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TDCJ#622814 M c 11 ~ ©
3001 s. Emilch:r.me @UHTOF`A{CHNWN
Beeville, Tex. 78102 JUL 08 2015¢]"

Court of Criminal Appeals

capitol Station . §h@%@@§?@,@#@m

P.O. Box 12308
Austin, Texas 78711

RE: Petition for Writ of Mandamus
Dear Clerk, ?- f ?i;::;

Enclosed please find a Petition for Writ of Mandamus relating
to wR-29,392-21.

Will you please file and set the cause for review of the Court

to address the issues presented.

Roy L. Smithwick/

7/</' /5

NOZ

 

In THE COURT OF CRIMINAL APPEALS

 

` In Re ROY LOUIS`SMITHWICK JR.

 

 

Roy L. Smithwick, Jr.
Pro-Se _
TDCJ#622814 McConnell ' \j
3001 S. Emily Dr. '
Beeville, Tx. 78102

lDENTITY OF PARTIES AND COUNSEL

RELATOR, Is a person confined in the Texas Department of Criminal
Justice and may be contacted as addressed below.

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

Respondent, Is a Clerk for the Court of Criminal Appeals and

£ may be contacted at the address below.

Clerk.of the _

Court of Criminal Appeals

P.O. Box 12308, Capitol Station
Beeville, Texas 787ll `

TABLE OF CONTENTS

 

 

 

 

 

Identitiy of Parties and Counsel II.
Table of Contents;- --II.
Index of Authorities II,III.
Statement of the Case-- --IlI,IVv
Statement of Jurisdiction IV,
Issues Presented-- --V-
Statement of.Facts V}VI.
Arguement-- --l.
Prayer 5.
Declaration-- -- __6.
INDEX OF AUTHORITIES
l. Cr. Codes and Proc. Article ll.O7 Sec. 4a(l)(2)- -------- III>3
2. Tex. Gov. Code § 22. -- IV r;
---------- l.

3. Haines v. Mays 404 U.S. 319,320 (1972)----¢---

II.

4; wade v. ways 689 slw.za'ésa,'897 (1985 T¢x.cr.App) ------
5. Ex Parte Neal Hampton Robbins Qt.Cr;App. No;73/484-02 -~
6. 83rd. Legislature j H.B.41847, S.B.~825, & S.B.-l€ll----
7. Will v. United States 389 U.S; 90, 96 (1967) --

3.'Meissner v. Fuchs, 290 s.w.za 941, 944 (Tex.civ.App. -
Galveston 1956) ---------------------------------------

9. Wortham v. Walker [133 Tex. 255] 128 S.w.Zd @ llSl (1939)

STATEMENT' OF "THE CASE `

The clerk of the Court of Criminal Appeals has set aside
the Legal Statues' of Article § ll.O7 Sec. 4a(l)(2) "New Legal
Basis" and "Constitutional Violations" ‘by a State Prosecutor
to defer: to the Court of Criminal'Appeals Order to not accept
Relators `Application for ll;07 unless he "... is able to show
in 'such an application that any claims presented have not been
raised previously and .that they could not have been presented
in a previous application for a Writ of Habeas Corpus."

The clerk of the Court of Criminal Appeals has the Minister-
ial Duty to Obey the Courts Orders within the Statues of Law.

Texas`Criminal Codes and Procedures Art. ll.O7.Sec. 4a(l)(2)
allows for a sucessive filingv if a'“NEW LEGAL BASIS"or a
"CONSTITUTIONAL VIOLATION " ocurred that no rational juror could
havefmn©'&dathGmHIy. beyond a Reasonable Doubt.

Legislation has 'enacted' Article ll.073 `which this Court
.of Criminal Appeals has »establishedj is a "NEW LEGAL BASIS"
previously unavailable for consideration in a Prior Application.

III.

Relator is citing for the first time that the Trial Prosecutor
Knowingly and' Intentionally .violated his Constitutional rights'
to a Fair Trial by having pre-Trial Knowledge that the State
Offerred Scientific Testimony wa;: going to be Falsified. With
out Such fabricated Scientific.Evidence Relator would not have
been found Guilty beyond a iReasonable Doubt and Maintained
his innocence.

Relator has `Satisfied the `Requirements for a Successive
Application 'Under Sec.l 4a(l)(2) due to the "NEW LEGAL'BASIS"
previously' unavailable for consideration in a`Prior Application
(Article“ll;OV3)'and the'know§hgly fabricated Scientific Evidence
ViOlated RelatOr”S""CONSTITUTIONAL RIGHT TO`A FAIR TRIAL" which
iSr a "MISCARRIAGE OF_JUSTICE" by“a State Offlcial.

Wherefore the Clerk of the Court of Criminal Appeals has
the Ministerial Duty to file and set for review Relators Application
for Habeas Corpus Relief or at the Minimum recomend that a Record

be developed to base a decision on.

STATEMENT OF JURISDICTION

This Appeals Court has Jurisdiction to issue Writs of Mandamus
over Matters concerning Ministerial Duties of a State Official;
Under Tex.Gov't Code § 22.

