Opinion
No: 04-18-00700-CV
09-27-2018
IN RE STEPHEN PATRICK BLACK, Relator.
COUNSEL FOR RELATOR Stephen Patrick Black Relator Pro Se Texas Civil Commitment Center 2600 south Sunset Avenue Littlefield, Texas 79339 806-485-8100 COUNSEL FOR REAL PARTY IN INTEREST Unknown
On Petition for Writ of Mandamus to the 274th District Court, Guadalupe, Texas
Trial Court Cause No: CV-15-1805
RELATOR'S PETITION FOR WRIT OF MANDAMUS
Stephen Patrick Black
Relator Pro Se
Texas Civil Commitment Center
2600 South Sunset Avenue
Littlefield, Texas 79339
806-485-8100 IDENTITY OF PARTIES AND COUNSEL RELATOR
Stephen Patrick Black COUNSEL FOR RELATOR
Stephen Patrick Black
Relator Pro Se
Texas Civil Commitment Center
2600 south Sunset Avenue
Littlefield, Texas 79339
806-485-8100 RESPONDENT
274 th District Court, Guadalupe, Texas REAL PARTY IN INTEREST
The Honorable Judge Gary Steele COUNSEL FOR REAL PARTY IN INTEREST
Unknown TABLE OF CONTENTS Identity of Parties and Counsel ...................................................................................... ii Table of Contents ............................................................................................................ iii Index of Authorities .................................................................................................... iv-vi Statement of Case .................................................................................................... vii-viii Statement of Jurisdiction ............................................................................................ viii Issues Presented ............................................................................................................... ix Statement of Facts ....................................................................................................... 1-8 Summary of the Argument ............................................................................................. 9 Argument ................................................................................................................ 10-16 Conclusion ....................................................................................................................... 17 Prayer for Relief ............................................................................................................. 17 Certificate of Service ...................................................................................................... 18 Certificate of Compliance .............................................................................................. 18 Unsworn Declaration ..................................................................................................... 18 Appendix ................................................................................................................... 19-21 INDEX OF AUTHORITIES FEDERAL CASES Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942) ......................... 16 Bailey v. Cain, 2018 U.S. Dist. LEXIS 1983 ................................................................... 14 Faretta v. California, 422 U.S. 806, 835 (1975) .................................................... 14, 16 McKaskle v. Wiggins, 465 U.S. 168 (1984) .................................................................. 16 State v. Nixon, 222 So. 3d 123, 133 (La. App. 2 Cir. 2017) ....................................... 14 United States v. Pennington, 2018 U.S. Dist. LEXIS 28066 ........................................ 16 United States v. Trachanas, 605 Fed. Appx. 751 ........................................................ 15 STATE CASES Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992) (orig. proceeding) ........................................... 13 Broadway v. State, 2018 Tex. App. LEXIS 2628 ........................................................... 15 Cofer v State, 2017 Tex. App. LEXIS 8360 ................................................................... 16 De Rouville v. State, 2018 Tex. App. Lexis 265 ............................................................ 15 Eli Lilly and Co. v. Marshall, 829 S.W.2d 157 (Tex. 1992) ......................................... 13 Ford Motor Co. v. Garcia, 363 S.W.3d 573,578 (Tex. 2012) ..................................... 10 Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986) ......................... 15 Ginn v Forrester, 282 S.W. 3d 513, 517 (2009) ............................................................ 6 In re Allstate Vehicle & Property Insurance Co., 2018 Tex. App. LEXIS 3146 (May 3, 2018, orig. proceeding) .................................... 12 In re Bishop, 2006 Tex. App. LEXIS 7451 (Tex. App.-Houston [14th Dist.] Aug. 24, 2006, orig. proceeding) (per curiam).......................................13 In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.-Texarkana 2008) In re Brown, 2017 Tex. App. LEXIS 3333 ..................................................................... 12 In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-EI Paso 2001, orig. proceeding) ...... 11 In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) ............... 10 In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) ............................................... 10 In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex. App.-Corpus Christi 2014, orig. proceeding) ..................................................... 13 In re Grecon, Inc., 2018 Tex. App. LEXIS 449 .............................................................. 10 In re Greenwell, 160 S.W.3d 286, 288 (2005) (Tex. App.-Texarkana 2005, orig. proceeding) ........................................................... 12 In re H.E.B. Grocery Co., 492 S.W.3d at 302 ............................................................... 10 In re Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding) ..................................................................... 11-13 In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) ....................... 10 In Re Newport Classic Homes, LP. LLC, 2018 Tex. App. LEXIS 3072 (San Antonio - May 2, 2018, orig. proc.) .............................. 12 In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) ........................... 11-12 In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) ......................... 