Roy L. Smithwick, Jr.
TDCJ#622814 McConnell
3001 s. Emily Dr.
Beeville, Tx. 78102

Clerk of the
eourt: of~~:er. imina 1-- Appeals                                      RECEIVED IN
P.O. Box 12308                                                 "'"'' !eT   0~ CR.I!IJIINAL APPEALS
Austin, Tx. 78711-2308

RE: Filing
                                                                           SEP 29 2U15

Clerk,                                                               ~bel Acosta, C!euk
      Enclosed please find a copy of a Petition for Mandamus

filed to Compel you to Perform Ministerial Duties based;upon

a Developed Record.

      Since you have not answered my question in regards to why

I am not allowed Due-Process of law to have NEW LEGAL BASIS

considerd    6n~A1Application       for Relief I am left with no other

recourse to to seek       my   Due-Process of Law rights to consideration.

      I was wrongfully convicted with false and Fabricated

Scientific Testimony which mets the bare minimum requirements for

a Fair Trial Under Art. 11.073
  NO: ______________________




In THE SUPREME COURT   0~   TEXAS




tn Re ROY LOUIS SMITHWICK, JR.




PETITION FOR WRIT OF MANDAMUS




                            Roy L. Smithwick, Jr.
                            Pro-se
                            TOCJ~7622814
                            3001   s.   Emily Dr.
                            Beeville, Tx. 78102
                                      IDENTITY OF PARTIES
      -":!"""':"'                ..   .        .   .     ...~· ...... ·~::
"tfEL"'i\ToR, -Is--a-    pers-on confined tn'the Texas Department of Criminal
                    Justice and may be contacted as asdressed betow.

Roy L. Smithwick, Jr.
TOCJ~622814 McConnell
3001 s. Emily or.
Beeville, Tx. 78102


Respondent,   Is            ·a   Clark     for the Court of Criminal Appeals and
          may be            cont~cted     at the address below.

Clerlt of' the ·
Court of Cri.mlnal ~ppeals
P.o. Box 12308, Capitol Station
Beeville, Texas 78711



                                      T~SLE   OF CONTENTS
            ~-

·tdentity of Parties --------------------------------------11.

Table of Contents--                                                          --11.

Index of            ~uthorities--------------------------------------111.

Statement of the Case--                                                      --111>V.

Statement of Jur\sdictton---------------------------------v;

Issues Presented--                                                           --v1.

Statement of Facts----------------------------------------V1>1.

~rguement--                                                                  --1>3.

Prayer--------------------~------------------~------------5.

Declaration--                                                                --s.




                                                   II.
                                          tNOEX OF AUTHORITIES
     .. ·,
.-      ~·

l· Crlm. Codes and Proc. Art. § 11.07 Sec.                           4a{ll&(2l~----III>5

2. Tex.              Gov~    Code § 22                                                --v.
3.           Hainesv:a~6Q~~~4?4 u.s. 319,320 (1972)---------------v.
4. Wade              v. Mays       689 S.W.2d 893, 897 (1985 Tex.Cr.App.)---v.

5. Ex           Part(,~Neal         Hampton Robbins ct,cr.J.\pp.      No.73,484-~2-VI&l.

6. 83rd. Legislature,                    a.a.    1847,    s.a.   825, &   s.a.   16lt------vrr&2.

7. Will              v.    United States 389       u.s.    90, 96 (1967)----------4.

8. Meissner V. Fuch~, 290 S.W.2d 941, '94~ (Te~~Civ.App.     .
          Galveston 1956)--                     · -      ~-4:

9.           Worth~m       V. Walker {133 Tex. 255] 128 S.W.2d@ 1151 (1939)3.
                                                                      --5.


                                         STATEMENT OF THE CASE

               The        Clerk     of   the    Court of Criminal Appeals has set aside

the            tegal        Statues      of Article § 11.07 Sec. 4a(ll&(2) "NEW tEGAt

B~SIS"               and     "CONSTITUTIONAL        VIOLATIONS"      by     a State Prosecutor

and refused to-- Fit.E ANO SET :::;:,a Application for relief under

Article 11.073, a new statue previously unavailable for considera-

tion in a Prior Application.

