CONTENTS v01. 18, NO. 10 FEATURE ARTICLES - Voice For The ...

strangely, theattomey failed to seekapetitionfordiscretionaryreview with thecourtof Criminal Appeals.Coming to the realization that he was acandidate for being declared an ineffectivecounsel, Mr. Rodriguez's attorney filed anoriginal petition for writ of habeas corpusin the convicting district court in El PasoCounty. Thebasis for the writ was thatMr.Rodriguez was restrained by virtue of hisconviction and that Mr. Rodriguez wasbeing deprived of his right to an appeal byvirtue of ineffective assistance of counsel.The district court, after a hearing, foundthat counsel was ineffective and concludedthat under&icle V, Section 8 of the TexasConstitution, the writ should be grantedand ordered that Mr. Rodriguez be givenan out-of-tiute nppeal. Armed with thisorder,Mr. Rodriguezonceagain attemptedto appeal his theft conviction. Not surprisingly,the State fded a motion to dismssthe appeal which the appellate courtgranted, holding that the district court didnot have the jurisdiction to grant Mr.Rodriguez an out-of-time appeal. Further,the appellate court directed its clerk to notaccept the record or the (again proffered)motion for extension of time in Mr.Rodriguez's case. Faced with these conflictingorders, Mr. Rodriguez's Iawyerfiled a petition for writ of mandamus withthe Court of Criminal Appeals seeking tocompel the appellate court to comply withthe district court's order granting the outof-timeappeal.The anomaly of the Rodriguez case hadits genesis infipnrte Renier, 734 S.W.2d349 (Tex. Gim. App. 1987J7 In that case,the Court of Criminal Appeals took itselfout of the post-conviction writ of habeascorpus business in those cases not involvingactual confinement from a felony conviction.&Since Mr. Rodriguez was onprobation and, therefore, 1toi confined, theCourt of Criminal Appeals had no jurisdictionto rule on his application for writ ofhabeas corpus. However, under article11.05 of the Texas Code of Criminal Procedure,thedistrict court alsohas writjurisdiction.Because the district (and county)courts' jurisdiction extends to cases wheremerely "restraint," as opposed to "coniinement"is involved, these lower courts havejurisdiction over writs filed byprobationers and misdemeanants. SeeRenier, 734 S.W.2d at 353; TEX. CODECRIM. PROC. ANN. art. 11.22 (Vernon1987).In Rodriguez, the Court of Criminal Appealsholds that a writ of habeas corpuspursuant to TEX. CODE CRIM. PROC.ANN. art. 11.05 is theproperaction toseekredress; that this "Great Writ" exists toaccommodate just such situations where aperson is restrained and afforded norecourse under statutory law. The highercourt thenconditionallv aants the aoolica-. - ' .tion for wit ofmandamusdirecting that themiddlecourt must obey thelower court andmust accept the appeal? HI. No. 70,003 (Tex Crim. App., April 5, 1989).2. Slip op. at p. 1 (Teague, I., mncuning).3. Slip op. at p. I (McCormick, P.J., dissenting).4. Presiding Judge McComick chxges lhat theplumlily has acled hastily in granting lrial courts thepwer to order appellate couris to hear appeals thatthe appellate courts are without jurisdiction to hear.He writes that no stahlte or WnsliNliond provisionprovidesfortheissuanceoftheaderasentend hereinby the trial court. He merts that an original writ ofhabeascorpus totheCourtofCrimrnd Appeals wouldbe proper.Judge Berchelzuannehallenges thedecision in Ermrfe Rerzier irrfio. He criticizes that case's holdinedue.JudgcDuncanalsodlsscntal, butwithwtopinion.5. Judges ClintonandTeagrnejoined theplwality,but authored concurring opinions. Josice Clintonnlaltes reference to the "Great Writ" in Cmtnote * tohis opinion. Slip op. at p. 3 (Clinlan. J, concurring).6. In a faofnote in the plurality opinion, JudgeMiller states that there is no provision in the TexasRules of Appellate Procedure allowing the late tilingofmionttoextendthetimeforfilingtherecord.(Slipop. at p. 2.) Surprisingly, not one author in any of thetion, you will need the jury selectionsheets, showing the strikes by thestate andthe defense. You may also want any jurorinfom~ation cads to use indetemuning thevalidity of the prosecutor's reasons for exercisinga peremptory challenge. If youhave a question based on a video tape, anaudiotape, or someother important item ofevidence, detemune whether that has beenforwarded to the court. Most of the time itwill not, unless specifically requested byappellant. If it is not there, file a motion toopinions written in this case mentions mle 2@),S~qmaio,t ofRulesirr Cdari,rnlMnllers. Other mlesnot mentioned xemle 53 (m), When No Smrenle?t ofI'nctsFiledin Appdsof Crimi#mICnses, andmlc83,No. . . Dis,r~issnl for Wan1 of Foml or Srdbsfmee, ofthe Texas Rules of Appellate Procedure.7. Decided undcr TEX. CODE CRIM. PROC.ANN. art. 11.07.8. It should beem~hasized that the haldinz in the~mirignez case appk to he limited to ths easesinvolving pmbationers and persons convicted of misdemneanon.9. The plurality opinion states:. . . the act to be compelled, the filing anddocketing of relator's appeal by the Court ofAppeals, is a ministerial one.It then, however, states:Having concluded that the trial court had thejurisdiction to grant therelator an mt oftinleappeal, we will mnditianally !pnt the application for a wit ofmandamus.I submit that thefiling and rlockerittg of documenuwith the court is a ministerial funcfion. but theCrim. App. 1981).Wbuld it not have been the better mme for thehigh court toconclude that the failureoftheappellatecourt to "file" thefindings of inefffftivcassistanccofcomd and the mion for extension was the actthenrehsed togrant theout-of-tinleappeal,apetitionfor discmtionary review would be available. Even,dare I say it, a writ of mandamus in lhe Court ofCriminal Appcals would he available to review anabue of discretion, if any, by the appellate court.Hordil8on v. Smfe, 579 S.W.26 213 (Tcx. Crim. App.1979). Seedso, Tex. R. App. P. 83. Under this alternativeapproach, Rmier would not hwe to be discarded,no violence to the orderly adminisUation ofjusticewouldoccur, andtheresult would hethesanle.supplement the record to insure that theevidencegets to thecourt for review. It willdo you little gcod to argue about the contentsof an audio or video tape if the courtdoes not have it in its possession.With a systematic approach to reviewinga case for appeal, counsel can quicklyfamiliarize themselves with therecord, anddetermine those issues of significance.Once youhave a cleargraspof the facts andtheissues, research is mucheasier. With allthe infomation at your fingertips, preparationof the brief comes down to organizingyour research and integrating it with thefacts.June 1989 1 VOICE for the Defetrse 41