10 In re R. B. Deblanc, III, 2018 Tex. App. LEXIS 3038 ............................................... 11-12 In re Reed, 2018 Tex. App. LEXIS 2998 ........................................................................ 15 In re Schklair, 2017 Tex. App. LEXIS 5861 ................................................................... 8 In re Trevino, 2018 Tex. App. LEXIS 2565 ................................................................... 10 In re Univar Usa, Inc., 311 S.W. 3d 175 (2010) .......................................................... 10 In re William Earle Coffey, Jr., 2018 Tex. App. LEXIS 2424 ....................................... 13 Keigley v. State, 2018 Tex. App. LEXIS 2323 ................................................................ 14 Lathem v. State, 514 S.W.3d 796, 802 (Tex. App.-Fort Worth 2017, no pet.) ....... 14 Morris v. State, 2018 Tex. App. LEXIS 1568 ................................................................. 16 State v. Cullen, 195 S.W. 3d 696 (2006) ..................................................................... 10 Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) ............ 10-12 Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008) .............................. 15 STATE STATUTES Texas Health and Safety Code § § 841.101 - 841.103 ............................................... 4 Texas Health and Safety Code § 841.102(c)(2) ............................................................ 7 Texas Health and Safety Code § 841.005 ............................................................... vii, 4 Texas Health and Safety Code § 841.005(b) ............................................................... vii Texas Health and Safety Code § 841.081(a) ................................................................. 1 Texas Health and Safety Code § 841.082(a)(4)(A) ....................................................... 3 Texas Health and Safety Code § 841.082(a)(4)(A)(i)-(iii) ............................................ 3 Texas Health and Safety Code § 841.145(b)(c) ............................................................ 4 MISCELLANEOUS Texas Government Code § 22.220 ............................................................................... vii Texas Government Code § 22.221(a)(b)(1) ................................................................. vii Texas Rules of Appellate Procedure, Rule 52.1 .......................................................... vii Senate Bill 1576 ................................................................................................................ 3 Texas Lawyer's Creed and Mandate for Professionalism Rule II. 1-2 ....................... 6 Texas Disciplinary Rules of Professional Conduct Rule 1.01(b)(1)(2)(c) ................... 6 Texas Disciplinary Rules of Professional Conduct Rule 1.03(a)(b) ............................ 8 Texas Disciplinary Rules of Professional Conduct Rule 1.06 .................................... 15 Texas Disciplinary Rules of Professional Conduct Rule 3.04(c)(5) ............................. 8 Texas Disciplinary Rules of Professional Conduct Rule 8.04(12) ............................... 6 STATEMENT OF THE CASE
Stephen Patrick Black (Hereinafter Relator) was adjudicated a sexually violent predator (SVP) on April 7, 2018, pursuant to Title 11, of the Texas Health and Safety Code Chapter 841 (HSC) in the 274th Judicial District Court of Guadalupe County, Texas. The Honorable Judge Gary Steele presiding (hereinafter Respondent).
Relator was statutorily represented by the State Counsel for Offenders (SCFO), pursuant to HSC § 841.005 at the initial civil commitment trial, and is subsequently represented in biennial reviews or other proceedings. It is the statutory duty of SCFO's to represent civilly committed persons in all proceedings attached to their commitment, but theoretically they decide "which" proceedings they will attend or not attend. See HSC § 841.005(b).
Relator has filed numerous motions in the committing court beginning on October 16, 2017. (See Exhibit # 1 - Docket Sheet). The Respondent has failed to recognize Relator's Pro Se filings, and further refuses to set a hearing to rule on them. Relator has filed motions to set hearings, and motions to compel with no response. Furthermore, the Respondent has failed to recognize Relator as a Pro Se litigant who has formally requested his right to self-representation. On January 5, 2018, Relator terminated SCFO's as his statutorily court appointed counsel when he filed a Motion to Appoint Counsel, and on Page 2 in the Statement of Facts he specifically stated he wanted to terminate their services. (See Exhibit # 10).
Relator filed numerous motions in conjunction with his 2018 Biennial Review, and the Respondent refused to hear and rule on them. Consequently, Relator was ordered to two more years of indefinite civil commitment.
Relator contends, a different outcome of the could have resulted from the Biennial review of facts hearing had the Respondent considered all the filings presented. These filings supported the fact that Relator's alleged behavioral abnormality had changed to the extent he would no longer pose a threat to society.
As A direct consequence, Relator was ordered to two more years of indefinite commitment by the Respondent. As a result, Relator filed several more motions, but only received file stamp copies on a few of them, hereto as follows:
1. Motion for Finding of Facts and Conclusions of Law
2. Motion to Set Aside/Vacate or Reconsider
3. Affidavit in Support of Motion to Vacate
4. Notice of Appeal (File Stamp Copy)
5. Motion to Compel Hearing and Ruling on Appeal/Other Motions
6. Designation of Clerk's Record for Appeal
(See Exhibit # 29 - It Contains all Six Motions)
Accordingly, Relator now files this writ of mandamus seeking relief from the Fourth Court of Appeals, instructing the Respondent to recognize his Constitutional right to self-representation, and set a hearing to rule on all previously filed motions.
JURISDICTION
The Fourth Court of Appeals has original jurisdiction over the 274th Judicial District Court to issue a writ of mandamus, pursuant to the Texas Government Code §§ 22.220, and 22.221(a)(b)(1), and the Tex. R. of Appellate Procedure, Rule 52.1.