               The Clerk of the Court of Criminal Appeals has the Minister-

lal             Duty        to     Obey the Courts Orders within the Satatues of Law

to            provide        Relator his Constitutional Due-Process of Law Rights

to            have        issues     Addressed     Under     the   New tegat Basis       granted

by the Texas Legislature and demanded by the Pubttc.



                                                     III..
           Texas Criminal Codes and Procedures                            ~rt.    § 11.07 Sac.      4a(t)~2)

allow3        for    .a     successive              filing        if     a "NEW    ~EG~t     BASIS" or a

"CONST!TUTION~L VIOL~TION"                         Occurred establLsh\ng that no rational

Juror could have found Relator guilty beyond a Reasonable Doubt.

       ·Legislation              has        enacted        ~rticle        § 11.073 which the Court

of · Criminal             Appeals           has     established           ls     a "NEW LEGAL BASIS"-

previously unavailable for consideration in a Prior Application.

           Relator is citing for the first time that the Trial Prosecutor

Kno~ln~t~          and     Iritentionally                violated . his Constltut\onal Rights

to     a     Pair        Trial     by·      bavlng Pre-Trial knowledge that the State

Offerred           Scientific          _Testimony          .was going to          ~e   ~atsifled.    With

out        such     fabricated              Scientific Evidence Relator would not have

been        found        Guilty        beyond a Reasonable Doubt and Maintained his

innocence.

           Relator        has     satisfied . the                requir~ments          for a Successive

Application              Under Art. U.07 Sec. 4a(l)&(2) due to the "NEW LEGAL

BASIS" (ART. llt07Y) being previously unavailable for consideration

in a prior Application                             and           tna State Prosecutor knowingly

~ABRICATED          scientific evidence violating Relator's ncONSTITUT!ONAU'

DUE PROCESS              RIGHTS        TO     A     FAIR        TRI~L"     which       i~a   nMiscarrlage

of Justice".              NOTE:        Relator           had no reason to suspect Fraudulent

acts were committed by the Trial                            Prosecuto~         but upon being suspect

Relator           Excerslced           DUE        OILEGENCE        to     investigate the issue by

requesting the Scientific Records and was dented                                        the information.

           Wherefore        the        Clerk        of     the Crlminat Court of Appeals has

a     Constitutional              Due-Process              of     Law    Duty to FILE AND SET FOR
                                                           IV.
. -~"-'·---·~




                REVIEW Relators                                                         ~ppli.cation                               for                 Habeas                              Corpus                               Relief                       or       at
                the Minimum recomend that a Record be d_eveloped to base a .de.cisi()n.
                '     ,.


                                                                                                 S'l'i\TEM'f!:NT 0&" 3URISDIC'l'tON
                                      The Supreme                                        Court                  of Texas has Jurisdiction to Hear Issues
                of              Constitutional                                                   Civil            Due-Process                                                    of               taw Rights granted by
                the Texas                             tegi.slatio~                                 tnat requires the Performance Of Ministerial
                Duties                           of             a              St.ata·· · Official                                         Clerk,                                Under Tex. Gov. Code i 22 •
                                                                               . ·.                                . '.
                                  Relator. has                                             presented. this·.i.ssue to .. the Court of Criminal
                '·.        .·- .. _   ~   ;· •        ;;.; ·'             •.   ·. ·.-   ~· ~~-     ·-.     .l      .. -e                   ·.   _'-l   .~   •• • ••   ~.·:   •   :   ';~   ·-:;    •• •   :   "-:::_:..-:           ~;~1 ~.~ ... '1-
                                                                                                                                                                                                                            - " : ...                    .:-0 . . - --· ,.--   ~-   '
                Appeals- · .f'or                                          review                   and            the                  issue                          went ··unaddressed.                                                              The~~for:·e                  '

