 11
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Mitleff, Timothy Wade
Combined Opinion