ISSUES PRESENTED
ISSUE 1: Respondent has abused his discretion by failing to set a hearing date and rule on all motions properly filed by Relator.
ISSUE 2: Respondent is violating Relator's constitutional right of self-representation, and has failed to recognize Relator has clearly and unequivocally terminated the services of SCFO's as his statutorily appointed counsel.
STATEMENT OF FACTS
Relator was adjudicated as an SVP on April 7, 2016, pursuant to HSC § 841.081(a) in the 274th Judicial District Court of Guadalupe County, Texas. Thereafter, Relator was returned to the Texas Department of Criminal Justice (TDCJ) to discharge his sentence. Once discharged, Relator was subsequently transported to the Texas Civil Commitment Center (TCCC) for supervision and treatment, overseen by the Texas Civil Commitment Office (TCCO).
RELATOR'S FILED MOTIONS TO HAVE
INACCURATE INFORMATION REMOVED
Upon arrival at TCCC Relator was assigned a clinical therapist who worked for Correct Care Recovery Solutions (CCRS) to provide State mandated sex offender treatment. Relator began sex offender specific treatment approximately in October 2016. In December 2016, clinical therapist Cynthia Burns developed an Integrated Care Plan (ICP) for relator containing inaccurate information. The inaccurate information contained in the ICP stated Relator had Five Counts of Indecency with a Child, although the judgment of conviction states only ONE.
Relator informed the therapist of the inaccurate information, but she would not aid in correcting it. He informed the therapist that the inaccurate information originated with psychologist Darrell B. Turner. Turner initially interviewed Relator for a behavioral abnormality, prior to civil commitment, and negligently developed that inaccurate information. Relator ensued in several battles with CCRS and TCCO to have the inaccurate information removed from his files with no resolution.
Relator filed numerous grievances with CCRS who hired the clinical therapist, and with the TCCO where the therapist derived the inaccurate information. Relator then tried contacting Darrell B. Turner by mail to correct his inaccurate evaluation, but he, refused to respond. Thereafter, Relator subsequently filed a lawsuit in the Northern District of Texas, Lubbock Division (the case is still pending).
On October 16, 2017, Relator then filed a motion in the committing court to have the inaccurate information removed, and received a file stamp copy from Debra Crow, the Guadalupe County District Clerk. (See Exhibit # 2) Coincidently, the committing court happens to be Relator's convicting court, of the criminal conviction that is in question. Therefore, the committing court has jurisdiction to compel Darrell B. Turner to correct his inaccurate evaluation. Thereby, allowing Relator to receive truthful treatment based on adjudicative facts, and not by the psychologist's incorrect information which created a harmful error.
Relator patiently waited for the Respondent to set a hearing date, and rule on the motion, but this was in vain. Relator then filed a Motion to Compel Ruling on the initial motion, and once more he received a file stamped copy from the district clerk. (See Exhibit #3). In spite of that, Relator patiently waited for a hearing date and ruling, but received no response. Correspondingly, on February 8, 2018, Relator filed a subsequent Motion for Notice to Set Hearing on the two previous motions, but repeatedly the Respondent never responded. (See Exhibit #4).
Thereafter, Relator wrote a correspondence to SCFO's requesting their intervention, but their response stated they possibly could help at his biennial review. (See Exhibit #5). Relator's faith in the civil judicial system was fading, but he persevered.
RELATOR'S FILED MOTIONS TO HAVE GPS
LEG-MONITOR TRACKING DEVICE REMOVED
Prior to Relator discharging TDCJ, at the Bill Clements Unit, Relator was forced by TCCO agents to submit and be fitted with a GPS leg-monitor tracking device. When queried as to why Relator would have to wear such a device in a maximum-security facility, he was told it was pursuant to HSC § 841.082(a)(4)(A).
Thereafter, Relator filed numerous grievances with TCCO and CCRS to have the GPS device removed with no resolution. On September 1, 2017, Senate Bill 1576 was passed, wherein allowing Tier Levels 3 & 4 (civilly committed) residents, of the TCCC, to have their GPS devices removed: But Relator, and other similarly situated residents had to continue wearing them.
Accordingly, on December 4, 2017, Relator filed a Petition in the committing court to have the GPS leg-monitor tracking device removed. (See Exhibit #6). The Petition affected him and all other similarly situated residents. Moreover, he was challenging the constitutionality of the newly amended HSC § 841.082(a)(4)(A)(i)-(iii). Relator's complaint stated he is being punished by having to submit to the use of a GPS leg-monitor tracking device while detained in a maximum-security facility. He did not wear one while imprisoned, why is he being forced to wear one in a prison facility that is more secure than most prisons he was assigned to in TDCJ? The Respondent never ruled on this motion either.
On February 8, 2018, Relator filed a Motion for Notice to Set Hearing on Petition to Have Tracking Device Removed, and all Relator received from the court was a file stamped copy. (See Exhibit #7). Thereafter, on March 29, 2018, Relator filed a Challenge to a Constitutionality of a State Statute Form to accompany the previously filed petition, but Respondent still refused to respond. (See Exhibit #8).