                                                                                                     .-
                Relator i.s                                     aware                      ~f       no            other                         adequat& means .to compel Clear
                Constitutional                                                 Due-Process                             of taw Ministerial Duties performed
                                          ~



                by             the               Clerk                         of the Court .of Criminal                                                                             ~ppeats                       to                   ~ItE           ~ND      SET
                FOR REVIEW a                                              ~ppticatton                             for                  Habeas                                    Corpus                       Relief Under New
                Le:ga.i"~                     Basis                 previ.ou~ly                           Unavailable for                                                        c;ons·ldi;?'ra·tion~:Jn a                                               -:.Ptl.or·
                Application for Relief.
                                  Relator                                 is             procee~ing                        Pro-Se                                     in              this cause and asks the
                Suprema                          Court                         of Texas to hold him to a less Stringent standard
                then                      formal                         P.lead_tngs                            made               by                  an 1\tt.o,rney. (See -- Haines v.
                Hernar, 404                                     u.s.                  319, 326 [1972])
                                      "In             determining. the                                             specific                                           nature of the Extraordinary
                relief                           ought, this court witt not be limited by the denomlnat\on
                                                  '                 •                                                  I   '       •




                of             Petitioner's                                              pleadings,                        but will                                          ~ook                 to the essence of the
                pleading,                                  including                               the            prayers,· as
                                                                                                                            ' .
                                                                                                                                well as the record
                                                                                                                                            .      before
                                                                •       !"'                              ' .

                Us ...                        (See- \iade v. Ha/s·, 689 S.W.2d 893, 897 [1985 Tex.Cr.App.))                                                                                                                                             1\




                                                                                                                                           v.
                                                                                                                               '   ~   .
                                                                                       '        . . '.
                                                                                           ,, :- .       ~   ~




;··.




                                             ;.~                  ..~ .
                                                                                                                                                                                                                                                        .       .' i
                                                                                                                                                                                                                                                            ,   .....,
                                                                                                                                     IS.SUES            .PRESENTED

                                                                          The· Clatk                                     of    th•'dou~t o~ drtmlnal ~ppeals has ~bused hl~
                                      Discr~tion                                                             ~~d MlQlstetlal Duty by refusin~ t~l4tors Du~~Ptoce~s
                                                                                                                                                                                                                                                       ·-
                                                                                                     Appl icaliion                   of Laif ·r:equi.r:eing l{lin · ur 'Flf~. ~No =~F2.!                                                   ·_Fq_g_ ·
                                      HEVrnEW.
                                          '
                                               a
                                      .,.,;11/'fo-.                            ~
                                                                                                 ~udces~tve                     Appltcatlon                        for Habeas dorpus Relief whW~h
                                                                           .~··    w




                                      has "~mel/the Requi.rements ~at out in Criminai Codes and Pro.cedures
                                                                          ~·.

                                      ~rtlcle                                          § 11.07 Sec. 4a(l)&(2).



                                                                                                                                 -~~EMENT.OF.                       FACTS
              ·~   ......    ., ,. _1:,.,                                 On                3/18/2015. Relator                                      was           cited        for                    Abuse of Writ.
       .. .····             .......
                            '~;~nstruc~ions                                                                       to the Clerk were not to accept another Application
                                                  •..         ,.                                                                                                      .                                                            .

                             · for                                        Habeas                                 Cor: pus      Relief·              unless           Relator "·•· is able 'to show
                                                                           ''                                                                                                                                             '   '   ..
                                       in  •t         ~   : • ' .....
                                                                        such                     an               application that any claims presented have.not been

                                      rasied                                           pr:eviously                            and     that              they could not have .been presented
                                                               . t·.                                                                                                               )   '   'I         I       ~    : 1


                                       in a                               p~•vious                                application for a Writ of Habeas Corpus."

