                                 CAUSE NO. 1087158sB



                     IN   THE    COURT   OF    CRIMINAL   APPEALS

                                  AT AUSTIN, TEXAS



ETHAN WAYNE HORTON
REALTOR

v.
KRISTIN M. GULNEY
RESPONDENT



                           THE     179th. DISTRICT COURT

                                          OF

                                BARRIS COUNTY I TEXAS




           P E T I T I 0 N F 0 R         WR I T     0 F    MA N D A MU S




            RECEIVED IN
       COURT OF CRIMINAL APPEALS
                                                          RESPECTFULLY SUBMITTED
             FEB 27 2015                                  ETHAN WAYNE HORTON
                                                          TDCJ ID#: 1459524
                                                          H. H. COFFIELD UNIT
                                                          2661 f.m. 2054
                                                          TENNESSEE COLONY, TEXAS
                                                          75884
                                                    CAUSE NO. 1087158sB

                                           IN THE COURT OF CRIMINAL APPEALS

                                                         AT AUSTIN, TEXAS



                                             ETHAN WAYNE HORTON, REALTOR

                                                                   v.
                                                  JUDGE KRISTIN M. GULNEY



                                            PETITION FOR WRIT OF MANDAMUS



TO THE HONORABLE                JUDGE OF THE COURT OF CRIMINAL APPEALS:



        NOW COMES, ETHAN                WAYNE        HORTON,        REALTOR,      PRO SE AND FILE THIS PETITION

FOR     WRIT      OF      MANDAMUS           ORDERING        THE        179th DISTRICT COURT OF HARRIS COUNTY,
                                                                                                              .L
TEXAS TO          ANSWER           RELATORS         STATE WRIT OF HABEAS CORPUS AS REQUIRED BY              ~aE


11.07       OF     THE        TEXAS        CODE     OF     CRIMINAL PROCEDURE, AND ARTICLE 1, SECTION 12

OF    THE        TEXAS CONSTITUTION, iAND THE                      FIRST AMENDMENT UNDER THE      ~UNITED   STATES

CONSTITUTION             IN        SUPPORT        THEREOF, RELATOR WILL SHOW THIS HONORABLE COURT THE

FOLLOWING:



                                                                   I

                                                           JURISDICTION

ON    SEPTEMBER           19,        2007     RELATOR        PLEAD GUILTY TO AGGRAVATED ROBBERY IN CAUSE

NO.     1087158                AND     WAS
                                         SENTENCED TO TWENTY(20) YEARS CONFINEMENT IN .. TEXAS
                                                                            \
DEPARTMENT          OF        CRIMINAL JUSTICEsINSTITUTIONAL DIVISION, BY ~HE~ 179th DISTRICT

COURT       OF     HARRIS           COUNTY,        TX.      RELATOR FILED A WRIT OF HABEAS CORPUS, CAUSE

NO.     1087158sB             ON     FEBRUARY 14, 2013. ARTICLE 11.07 OF TEXAS CODE OF CRIMINAL

PROCEDURE          AFFORDS           THE     STATE         15 DAYS IN WHICH TO ANSWER APPLICATION. AFTER

HAVING       BEEN SERVED WITH SAID APPLICATION, AFTER 15 DAYS                              ALLOWED TO THE STATE

TO    ANSWER        THE        APPLICATION, THE COURT HAS                      20 DAYS IN WHICH IT MAY ORDER THE

                                                                           1
DESIGNATION OF ISSUES TO BE RESOLVED IF ANY.



IF    THE    COURT          HAS    NOT    ENTERED       AN ORDER DESIGNATING            ISSUES TO BE RESOLVED

WITHIN       35        DAYS THE STATE HAVING BEEN SERVED WITH THE APPLICATION,                       THE APPs

LICATION         WILL       BE FORWARDED TO THE COURT OF CRIMINAL APPEALS FOR THEIR CONSIs

DERATION         PURSUANT         TO ARTICLE 11.07 SEC. 3(c) OF TEXAS CODE OF CRIMINAL PROCs

EDUCRE.      THEREFORE,            THIS    COURT       HAS    JURISDICTION OVER THE         :~     MATTER AND

PARTIES OF THIS PETITION.



