                                                                           WR-82,807-01
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                           Transmitted 2/2/2015 4:35:02 PM
                                                             Accepted 2/3/2015 3:44:40 PM
                                                                              ABEL ACOSTA
                                                                                      CLERK

                            N0. ______________                  RECEIVED
                                                         COURT OF CRIMINAL APPEALS
                                                                2/3/2015
                           IN THE                          ABEL ACOSTA, CLERK
              TEXAS COURT OF CRIMINAL APPEALS


            IN RE JUSTIN TODD VALDEZ, PETITIONER


       FROM CALDWELL COUNTY COURT AT LAW
             CRIMINAL ACTION NO. 41070
    HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING


              MOTION FOR LEAVE TO FILE
     ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS

To the Honorable Court of Criminal Appeals:

      Now comes JUSTIN TODD VALDEZ, Petitioner, and pursuant to

Rule 72.1, Texas Rules of Appellate Procedure, requests leave of this

Honorable Court to file an Original Petition for Writ of Habeas Corpus and

in support of same would show the following:

   1. Petitioner was charged by information with the Class A Misdemeanor

      offense of assault.

   2. On October 8, 2011, Petitioner appeared pro se and pled nolo

      contendere to the charged offense and was placed on community

      supervision.




                                                                Page 1 of 5
   3. On October 28, 2011, Petitioner appeared with retained counsel and

       the trial judge conducted a hearing on Petitioner’s motion for new

       trial.

   4. On December 9, 2011, the trial judge denied the motion for new trial.

   5. Petitioner gave timely notice of appeal.

   6. On August 29, 2014, the Third Court of Appeals affirmed the trial

       court’s judgment. Valdez v. State, No. 03-12-00098-CR, 2014 WL

       4362949 (Tex. App.—Austin Aug. 29, 2014) (mem. op., not

       designated for publication).

   7. The Court of Criminal Appeals granted Petitioner until December 11,

       2014, to file a petition for discretionary review (PDR).

   8. Counsel for Petitioner miscalendared the date the PDR was due,

       erroneously believing it was due on or before January 24, 2015.1

   9. When the actual due date passed, the Third Court of Appeals notified

       counsel for Petitioner of the issuance of its mandate of affirmance.

   10. Due to counsel’s error, Petitioner has been denied his opportunity to

       file a PDR in this case.




1	On	November	24,	2014,	Petitioner	requested	60	days	to	file	the	PDR.	


                                                                         Page 2 of 5
   11. Counsel has spoken to the Honorable Fred Weber, the Caldwell

      County District Attorney. Weber agrees that Petitioner is entitled to

      the opportunity to file a PDR.

   12. Errors related to misdemeanors are normally corrected via Articles

      11.072 or 11.08 of the Texas Code of Criminal Procedure. Ex parte

      Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).

   13. However, those remedies are not available because a misdemeanor

      trial judge does not have the authority to order the Court of Criminal

      Appeals to permit the filing of an out-of-time PDR.

   14. Consequently, the only remedy available is an Original Writ of

      Habeas Corpus.

   15. Petitioner prays that this Honorable Court will grant days leave to file

      an Original Petition for Writ of Habeas Corpus, and allow Petitioner

      ten (10) in which to file same.

Respectfully submitted,



_________________________________
CHARLES F. BAIRD
TBA # 00000045
BAIRD FARRELLY, PLLC
2312 Western Trails Blvd, Suite 102-A
Austin, TX 78745-1677
Tel: 512.804-5911
Fax: 512.804-5919

                                                                     Page 3 of 5
Email: jcfbaird@gmail.com

                       CERTIFICATE OF SERVICE

      A true and correct copy of the foregoing MOTION FOR LEAVE
TO FILE ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS
was served electronically on Fred Weber, Caldwell County District
Attorney, on 2/2/15.




______________________________
Charles F. Baird




                                                        Page 4 of 5
                            No. ______________

                           IN THE
              TEXAS COURT OF CRIMINAL APPEALS


            IN RE JUSTIN TODD VALDEZ, PETITIONER


       FROM CALDWELL COUNTY COURT AT LAW
             CRIMINAL ACTION NO. 41070
    HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING



           ORDER ON MOTION FOR LEAVE TO FILE
      ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS

      On this the ______day of February, 2015, the Court considered

Petitioner’s Motion for Leave to File Original Petition for Writ of Habeas

Corpus. It appears to the Court that said motion should be granted.

      Accordingly, it is ordered that Petitioner's Motion for Leave to File

Original Petition for Writ of Habeas Corpus is granted and Petitioner is

given leave to file an Original Petition for Writ Habeas Corpus and same

shall be filed within ten (10) days from the granting of this Motion.



                                       ______________________________
                                       Judge Presiding




                                                                        Page 5 of 5