                                      2.                                  On           Sap·. 1, 2013 Legislation enacted an Amendment to Criminal
                                                                                                                                                                                                                                                                     ·.\'



                                      Codes                                    and . Procedures                                      to . add.                   Artlcle 11.073 that pertained to
                                                                                                                                                                                                                                                                         ,,
                                      certain                                          ~scientif1e                            Evidence".                                                                                                                                 j

                                                                                                                                                                                                                                               ·'
                                      3.                                  On                Nov~                   26, · 2014 the Court of Cci~lnal Appeals found that
                                                                                                                                        '   I   '   ;   \   :,



                                      Article                                               11.073                      satisfi~d      ihe requirement for a Successive review
                                                                                                                                                                               \                ~~~           ..                       \



                                       for                                relief                                 under:       Art~     11.07 Sec. 4a(l):                                   -A                 "NEW LEGAL BASIS"

                                      previously                                                             unavailable for consideration in a pri~r A~plicati~~.
                                                                                                                    '                                                     .                               '
                                       (See Ex Parte Neal Hampton Robbins, Wr-73,484-02)

                                      4. ·                                Article·                                11.073        i~ a· NEW LEGAL BASIS previously una~ailable·

 ~~,                                   to relator for consideration in a prior a~plication~and t~e~efore

                                      a                           STATUTORY                                       ENTITLEMENT               EXISTS. for                       conside~ation                              under.~h~

                                       requirements set out bt L~glslation to·provide fo~ PAIR TRiALS.
                                                                                                                                                            VI.
s.      Before           Excerciaing Relators Newly Granted Due-Process Right
to     review        under        the     New        Legal     Basis he DILIGENTLY SOUGHT to

find     whether           the     State        Prosecutor knew the Expert "Scientific
Evidence"           testimont           offerred        at trial was false and unreliable

by requesting the Scientific Documents/Reports used for Pre-Trial
Preparation.
6.      Texas        83rd        Legislative           House     Bill 1847, Senate Bill 825,

and     Senate           Bill     1611         enactment all revolve around the Trans-
parency        of        the     Prosecutors· Office              to Disclose information to
                                                                           :     '          '       '


met     the     Publics           demand        to     prevent     wrongful! convictions and
provide a Constitutional Due-Process Right to a FAIR TRIALo
1.      Despite           the     Publics Demands the Webb Co. District Attorney

refuse9        to        release        scientific           Documents/Reports       used       by the
Trial        Prosecutor           to     prepare        for Trial.      (Relator Presents Due
Diligence           to     provide        positive Proof of his claims but is being
Obstructed to his legal right to access the proof for the claims.)
s.      Relator           Applied        for     Habeas Corpus Relief on ot about Jan.

7, 2015 citing the "NEW LEGAL BASIS" of Art. 11.073 and a Miscar-

riage of Justice.
~·.     The     Trial           Court     did not act as a fact finder applying the
"NEW     LEGAL           BASIS"        standard        of     review   to develop the records

for     the     Court           of Criminal Appeals Clerk or Court to review and

make     a     informed decision on the Scientific Trial Testimony that

has     shown        to        ba intentionally falsified and relied upon bf the

State Prosecutor to Obtain a conviction.
                                                        VII.
10.     On     Mar. 3, 2015 The Clerk of the Court of Criminal Appeals,
without         a     developed                  record to base an informed decision, found

that      Relator               did        not       met      the        Standard for review set out in

the      Appeals           Court Order and ignored th·e legal 'St-at~'_t~~ of Article                                     0
11.07 Sec. 4a(l)&(2).
11.      The NEW LEGAL statute'of Article 11.073 meta the Requirements
set      out        in Article 11.07 Sec. 4a.and the Courts Order.                                             Relator
is      ENTITf-4ED BY stat_ut:e to Due-Process of Law requiring the Clerks.                                               0
Ministerial               Duty            to     File        and        Set        the    Ap~lication     for Review
for an infotmed                      decision based on a Oeveloped Record.


 ; '·                                                      ARGUEMBNT

        On      3/18/2015                  The       Clerk         of     the Court of Criminal Appeals
                           \.


found        Relator             did           not     met     the        standard for review under the
Order made by the Court of Crim. App.                                         t0..rf:,   the presented Application
Under Article 11.073, see ccAe29,892-2l.

         The        Ct.         of        Crim.        App.        set        out in a previous Order that

the      Clerk        of         the           court       was not to accept another Application

from Relator unless:
                    Relator u • • • is able to show in such an application
                    that any claims presented hove not been raised pr~viously
                    and that they could not have been presented in a previous
                    application for a Writ of Habeas Corpus."