                                                             II.

ON     SEPTEMBER                 19,     2007,        THE RELATOR PLEAD GUILTY TO THE FELONY

OFFENSE           OF        AGGRAVATED           sRD:BBERY          IN      CAUSE NUMBER 1087158 :CTHE

PRIMARY           CASE),           AND     WAS SENTENCED TO TWENTY (20) YEARS CONFINEs

MENT        IN     THE           TEXAS DEPARTMENT OF CRIMINAL JUSTICEsINSTITUTIONAL

DIVISION,          BY THE 179th. DISTRICT COURT OF HARRIS COUNTY, TEXAS.



RELATOR           APPEALED             AUGUST         12,     2011,        AND CASE BEGAN IN THE 14th

COURT        OF        APPEALS           ON AUGUST 22,             2011,    AND WAS DISMISSED ON SEPs

TEMBER           22,        2011.        CASE     NUMBER           14s11 i007 20sCr,        BECASUE IT WAS
                   \                                                               .'
NOT      COMPLAINT WITH                   TEX.    R.    APP.P.           26s2   (a)(l),    AND FURTHERMORE

THE      TRIAL          COURT ENTERED A CERTIFICATION OF THE DEFENDANTS RIGHT

TO     APPEAL,              IN     WHICH        THE     COURT        CERTIFIED THAT THIS IS A PLEA

BARGIN CASE,                AND DEFENDANT HAD NO RIGHT OF APPPEAL.



RELATOR           FILED           THE INSTANT APPLICATION FOR WRIT OF HABEAS CORPUS

1087158sA              ON        JANUARY        23,    2012,       AS OF THAT DATE THE MANDATE HAD

NOT YET BEEN ISSUED IN CONNECTION WITH RELATOR'S DIRECT                                             APPEAL,




                                                               2
WHICH         WAS        ISSUED JANUARY 24,          2012, WHICH RESULTED IN DISMISSAL

ON     JULY        11,        2012     BECASUE   THE~    RELATOR'S APPEAL CASE WAS STILL

PENDING. EX PARTE HORTON WR 77, 627s01 (TEX. CRIM. APP. 2012).




                                                  III.

                                         PROCEDURAL HISTORY

ON SEPTEMBER 19,                2007, RELATOR PLEAD GUILTY TO AGGRAVATED ROBBERY

      AND     WAS        SENTENCED        TO TWENTY (20) YEARS          TEXAS DEPARTMENT OF

CRIMINAL           JUSTICEsINSTITUTIONAL                DIVISION. FEBRUARY 14, 2013 RELs

ATOR        FILED A WRIT OF HABEAS CORPUS,                  CAUSE NO. 1087158sB, SEEKING

RELIEF        IN     HIS FIRST GROUND BY CLAIMING THAT HIS PLEA                   WAS INVOs

LUNTARY        BECAUSE           TRIAL COUNSEL COERCED HIM INTO ACCEPTING A PLEA

BY     CALLING           THE     RELATOR'S         MOTHER       WITHOUT HIS PERMISSION WHO

BEGGED        HIM        TO     TAKE     A PLEA OF TWENTY (20) YEARS, OR THE STRESS

WOULD        KILL        HER. RELATOR CLAIMS HE WANTED A JURY TRIAL, BUT THAT

 OUT OF FEAR OF HARMING HIS MOTHER HE INVOLUNTARILY PLEAD GUILTY.



IN     RELATOR'S              SECOND GROUND HE CLAIMS THAT HE WAS DENIED EFFECTs

IVE     ASSISTANCE              OF COUNSEL AT HIS PLEA WHEN TRIAL COUNSEL, SUSAN

JACOBSEN           PERRET,           COERCED THE RELATOR TO PLEAD GUILTY BY CALLING

THE     RELATOR'S              MOTHER      SYAING,       "MOM    MAKE   HIM TAKE THE TWENTY

YEARS".