Relator has ,no other Adeguate Legal Remedy to Petition
the Clear Ministerial Duty of the Clerk of the Court of Criminal
Appeals to follow the Courts Orders within the Statutes of Law
to allow Relators Constitutional Right to Access the Court by
filing and Setting the Cause for Review.

IV.

ISSUES PRESENTED

The Clerk of the Court of Criminal Appeals has Abused his
Discretion and Ministerial Duty by Refusing Relators Due Process
Right to Application of Law to file and set for consideration
of a successive Application for Habeas Corpus Review which has
met the Reguirements set out in Criminal Codes and Procedures
Article ll.07 Sec. 4a(l)&(2).

(Article ll.O7 Seo 4a{l])

Relator has a Constitutional Due Process Right to Application
of a~ "NEW LEGAL BASIS" I(Art. ll.O73) which was previously
unavailable for consideration in a Prior Application.

(Article ll.O7 Sec. 4a[2])

Relator has a Constitutional Right to Due Process of Law
to have a FIRST TIME CLAIM of a "Miscarriage of Justice" addressed
on the merits concerning the TRIAL PROSECUTORS KNOWINGLY AND"~
INTENTIONALLY falsification and fabrication of scientific testimony
which violated Relators Constitutional Due Process Right to
a FAIR TRIAL. No rational Juror would have found Relator guilty
beyondiireasonable doubt absent the constitutional right'violations

to a FAIR TRlAL by the Prosecutor.

STATEMENT OF FACTS
On .3/18/2009 Relator was cited for Abuse of Writ. The
Instructions .to the Clerk were not to accept another_Application
for Habeas Corpus Relief unless Relator "... is able to show

in such an application that any claims presented have not been

V.

' `l

rasied previously and that' they could not have been presented
in a previous application for a Writ ochabeas Corpus~"

On Sep. l, 2013 Legislation enacted an Amendment to Criminal
Codes‘ and Procedures to' addv Article ll.073 that pertained to
certain Scientific EvidenceQ'

On Nov.` 26, éOl4 the Court of Criminal Appeals found that
Article ll;O73 satisfied the requirement for a Successive review
for relief under ‘Art.' ll.O7 Secl 4a(l); - A "NEW LEGAL BASIS"
previously unavailable for consideration in a prior Application.
(See Ex Parte Neal Hampton Robbins, WR+73,484402)

- Before ~Exercising' Relators Newly' Granted Right to review
on a NEW LEGAL BAsIs he DILIGENTLY SoUGHT to find'whether the
State Prosecutor 'knew the' Expert Testimony~ offered at trial
was false and unreliable by requesting the Scientific‘Documents/
Reports used for Pre-Trial Preparation.

83rd' Legislative House. Bill.‘1847r Senate Bill 825, and'
Senate» Bill ll6ll enactment all»revolve around the Transparency
of `the Prosecutors’ Office to. Disclose information_to met the
Pubbics demand 'to prevents or resolve wrongfull convictions and
provide a Constitutional Due Process Rights to Fair Trials to
Citizens.

.Despite the Publics Demands the Webb Qo. listrict'Attorney
refused to .release 'scientific documents/Reports used' by the
Trial- Prosecutor to' prepare for Trial. (Relator presents Due
Diligence to provide proof of his claims but is being obstructed
to his legal right to access the proof for the claims.)

VI.

Relator Applied for Habeas Corpus Relief on or about Jan;
7, 2015 citing the New Legal Basis of Art. ll.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 developF the records for
the Court of ~Criminal Appeals clerk or the`court to review and
base a decision on the Scientific Trial Testimony that has shown
to be intentionally falsified and relied upon by the State
to obtain a conviction.

On 3/18/2015 The Clerk of the Court of Criminal Appeals,
without a developed‘ record from the Trial Court, found that
Relator did not met the standard for review set out in the Appeals
Court Order and ignored the legal statue of Article ll.07 Sec§ 4a
(l)&(Z).

Relator did met the_ standard for review under the Statue
of Art. ll.07y Sec. ;a(l)&(Z); - "NEW LEGAL BASIS" previously
unavailable‘ for consideration 'in a' privious application and
Constitutional Due Process violations to a Fair Trial by-a State
Prosecutor, absent such violations no rational Juror would have

found Relator Guilty beyond a Reasonable Doubt.

ARGUEMENT
Relator?fi§“@proceedingrtPro§Se:tin¥ethisscausemandiaskssthe
Court ofeCriminal;Appeals toihold him to agless Stringent standard
then' formal pleadings made by an Attorney; (See -- Haines v.
Hernar, 404 U.S. 319, 320 [1972])
"In determining the specific nature of the Extraordinary

l.

relief sought, this Court will not be limited.by the denomination
of Petitioner's pleadings, but will look to the essence of the
pleading, including the prayers, as well as the record before

Us." (See Wade v. Mays 689 S.W.2d 893, 897 [1985 Tex.Cr. App,])

On 3/18/2015 The Clerk_ of the Court of 0riminal'Appeals
found Relator _did not met the Standard for review under Order
set out by the court.