RELATOR'S FILED MOTIONS IN REFERENCE
TO HIS 2018 BIENNIAL REVIEW
Relator was adjudicated an SVP on April 7, 2016. Every two years on or about that date he has a statutory right to a Biennial Review. This review assists the Respondent to assess if Relator is safe for release to the community, pursuant to the HSC § § 841.101 - 841.103. In preparation for the upcoming Biennial Review relator filed a series of motions. Prior those filings, Relator sent a correspondence to the SCFO's requesting the services of an expert witness. (Exhibit 9). This expert was needed to balance the scales of justice, in that the State hires their expert to interview the Relator, but as an indigent he cannot afford one.
SCFO's refused to hire an expert to evaluate the Relator for the 2018 Biennial Review, so he concluded this as a self-termination of their duty to represent him at all proceedings, pursuant to HSC § 841.005. On January 5, 2018, Relator filed a Motion to Appoint an Expert at the court's expense, pursuant to the HSC § 841.145(b)(c). (See Exhibit # 10).
(b) On the request of an indigent person examined under this chapter, the judge shall determine whether expert services for the person are necessary. If the judge determines that the services are necessary, the judge shall appoint an expert to perform an examination or participate in a civil commitment proceeding on the person's behalf and shall approve compensation for the expert as appropriat[e].
Additionally, on January 5, 2018, Relator also filed a Motion to Appoint Counsel, wherein stating on page 2, "Therefore, Petitioner respectfully moves the Court to terminate and preclude SCFO as his legal representative from this day forward." Thereafter, on February 14, 2018, Relator filed a Motion for Notice to Set Hearing for Appointment of an Expert Witness. (See Exhibit #11). The Respondent continued refusing to set a hearing and rule on all the properly filed motions.
Relator wrote a subsequent correspondence to the SCFO's requesting if they could be present during the State expert's evaluation, but they refused to be present, further perpetuating termination of their services. (See Exhibit #12). The State expert was scheduled to conduct an interview on February 21, 2018. Therefore, on February 22, 2018, Relator filed a subsequent Motion to Appoint Expert Witness, because the Respondent failed to rule on the first motion requesting an expert. (Exhibit # 13).
On March 5, 2018, after Relator filed several motions in conjunction with the 2018 Biennial Review, he filed several more motions concurrently, hereto:
1.) Motion to Stay Biennial Review Proceedings Pending Appointment of an Expert for Petitioner (See Exhibit #14).
2.) A Notice to Set Hearing: on that motion (See Exhibit #15).
3.) An Affidavit attesting to all the motions filed in conjunction with the Biennial Review. (See Exhibit #16).
On March 12, 2018, Relator's TCCO case manager Peter Caswell summoned him to his office at TCCC, notifying Relator he had to sign some legal documents sent by SCFO's. The documents were requesting Relator to hire SCFO's as his counsel for the Biennial Review. Relator refused to sign them, and the case manager made a statement at the bottom of the document, stating: "Client has requested other representation." (See Exhibit #17).
Furthermore, relator made a statement of his own at the bottom of the document, stating: "Stephen Black has filed several motions in the committing court regarding the Appointment of Counsel and Expert Witness. He is awaiting a response from the judge. Additionally, he filed a Motion to Stay Biennial Review Proceeding until these motions are answered." It was signed on March 12, 2018. (See Exhibit #17).
The SCFO's failed to notify Relator of the pending date (wherein was May 9, 2018) set for the Biennial Review hearing, thereto forfeiting his ability to timely file other relevant facts and information. Thus violating the Texas Lawyer's Creed and Mandate for Professionalism (TLCMP) Rule II. 1-2, and Texas Disciplinary Rules of Professional Conduct (TDRPC) Rule 1.01(b)(1)(2)(c).
See Ginn v Forrester, 282 S.W. 3d 513, 517 (2009) ("We conclude that the face of the record reveals that the trial court did not notify appellants of its intent to dismiss their case after retaining it on its docket."). Accordingly, Relator was never notified by the trial court when the review of facts hearing was to take place.
Moreover, on the financial worksheet document, Relator stated, "it was a conflict of interest for SCFO's to represent him." This hinges on the fact they are connected to the criminal justice system through the TDCJ, and the Texas Board of Criminal Justice, therefore Relator requested the committing court to appoint other counsel, but the Respondent refused to respond. Additionally, Relator was never admonished by the SCFO's of this conflict of interest prior to signing the agreement to represent him. (Exhibit # 18). Attorneys are held to a specific standard set forth in the TDRPC Rule 1.06, and 8.04(12).
On May 11, 2018, Relator filed a Motion Compelling the Committing Court to: Hear and rule on all previously filed motions (See Exhibit # 19). This motion specifically referenced all motions connected to his 2018 Biennial Review. It did not reflect the other motions, hereto: Motion to Remove Incorrect Information (See Exhibit # 2) and Petition to Have GPS Tracking Device Removed (See Exhibit # 6). Furthermore, on May 11, 2018, Relator filed a motion Denouncing SCFO's as his representatives. This motion served as a clear and unequivocal termination of their services. (See Exhibit # 20).