STATE'S        REPLY  TO BOTH OF THE RELATOR'S ARGUMENTS WERE "NEVERTHs
                                                          ..V
ELESS        AND WITHOUT WAVING THE FOREGOING ARGUMENTS, TBE RESOLUTION

OF     THE     CLAIM           REQUIRES     INFORMATION         CONCERNING TRIAL COUNSEL'S




                                                        3
STRATEGIC          DECISIONS,              AND        CONFIDENTIAL           COMMUNICATIONS WITH THE

APPLICANT.          THEREFORE,              THE        STATE          BELIEVES THAT FURTHER FACTUAL

INVESTIGATION             IS        NECESSARY              TO     DETERMINE     THE   MERIT ,    IF ANY,

TO THE APPLICANT'S INEFFECTIVE ASSISTANCE CLAIM."



IN     THE       STATE'S        AMENDED           PROPOSED ORDER DESIGNATIING ISSUES AND

FILING          AFFIDAVIT,           THE        COURT           ORDERED     SUSAN JACOBSEN PERRET IN

ORDER TO ASSIST IN RESOLVING ISSUES TO FILE AN AFFIDAVIT SUMMARIs

ZING       HER     ACTIONS           AS     COUNSEL              FOR RELATOR IN THE PRIMARY CASE,

CAUSE NUMBER 1087158 AND SPECIFICALLY RESPOND TO THE FOLLOWING:



1. PLEASE          SUMMARIZE              THE    DISCUSSION~S)              PERRET HAD WITH THE APPLs

     ICANT        REGARDING           WHETHER              THERE      WAS     SUFFICIENT EVIDENCE TO

     SUPPORT        A      AGGRAVATED ROBBERY CONVICTION AND ANY ADVICE GIVs

     EN      CONCERNING             WHETHER TO GO TO TRIAL OR PLEAD GUILTY. PLEASE

     INCLUDE        THE        NUMBER           AND        NATURE OF ANY AND ALL "OFFFERS FROM

          THE     STATE"        CONVEYED              TO        THE APPLICANT,     INCLUDING,    BUT NOT

     LIMITED        TO,        ANY REDUCTIONS,                   ENHANCEMENTS,     AND/OR ENHANCEMENT

     ABANDONMENTS DISCUSSED,                      IF APPLICABLE.



2. THE          APPLICANT           CLAIMS " .... HIS TRIAL ATTORNEY,                  SUSAN JACOBSEN

     PERRET;        HAD        EX     PARTE           COMMUNICATION WITH DEFENDANTS MOTHER,

     WHERE        SHE     BY        THIRD        PARTY           COERCION AND MANIPULATIVE LAWYER

     TACTICS,           TOLD DEFENDANT'S MOTHER IF HE DID NOT TAKE A                              TWENTY

     (20)        YEAR     PLEA,           HE WOULD RECEIVE A LIFE SENTENCE;" AND THAT

     "ATTORNEY           PERRET           WENT        FURTHER ON TO PERSUADE THE APPLLEANTS

     MOTHER        SAYING,          "MOM, MAKE HIM TAKE THE TWENTY."                    [SIC].    PLEASE

     RESPOND.

                                                                  4
3. PLEASE           DESCRIBE              THE     MANNER     AND        THE DEGREE TO WHICH PERRET

      REVIEWED        THE        PLEA PAPERS AND                 ADMONISHMENTS WITH THE APPLICs

      ANT;     IF     PERRET              DOES     NOT     HAVE        INDEPENDENT RECOLLECTION OF

      THE     EVENT,           PLEASE           STATE    WHAT         PERRET'S USUAL    A~D    CUSTOMARY

      PRACTICE        WAS        AND        ALSO        STATE WHETHER PERRET HAS              ANY REASON

      TO     BELIEVE           PERRET VARIED FROM THAT PRACTICE IN THIS PARTICUs

      LAR CASE.