The Court of Criminal Appeals set out in its order that
the Clerk was .not. to accept another Application from Relator
unless he "... is able to show in such an application_that any
claims presentedl have not been raised previously and that they
could not have been presented pin a previous application for
a Writ of Habeas Corpus."

The‘ Clerk -of“ the Court has the Ministerial Duty_to also
apply the Statues of Law aside from the Courts Order.

The Court has established ink Ex Parte Neal H. Robbins,
WR-73,484-02, that-Article ll.073 is a FNEW LEGAL BASISF previously
unavailable for consideration in a prior application and satisfies
them requirements for a successive application Under Art. ll.07
Sec. 4a(l).

Relator is citing article _ll.073 as a "NEW LEGAL BASIS"
for relief as the Article was previously unavailable for consider-
ation in a prior application for relief.

Relator has therefore met the Standards for relief under
Legal'$tatue oqurticle ll.07 Sec. 4a(l).

2.

Also, Relator“is citing for the FIRST TIME that a "Miscarriage
of Justice" occurred by the Trial Prosecutor knowingly and inten-
tionally offerring~ false and unreliable Scientific testimony
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 beyond a reasonable doubt.

Relator has therefore met the_ Standard for relief under

Legal Statue of Article ll.07 Sec.4a(2).

NO DEVELOPED RECORD

lt should be noted that there has never been a developement
of the records considering the Affidavits and Exhibits that
show the Trial Prosecutor'"KN®WINGLY" relied upon false scientific
testimony to obtain a-conviction which denied Relator a Constitu-
tional Right to a Fair Trial by a State Official;

Should the Trial Court have developed the record there
exsist 'the 1 likely hood _of finding' a Miscarriage of Justice
Occurred and the 'Clerk‘ of -the Court would have not made the
erroneous 'findings ‘because* a record would have been`available

to address the issues presented.

fDUE DILIGENCE OBSTRUCTED
Relator.'has attempted to address the Miscarriage of Justice
claim~ by ireguesting ‘the Scientific 4Documents/Reports used to
prepare for Trial by the Prosecutor.- Relator is legally entitled

3;

1

to the scientific Doucuments/Reports through new Laws passed.
to prevent or resolve wrongfull convictions but the Prosecutors
Office refused to disclose' the’ information 'even though the
Public demanded- Legislators 'to enact Laws for the Trahsparency
of the Prosecutors Office as the result of wrongfull convictions
due to the Prosecuots withholding evidence. and Reports»

'A Non-Disclosure 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 Relator is legally entitled to.

Relator has Shown a'Due Diligence~ to investigate and properly
present the 'claim of_a Miscarriage of Justice but the Webb Co;
D.A.'s office does~ not `want to ’abide by the basic priciples
of the U.S. Constitution.' `This x"undermines-the Publics Trust
in the Governments ability to Proviaé FAIR~TRIAL.to it'S citizenry.

y Such Constitutional Violations` can not be set aside as

part of Justice and go unaddressed.

CONCLUSION
Relator ~has shown a new legislative granted right of a
"NEW LEGAL BASlS" standard of review, presents a clear Ministerial
Duty to file and set the issues for Habeas Corpus Relief to
be addressed on their Merit with a Developed Record. ~ §§
A First time claim sf a State Prosecutor violating.Relatorfs
Constitutional Due Process Right to a Fair Trial has never been

'4.

addressed on; the_ merits.dtThis 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
is entitled to the tMinisterial Duty of the Clerk to file and

set for the Apeals Courts review issues presented.

Relator has- Diligently sought_ to provide the Scientific
Documents used by the Trial Prosecutor but-has been denied access
to the information even though -disclosure is' required by Law
enacted by the `public demands of State Legislators\ to provide
fair trials to its citizenry.

The entitledment to review is "Indisputable" Will v. United
States 389 U.S. 90, 96 (1967) and "Abundantly clear." Meissner
v. Fuchs, 290 S.W.Zd 941, 944 (Tex.Civ.App. - Galveston 1956)
Relator has. presented an~ "Issue to require the execution of
matters ,whose merit -is beyond dispute..." (Wartham v. Walker

[133 Tex_255] 128 S.W.Zd at 1151 [1939])

PRAYER
Wherefore Relator Prays that lthe `Clerk' of the Court of
Criminal__Appeals be instructed to FILE ANb SET for Review the
Application .for'Habeas Corpus Relief recieved on 3/6/2015 and/or~
that the Court consider other.relief.such as having the Trial
Court develope a record for review by conducting an evidentairy

hearing addressing the claims.

 

 

’Roy L. Smithwick'Jr.
TDCJ#622814~McConnell
3001 S. Emily Dr.

` Beeville, Tx. 78l02

`DEcLARATIoN

4I, Roy L. 'Smithwick,v Jr.' Do"Here-by Declare under the
penality of perjury that every statement in the foregoing Petition
for Writ _of Mandamus` is true and correct. Also-that every
conclusion made from the information available to me is also
true and correct to the best of my knowledge. -

/é% 7/€;2¢%22%
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