         The        Court            of        Crim.       App. has established in Ex Parte Neal

a.      Robbins,           Wr-73-848-02, that "Article 11.073" is a                                       0
                                                                                                              NEW LEGAL

BASIS 0        previously                  unavailable              for         consideration        in       a prior

application Under Article 11.07 Sec •. 4a.
                                                                   1.
        Relator           is        citing        article      11.073     as a "NEW LEGAL BASIS"
for     relief as the Article was previously unavailable for consid-
ation     in     a        prior        application             for celief.     The 11.073 Statuit.e·
established           a        new     standard of review that was to ensure a Fair

Trial     was        provided to an Applicant in instances                        w~ere         the State
relied upon scientific testimony that has been discredited.
        Relator           has        therefore        met       the standards for relief under
the     legal .Statue of Article ll.07.Sec. ·4a(l) to have the issues
                                                                                        ....
addressed,           but ·the · 'l'rial              Court failed to         develop~>~        the record
to make an informed decision. ~~i
        Also, Relator is citing for the FIRST TIME that a "Miscarriage

of     Justice"           occurred           by     tne     Trial Prosecutor's knowingly and
intentionally              offerred false and unreliable Scientific                             ~estimony

which     denied           Relator's              Constitutional          Due-Process          Right to a
FAIR     TRIAL        by        a     State       Official.         Absent this Constitutional
Due-Process           violation NO RATIONAL JUROR WOULD HAVE FOUND RELATOR
GUILTY BEOND A REASONABLE DOUBT.

        Relator           has        therefore        met       the Standards for relief under
the     legal        Statutte of             Article 11.07 Sec .. 4a( 2) to have the issue
addressed,           but        the     Trial        Court       failed     to develop the record
to make an informed decision.



                      DISTRICT ATTORNEY WITHHOLDING EVIDENCE
        Relator           has attempted to address the Miscarriage of Justice

claim     by     requesting              the        scientific       documents/reports used to

prepare for and introduced at - Trial by th Prosecutor.
                                                          2.
        Relator           is    legally           entitled        to     the information that was
testified           to     at     trial          and     through New Laws passed to prevent
a     wrongful!           conviction             the     Public now demands Transparency of

the     District           Attorneys Office to stop withholding evidence that
nas resulted in wrongful! c.onvrtf6·ri.S> of innocent Citizens.
        The     District             Attorney's           withholdi~g           of Documents/Reports
raises        the        presumption             of correctness of Relators claims.                  The
Prosecutors              office       does        not negate the. claims by providing the
Scientific           Documents/Reports                   used by the Trial Prosecutor which
R~lator        is        Legally       entitled           to     due to the apparent matterial
value to the claims made.
        Relator has SHOWN A DUE DILIGENCE to investigate and ?roperly
present . the             claim       of     a     "Miscarriage              of Justice" as required

under     Article 11.07 Sec. 4a, but the Webb co. District Attorneys
continues           to     withhold          Scientific           inform~tion         and     refuses to
abide     by    the Basic Priciples of the                        u.s.       Constitution to provide
for     Due-Process             of     Law.            Further     the       Trial Court failed to
DEVELOP        the        Records          to address the issue for the higher Courts
to MAKE AN INFORMED DECISION.

        These        Actions          of     State       Officia!s            undermine      the Publics
Trust     in        the Governments ability to provide FAIR TRIALS to it's

Citizenrt•
        Such        Constitutional                Violations           can     not   be     set aside as

merely part of Justice and go unaddi:"~$ses.~, ,, Justice is to ;serrve-~:~····
as a Truth Finding Function on behalf of. the Citizenry.

                                                          3.
                                                    CONCLUSION
       Relat6r has             shown           a     "New          Legislative granted due process
right"      of     Art.        11.073 established a "NEW LEGAL BASIS" standard
of    Review· which                previously                was     unavailable to Relator•       This
satisfies the requirements                         f~~~,;a    successive Application and presents
a Ministerial Duty upon the Clerk of the Court of Criminal appeals
     -
to file and set the issues for review basad upon a·daveloped
and infqrmed           recor~.