4.    PLEASE        STATE        WHETHER           PERRET        BELIEVES      THE APPLICANT'S PLEA

      WAS KNOWINGLY AND VOLUNTARILY ENTERED.



5. PLEASE           STATE        WHETHER           PERRET BELIEVED THE APPLICANT'S GUILTY

      PLEA TO BE ADEQUATELY SUPPORTED BY THE EVIDENCE.



6. ACCORDING              TO     THE            APPLICANT,           THE STATE NEVER RECOVERED THE

      DEADLY        WEAPON           IN     THE:    INSTANT CAUSE.           PLEASE EXPLAIN HOW THE

      ABSENCE        OF        THE        DEADLY        WEAPON WOULD HAVE AFFECTED TRIAL AND

      WHETHER        PERRET           DISCUSSED           THAT        INFORMATION     WITH APPLICANT.

      PLEASE        ALSO        EXPLAIN           WHETHER PERRET BELIEVED THE INFORMATION

      ABOUT     THE        DEADLY           WEAPON       COULD         BE EXCLUDED,    IN LIGHT OF NO

      DEADLY WEAPON BEING RECOVERED.



FURTHERMORE,              THE        COURT        DID     ADOPT        THE   STATE'S PROPOSED ORDER

FOR        FILING     AFFIDAVIT                 IN CAUSE NUMBER 1087158sB. SUSAN JACOBSEN

PERRET        WAS     ORDERED TO FILE HER AFFIDAVIT WITH THE POSTsCONVICTs

ION        WRITS DIVISION OF THE DISTRICT CLERK'S OFFICE,                               1201 FRANKLIN




                                                                 5
THIRD        FLOOR,           HOUSTON,              TEXAS       77002,       WITHIN   SIXTY(60) DAYS OF

THE     SIGNING              OF      THIS           ORDER,            WHICH WAS SIGNED AT 12:20 P.M.

ON     JUNE         19,       2013        BY        JUDGE FRANK C. PRICE,             PRESIDING JUDGE AT

THAT TIME.



HEREBY THE             COURT         IS                                       DAYS    DELINQUENT    IN NOT

ANSWERING            THE          ORDER IT ISSUED,               FROM       THE SIGNING OF THIS DOCUMs

ENT.     MOREOVER                 RELATOR           HAS     A    CLEAR RIGHT TO HAVE ISSUES HEARD

AND     STAND          BEFORE            A     MAGISTRATE TO RESOLVE SAID ISSUES PURSUANT

TO      ARTICLE              11.07        3     (b) (c) (d)           OF    THE TEXAS CODE OF CRIMINAL

PROCEDURE.             THUS         RELATOR HAS A CLEAR RIGHT TO HAVE ISSUES RESOLs

VED.



THE     COURT          OF         CRIMINAL           APPEALS          HAS     HELD THAT MANDAMUS RELIEF

MAY     BE         GRANTED          IF        THE     RELATOR SHOWS:            (1) THAT THE ACT SOUGHT

TO     BE COMEELLED                 IS        PURELY        MINSTERAL,         AND (2) THAT THERE IS NO

ADEQUATE            REMEDY          AT        LAW.        WINTERS          V. PRESIDING JUDGE,     118 S.W.

3d     14 7        ;:(rEX.        CRIM.        APP.        2003),          EX PARTE YBARRAY 149 S.W. 3d

147 (TEX. CRIM. APP.                         2004).