Consequently, Relator was never formally notified of the actual judicial review of facts hearing for the Biennial Review by the trial court, or SCFO's. Subsequently, Relator was ordered to two more years of indefinite commitment. (See Exhibit # 21). Ignorantly, on May 14, 2018, Relator continued filing pleadings supporting the fact his alleged behavioral abnormality had changed to the extent he will not engage in a predatory act of sexual violence, subject hereto:
See HSC § 841.102(c)(2) ("probable cause exists to believe that the person's behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual violence.").
1. Motion Objecting to State Psychologist's Evaluation Regarding Petitioner's 2018 Biennial Review: First Set of Objections (Exhibit # 22)Thereafter, on May 21, 2018, Relator filed the following motions:
2. Motion to Admit Supplemental Evidence in Support of Petitioner's 2018 Biennial Review (See Exhibit # 23)
3. Personal Affidavit in Reference to: Motion to Admit Supplemental Evidence in Support of Petitioner's 2018 Biennial Review (Exhibit # 24)
4. Petitioner's Summary of the Preceding Two-Years in Civil Commitment: April 2016-April 2018 Supplemental Evidence for the 2018 Biennial Review (See Exhibit #25)
1. Motion Objecting to the Texas Civil Commitment Office's Summary Regarding Petitioner's 2018 Biennial Review: First Set of Objections (See Exhibit #26)
2. Motion to Take Judicial Notice of All Exhibits Entered with Previous Filings in Conjunction Therewith: Petitioner's 2018 Biennial Review (See Exhibit #27)
Discouraged, Relator wrote a letter to SCFO's requesting, "why he was never notified of the pending May 9, 2018, hearing," their response was less than forthcoming. It basically stated he had no right to be notified, but did affirm he has a right to self-representation. (See Exhibit # 27).
See In re Schklair, 2017 Tex. App. LEXIS 5861 ("The State's failure to notify...relators' filings potentially violated duties the State owed to the [RELATOR] and basic tenets of professional conduct expected of Texas attorneys. See, e.g., Tex. Discpl. R. Prof. Conduct 1.03(a)(b) (a) lawyer shall keep a client reasonably informed about the status of a matter [SUCH AS PENDING COURT DATES] and explain a matter to the extent reasonably necessary to permit the client to make informed decisions [PRIOR TO A HEARING] regarding the representation); see also Tex. Discpl. R. Prof. Conduct 3.04(c)(5) (a lawyer shall not engage in conduct intended to disrupt the proceedings).
Consequently, in the aftermath, Relator filed the following post-judgment motions: 1.) Findings of Fact and Conclusions of Law, 2.) Motion to Set Aside, Vacate Judgment, 3.) Affidavit for Motion to Vacate, 4.) Notice of Appeal, 5.) Motion to Compel Hearing and Ruling on Said Motions, and 6.) Clerk's Record.
In conclusion, Relator wrote an informal correspondence to the Respondent at the 274th Judicial District Court inquiring why he continued to ignore Relator's constitutional right to self-representation, and completely disregard setting a hearing date and rule on his previously filed motions, but he did not respond. (See Exhibit 30).
SUMMARY OF THE ARGUMENT
Prior to filing this present writ of mandamus, Relator properly filed with the Respondent various motions in connection with his civil commitment. Beginning in October 2017, Relator requested the Respondent to hear and rule on these motions with no response. Relator continued having faith in the civil justice system, and that the Respondent would act accordingly by setting a hearing date to rule on all properly filed motions, but this ill-found faith was in vain.
In January 2018, Relator then filed a series of motions in connection with his 2018 Biennial Review. Respondent continued his refusal to acknowledge Relator the right to self-representation, and further refused setting a hearing to rule on all properly filed motions. Therefore, this arbitrary action left Relator with no other remedy but to file a writ of mandamus. The Respondent committed a clear abuse of discretion, and a violation of Relator's constitutional rights.
Relator notified the Respondent he desired to represent himself and filed motions that clearly and unequivocally terminated SCFO's as his appointed attorneys. The Respondent never recognized these attempts to remove them, and continued to ignore Relator's pleadings and motions, thus forcing Relator to file this writ of mandamus to compel the Respondent to act accordingly.
Relator wrote an informal letter to the Respondent inquiring why he has refused to: 1.) rule on all previously filed motions, 2.) recognize his constitutional right to self-representation, and 3.) the termination of SCFO's, but he refused to respond with an answer. (See Exhibit # 30).
ARGUMENT
ISSUE 1: Respondent has abused his discretion by failing to set a hearing date and rule on all motions properly filed by Relator I. STANDARD OF REVIEW:
"'Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal.'" In re Trevino, 2018 Tex. App. LEXIS 2565 (quoting In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016)). The "'relator bears the burden of proving both of these requirements.'" In re H.E.B. Grocery Co., 492 S.W.3d at 302; (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). Furthermore, "an abuse of discretion occurs when a trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence." In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016); Ford Motor Co. v. Garcia, 363 S.W.3d 573,578 (Tex. 2012). The determination of an adequate appellate review is made by balancing the benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). II. MANDAMUS STANDARD:
See In re Grecon, Inc., 2018 Tex. App. LEXIS 449 (Jan. 12, 2018) (orig. proceeding).