       ~   FIRST TIME CLAIM of a State Prosecutor violating Relator's
Constitutional               Due        Process Right to a Pair Trial has never been
addressed         on     the        merits.           This claim will show that absent the
Constitutional               violation to a FAIR TRIAL NO .RATIONAL JUROR WOULD
HAVE FOUND RELATOR GUILTY BEYOND A REASONABLE DOUBT:                                       Thus Relator

has   satisfied              the        ~equirements                for· a     successive Application
and· Presents            a     Ministerial                   Duty ·upon ·the Clerk of the Courtf.',.Qg

Criminal         Appeals           to     file        and          set the issues for review based
upon a developed and informed record.
       Relator         has         Diligently                sought     to investigate and provide

the   Scientific              Information               used ::·by       the    !rial Prosecutor but

has been         denied access to the information even though disclosure

basic priciples of taw and further demanded by the Public through
New Sb:t.t~te: to provide Pair Trial to the Citizens.

      The        entitlement              to       Mandamus          re~i~w    is "Indisputable" Will

v.    United      States, 389             u.s.        90, 96 (1967) and "Abundantly Clear"

Mei~snar.        v. Fuchs, 290 s.w.2d 941, 944 (Tex.Civ.App. - Galveston

1965).      Relator          has        presented. an "Issue to                 cequic~   the execution
                                                              4.
of     matters     whose merit is beyond dispute •• n (Wartham v.                        Walk~r,

{133 Tex. 255], 128 s.w.2a at 1151 (1939]).


                                              PRAYER
        Wherefore        Relator       Prays        that     the     Cle~k   : 6f the ~6urt 6f
Criminal       Appeals . be          instructed           tb FILE ANb SET PbR       REV~EW      the
Application        for     Rabeas Corpus Relief recieved on 3/6/2615 Court
of     Crimihal     Appeals          Cause     No.        29,892-21,~        Also find that       a
informed       decision        c~n    ·not     b~        made without a dev~lb~ed·re~o~~
from     the     Trial·Court ~ddr•ssirig:                  1) The Disdredite~ ~cientifid
Testimony        Under     the 'New          legal        Basis     of Article 11.073 which
was     created     to     provid~       for FAIR TRIALS on acc~rate Scientific
Testimony.        and.    21    The     Trial        Prosectitors       Pre~Trial    Knowledge
of the inaccurate Scientific Evidence:                            B6tti which affect Consti-
tutional Civil Rights·to a FAIR TRIAL by a Stat•                             Official~



                                                                   Respectfully


                                                         ~Smithwick,
                                                                   TOCJ#622814 McCtinnell
                                                                                          Jr.

                                                                   3001 s. Emily Dr.
                                                                   Beeville, Tx.~~~OCl

                           DECLARATION
     I, Roy L. Smithwick, Jr. do Here-By declare under the
penality of perjury that every state~ent in the ~oregoing Qocumerit
are True and Correct.      Also that every conclusion made from
from the information av~ilab1e to ~e is also tr~e ·and Correct
to the beat of my knowledge.



                                                    s.
                                     AFFIDAVIT OP INDEGENCE
      Y,        Roy     L.     Smithwick     Jr.,    Do   Here-By Declare under the
Penality         of     Perjury       that   in     the Trial Cause of the   ~oregoing

issue      in     the        49th    District     Court   No. 1992CRA00041-Dl and on
all     appeals         I     have    b•en found indegent and allow•d to      pro~~ed

without cost:.$. !:'          I am -~·p~;e:".iantally incarcerated and do not ·obt~in"

wages-for my labor for which I am                   consider~   a Ward of the State of
Texas.      I therefore. ask to. be al.lowed to proceed without costs in
                                         /

the foregoing issue to 6ompel Performance of Ministerial Duties of
a State Official.


                                                            Reap   ctfu1ll1S~-

                                                              ~~"~/. . . ~/l~'
                                                           Ro    • Smithwick Jr.
                                                           TDCJ#622814 McConnell
                                                           3001 s. Emily Dr.
                                                           Beeville Tx. 78102