IN     CONCLUSION                 RELATOR           HAS     SHOWN s(1) TffAT IT IS THE MINSTERAL

DUTY     OF         THE       JUDGE           OF THE       179~,      DISTRICT COURT, HARRIS COUNTY,

TEXAS         TO      UPHOLD         THE ORDER OR SEEK ANOTHER REMEDY,                      AND (2) THAT

THERE         IS      NO ADEQUATE              REMEDY~          AT LAW TO APPEAL. RELATOR HAS FURs

THER     SHOWN            THAT       IT        IS     NECESSARY             TO DETERMNINE THE RELATOR'S

INEFFECTIVE               ASSISTANCE                CLAIM AND INVOLUNTARY PLEA CLAIM, PURSUs

ANT     TO          ARTICLE          11.07 3(b) (c) (d) OF THE TEXAS CODE OF CRIMINAL

PROCEDURE.


                                                                  6
THUS      RELATOR        HAS     MET        ALL     REQUIREMENTS FOR MANDAMUS       RELIEF.

IN     CONCLUSION         RELATOR           RESPECTFULY      REQUEST      THAT THE COURT OF

CRIMINAL           APPEALS GRANTS HIS APPLICATION FOR WRIT OF                     MANDAMUS,

AND      DIRECT     THE        RESPONDENT,           JUDGE KRISTIN M. GULNEY, TO UPHOLD

HIS      ADOPTED        ORDER     OF        STATES AMENDED PROPOSED ORDER ISSUES AND

FOR,i~     FILING        AFFIDAVIT, OR .. :LET RELATOR APPEAR BEFORE MAGISTRATE

AS     REQUIRED     BY'. LAW      UNDER           ARTICLE   11.07 TEXAS CODE OF CRIMINAL

PROCEDURE         AND     THE     FOURTEENTH           AMENDMENT     OF   THE UNITED STATES

CONSTITUTION.



                                                   PRAYER


WHEREFORE         PREMISE       CONSIDERED,            RELATOR     RESPECTFULLY PRAYS THAT

THE      HONORABLE        COURT        OF     CRIMINAL APPEALS GRANTS THIS FOREGOING

PETITION      FOR       WRIT OF MANDAMUS::.AND THERE AFTER DIRECT THE RESPONs

DENT     JUDGE      KRISTIN M. GULNEY TO UPHOLD HIS ORDER OF STATES AMEs

NDED      PROPOSED        ORDER ISSUES AND FILING AFFIDAVIT, OR LET RELATOR

APPEAR      BEFORE MAGISTRATE AS REQUIRED BY LAW, ARTICLE 11.07 TEXAS

CODE OF CRIMINAL PROCEDURE.




                                                             RESPECTFULLY SUBMITTED,



                                                             !tkn~k
                                                             ETHAN Wk E HORTON
                                                             COFFIELD UNIT
                                                             2661 f .m.   2054
                                                             TENNESSEE COLONY,     TEXAS
                                                             75884




                                                      7
                                   CERTIFICATE        OF     SERVICE




     I, ETHAN WANYE HORTON, DO HEREBY CERTIFY THAT A TRUE AND CORRECT
COPY OF THIS FOREGOING INSTRUMENT HAS BEEN SERVED UPON THE RESPONDENT
1 JUDGE  KRISTIN M. GULNEY, 1201 FRANKLIN, HOUSTON, TEXAS 77210 ON THIS
DAY OF FEBUARY 23, 2015.


                           SIGNATURE        ~ WfL~ ~~~
                                            TTHAN wAYNf'HoRTON i


                                            SWORN    DECLARATION


      I, ETHAN WAYNE HORTON, TDCJsID NO. 1459524, RELATOR, PRO SE
DO HEREBY DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING STATE
sMENTS ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF
EXECUTED ON THIS 23rd DAY OF FEBUARY 2015.


                         SIGNATURE :    .
                                       ETHAN
                                            ~     ~~i
                                             WAYNE HO N
                                                        fh:;;t;:
                                                             .
                                                                       .'




                                                     RESPECTFULLY SUBMITTED

                                                    ETHAN    WAYNE      HORTON
                                                    1459524
                                                      H.H. COFFIELD UNIT
                                                      2661 F.M. 2054
                                                    i TENNESSEE COLONY, TEXAS
                                                     75884