See In re Univar Usa, Inc., 311 S.W. 3d 175 (2010); see also State v Cullen, 195 S.W. 3d 696 (2006) ("The efficient administration of justice will be served by a requirement that trial judges respond to a reques[t].").
When a trial court judge refuses setting a hearing and rule on motions properly filed, the "guiding legal principles" permitting mandamus relief can be discovered in: In re R. B. Deblanc, III, 2018 Tex. App. LEXIS 3038 stating:
"To be entitled to mandamus relief, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the relator seeks to compel involves a ministerial act rather than a discretionary act. In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) (orig. proceeding). A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding).III. DISCUSSION
A relator must establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed or refused to rule on the motion within a reasonable time. Id. It is relator's burden to provide a sufficient record to establish that he is entitled to relief. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Relator has failed to do so. Relator has not provided this court with file-stamped copies of his motions. See Henry, 525 S.W.3d at 382. In the absence of file-stamped copies of relator's motions, relator has not established that the motions are actually pending in the trial court.
Even if relator had established that his motions are properly pending, he has not demonstrated that his motions were properly presented to the trial court. Filing a document with the district clerk does not impute the clerk's knowledge of the filing to the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.-EI Paso 2001, orig. proceeding). The trial court is not required to consider a motion that has not been called to its attention by proper means. See Henry, 525 S.W.3d at 382."
As distinguished by Deblanc, Relator has met the required burden by establishing a sufficient record entitling him to mandamus relief. Relator has provided all file stamp copies, has referenced them as exhibits, and are located in the mandamus appendix. Additionally, he motioned the Respondent to set a hearing on the motions, and to provide a ruling.
See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
See In re Greenwell, 160 S.W.3d 286, 288 (Tex. App.-Texarkana 2005, orig. proceeding).
Moreover, Relator has established the trial court (1) had a legal duty to rule on the motions; (2) was asked to rule on the motions; and (3) failed or refused to rule on the motions within a reasonable time (See Exhibits in Appendix). The Respondent's duty to rule on the properly filed motions is a ministerial act only, and does not involve a discretionary act. Furthermore, Relator does not have an adequate remedy by appeal. "No adequate remedy by appeal exists concerning a trial court's erroneous determination[n]." In re Allstate Vehicle & Property Insurance Co., 2018 Tex. App. LEXIS 3146 (May 3, 2018, orig. proceeding).
See In re Henry, 525 S.W.3d 381, 382 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding); see also In re Brown, 2017 Tex. App. LEXIS 3333; quoting In re Blakeney, 254 S.W.3d 659, 662 (Tex. App.-Texarkana 2008).
See In re Powell, 516 S.W.3d 488, 494-95 (Tex. Crim. App. 2017) (orig. proceeding).
Supra.; see also In re Newport Classic Homes, LP. LLC, 2018 Tex. App. LEXIS 3072 (San Antonio - May 2, 2018, orig. proc.) ("Six days after Lagunes filed his motion to compel, the trial court conducted a hearing on the motion.")
Additionally, Relator filed several motions to compel a hearing and a ruling, but Respondent never responded. "Accordingly, in considering whether mandamus relief is warranted, we need only review a trial court's ruling on a motion to compel...for an abuse of discretion." Supra.
Unquestionably, the respondent abused his discretion by failing to set a hearing date or provide a ruling on the properly filed motions. In re William Earle Coffey, Jr., 2018 Tex. App. LEXIS 2424. ("A trial court has a ministerial duty to consider and rule on motions properly filed and pending before it, and mandamus may issue to compel the trial court to act. In re Henry, 525 S.W.3d 381 (Tex. App.-Houston [14th Dist.] 2017, orig. proceeding); In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex. App.-Corpus Christi 2014, orig. proceeding")). Relator contends he cannot appeal the properly filed motions because Respondent failed to set a hearing, and provide a final ruling: thus, mandamus relief is the only remedy available. ISSUE 2: The 274th Judicial District Court is violating Relator's constitutional right to self-representation, and has failed to recognize Relator clearly and unequivocally terminated the services of SCFO's as his statutorily appointed counsel. I. STANDARD OF REVIEW
Citing Eli Lilly and Co. v. Marshall, 829 S.W.2d 157 (Tex. 1992) ("The court conditionally granted the petition because the trial court abused its discretion by refusing to conduct a hearing and render a decision on defendants' motion...."); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992) (orig. proceeding); In re Bishop, No. 14-06-00636-CV, 2006 Tex. App. LEXIS 7451, 2006 WL 2434200, at *1 (Tex. App.-Houston [14th Dist.] Aug. 24, 2006, orig. proceeding) (per curiam).
A trial court abuses its discretion when it fails to recognize a defendant's right to self-representation. "We review the denial of a defendant's request for self-representation for an abuse of discretion." Keigley v State 2018 Tex. App. LEXIS 2323; citing Faretta v. California, 422 U.S. 806, 835 (1975) ("The Supreme Court has emphasized that "[a]lthough a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation."). II. DISCUSSION
Relator contends, he motioned Respondent several times to recognize his right to Self-representation, but Respondent contends he is statutorily represented by SCFO's. "[T]he Court held that a defendant has a constitutional right to proceed without counsel when he voluntarily, knowingly, and intelligently chooses to do so, and the state may not constitutionally force a lawyer upon him." Lathem v. State, 514 S.W.3d 796, 802 (Tex. App.-Fort Worth 2017, no pet.) (Emphasis added) Lathem further elaborates:
See Bailey v. Cain, 2018 U.S. Dist. LEXIS 1983; citing State v. Nixon, 222 So. 3d 123, 133 (La. App. 2 Cir. 2017) ("[a]n indigent defendant has a right to counsel as well as the opposite right to represent himself....").
"The Court of Appeals of Texas rejects the argument that a defendant's exercise of the constitutional right of self-representation is nullified if a defendant communicates with court-appointed counsel erroneously forced upon her. Such a position would immunize from review an erroneous judicial denial of a request for self-representation in all cases in which a defendant cooperated with counsel whom she had previously sought to remove. It would also violate the dictates of Faretta by improperly elevating one constitutional provision (representation by counsel) over another constitutional provision (self-representation.)."
Nonetheless, Relator filed a motion requesting the committing court to appoint new counsel by formally terminating SCFO's statutory representation. Relator further contends a conflict of interest exists between him and the SCFO's. Therefore, he filed a motion clearly and unequivocally terminating their services. Moreover, he asserted his right to self-representation, but the Respondent continued to ignore Relator's filings.
See Broadway v State, 2018 Tex. App. LEXIS 2628 ("However, 'the right to self-representation does not attach until it has been clearly and [unequivocally] asserted.'" Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008) (quoting Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986) (citing Faretta v California, 422 U.S. 806,835 (1975)").
See In re Reed, 2018 Tex. App. LEXIS 2998 ("Armstrong has petitioned this court seeking a writ of mandamus ordering the trial court to allow him to withdraw as counsel for the Relators due to a conflict of interest'); see also Texas Disciplinary Rules of Professional Conduct § 1.06.
See United States v Trachanas, 605 Fed. Appx. 751, ("Trachanas terminated appointed counse[l]").
See De Rouville v State, 2018 Tex. App. Lexis 265 ("Appellant explained...he wished to represent himsel[f].").
Relator contends, he has a constitutional right to self-representation, and has properly notified the court of this intention. Additionally, he terminated and refused the services of the statutorily appointed attorney further compelling his right to self-representation. State and Federal law permits a person the right to self-representation if they possess the needed experience to proceed. The trial court must admonish the Pro Se litigant of the consequences to self-representation, moreover conduct an evaluation of their legal knowledge prior to any proceedings.
See Faretta v. California, 422 U.S. 806 (1975) ("Forcing an accused, against his will, to accept a state-appointed public defender deprives the accused of his constitutional right to conduct his own defense under circumstances") (Emphasis added); see also McKaskle v. Wiggins, 465 U.S. 168 (1984) (pro se defendant must be allowed to "control the organization and content of his defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and jury").
See Morris v State, 2018 Tex. App. LEXIS 1568, ("When Morris stated that he was firing his attorney, the trial court apparently took Morris' remarks as an attempt to invoke his Faretta, [supra] right to self-representation.").
See Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942) ("recognized that the Sixth Amendment right to the assistance of counsel implicitly embodies a 'correlative right to dispense with a lawyer's help.'")(Emphasis added); see also Cofer v State, 2017 Tex. App. LEXIS 8360 ("In order to represent himself...a criminal defendant must first validly waive his right to counsel. A waiver of counsel is valid if it was made competently, knowingly and intelligently, and voluntarily.").
See Untied States v Pennington, 2018 U.S. Dist. LEXIS 28066, ("On February 14, 2018, at his initial appearance, the defendant Bryan Pennington said that he wants to represent himself. The court advised Mr. Pennington generally of the dangers of self-representation and set the matter for a further hearing on February 23, 2018 to allow Mr. Pennington time to consider whether he wanted to represent himself").
CONCLUSION
Relator concludes, the Respondent abused his discretion by failing to rule on all properly filed motions. Furthermore, he has failed to recognize Relator's constitutional right to self-representation.
Relator has no remedy by appeal, therefore mandamus relief is the only remedy available. Additionally, the predicted future litigation of Relator's Biennial Review final judgment will be either:
1.) An appeal of the final judgment order, and/orThis is contingent upon the final outcome of the requested mandamus relief.
2.) Habeas Corpus Relief.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relator respectfully prays the Honorable Justices of the Fourth Court of Appeals grant this Writ of Mandamus. Furthermore, by compelling the trial court to set a hearing and rule on all motions previously filed, and additionally recognizing Relator's constitutional right to self-representation. Respectfully Submitted, /s/_________
Stephen Patrick Black #04155143
Pro Se Litigant
Texas Civil Commitment Center
2600 South Sunset Avenue
Littlefield, Texas 79339
CERTIFICATE OF SERVICE
On the executed date below this document was served via U.S. Mail, on Respondent:
Honorable Judge Gary Steele
274th Judicial District Court
211 West Court Street
Seguin, Texas 78155 Executed on the 25th day of September 2018.
CERTIFICATE OF COMPLIANCER
Relator certifies this brief was computer generated using Microsoft Word, and that this brief, excluding those portions enumerated in the Texas Rules of Appellate Procedure (TRAP), Rule 9.4(i)(1) contains approximately 4,577 words, pursuant to TRAP, Rule 9.4(i)(2)(B) compliance regulation.
UNSWORN DECLARATION
I Stephen Patrick Black do swear under penalty of perjury the foregoing instrument is true and correct to the best of my knowledge, and any additional statements are based upon information and belief. Executed on the 25th day of September 2018. /s/_________
Stephen Patrick Black #04155143
Texas Civil Commitment Center
2600 South Sunset Avenue
Littlefield, Texas 79339
APPENDIX TO THE EXHIBITS
Exhibit # 1 Docketing Sheet for Cause No: CV-15-1805 Exhibit # 2 Motion Requesting Committing Court to Order Forensic Psychologist to Remove Incorrect Information from Final Evaluation/with Appendix to the Exhibits. Including: A Letter to the Clerk and a Decla ration/Affidavit Exhibit # 3 Motion to Compel Ruling On: Motion Requesting Committing Court to Order Forensic Psychologist to Remove Incorrect Information from Final Evaluation Exhibit # 4 Motion for Notice to Set Hearing On: Motion Requesting Committing Court to Order Forensic Psychologist to Remove Incorrect Information from Final Evaluation. Including: Motion to File Additional Exhibit Exhibit # 5 Letter from SCFO's Responding to Request to Correct Inaccurate Info Exhibit # 6 Petition for Removal of GPS Tracking Device Exhibit # 7 Motion for Notice to Set Hearing On: Petition for Removal of GPS Tracking Device Exhibit # 8 Challenge to Constitutionality of State Statute/GPS Tracking Device Exhibit # 9 Letter from SCFO's Denying Services of an Expert Witness Exhibit # 10 Motion to Appoint Expert Witness for Biennial Review Including Motion to Appoint Counsel Exhibit # 11 Motion for Notice to Set Hearing On: Motion to Appoint Expert Witness for Biennial Review Including Motion to Appoint Counsel Exhibit # 12 Letter from SCFO's Denying to be Present During Psych Evaluation Exhibit # 13 Motion to Appoint Expert Witness for Biennial Review Dated Feb. 21, 2018 Exhibit # 14 Motion to Stay Biennial Review Proceedings Pending Appointment of an Expert Witness Exhibit # 15 Motion for Notice to Set Hearing On: Motion to Stay Biennial Review Proceedings Pending Appointment of an Expert Witness Exhibit # 16 Affidavit Attesting to All Previously Filed Motions Exhibit # 17 Declaration of Financial Inability to Hire Counsel with Financial Worksheet Exhibit # 18 Original Contract of SCFO's as Representatives Exhibit # 20 Petitioner's Motion Denouncing Present Counsel and Request to Be Present for His 2018 Biennial Review Exhibit # 20 Motion to Compel the Committing Court to: Hear and Rule on Previously Filed Motions in Conjunction with Biennial Review Exhibit # 21 Copy of Biennial Review Order of Final Judgment Exhibit # 22 Motion Objecting to State Psychologist's Evaluation Regarding Petitioner's 2018 Biennial Review: First Set of Objections Exhibit # 23 Motion to Admit Supplemental Evidence in Support of Petitioner's 2018 Biennial Review with Exhibit List Exhibit # 24 Personal Affidavit in Reference to: Motion to Admit Supplemental Evidence in Support of Petitioner's 2018 Biennial Review Exhibit #25 Petitioner's Summary of the Preceding Two-years in Civil Commitment: April 2016-April 2018 Exhibit # 26 Motion Objecting to TCCO's Case Manger's Summary Regarding Petitioner's 2018 Biennial Review Exhibit # 27 Motion to Take Judicial Notice of All Exhibits Entered with Previous Filings in Conjunction Therewith: Petitioner's 2018 Biennial Review Exhibit # 28 Letter Written to SCFO's Requesting Why Relator was Never Notified of the Pending May 9, 2018 Biennial Review of Facts Hearing? Including Response by SCFO's. Exhibit # 29 Additional Motions Filed After Biennial Review Final Order:
a.) Motion for Finding of Facts and Conclusions of LawExhibit # 30 Correspondence sent to Respondent Dated July 9, 2018
b.) Motion to Set Aside/Vacate or Reconsider
c.) Affidavit in Support of Motion to Vacate
d.) Notice of Appeal
e.) Motion to Compel Hearing and Ruling on Appeal/Other Motions
f.) Designation of Clerk's Record for Appeal
Image materials not available for display.