                             RODOLFO      GARCIA   768418
                                                                 3l,%s-to
                             LYNAUGH      UNIT

                             1098    S.HIGHWAY     2037

                             FT.STOCKTON,TX        79735




COURT" OF    CRIMINAL    APPEALS    OF   TEXAS

P.O.BOX     12308,CAPITOL    STATION,

AUSTIN-, TEXAS   78711                                           RECEIVED IN' .
                                                            COURT OF CRIMINAL APPEALS
                                                                   FEB 23 2015
       RE: THE STATE OF TEXAS VS.RODOLFO GARCIA CAUSE* 2154

and 2156.                                                        Abel ACCtife. Clfflk
       Dear Court Of Criminal Appeals Of Texas:
In June 24th 2013 I sent two Motions to the 83rd District Clerk
to this address Gayle Henderson knxkhxsxai&i&KBSs 400 S.Nelson St.
Fort   Stockton,Texas      79735.


        The two motions are for Court to order District Attorney
to file Motion to reopen punishment in the above cause numbers.


        To this day Feb.       /%        2015 I would like confirmation when
these documents were filed with the Court and aproximate date
these documents are schedule on the Court Docket for considerati
on. Your assistance in this matter is appreciated.
Thank    You.



                                                    Sincerely,


                                                   ^J<®MJLp9u ManrA)
                                      CAUSE    No.2154          &   2156



THE   STATE     OF   TEXAS                                                        IN   THE    83rd   DISTRICT

        Vs.                                                                       COURT      OF

RODOLFO    ALVARADO      GARCIA                                                   PECOS      COUNTY,TEXAS



                             MOTION   FOR    RULING    ON   PENDING             MOTION

                                      TO    REOPEN    PUNISHMENT




        Comes now Rodolfo A.Garcia and moves                             this    court to rule upon pet
itioners motion for District Attorney to reopen punishment mailed this
court in June 28,2013. In support petitioner would show the following.
        The Court of Criminal Appeals has ruled in RE STATE EX REL YOUNG
236 SW.3d 207,210 (XR.App 2007)(Trial court has a ministerial duty to
rule on a properly filed motion timely presented for a ruling).See als
0 IN RE SHAW 175 SW.3rd 901,904(TX-App.Texarkana 2005)(WHEN A MOTION
is properly filed and pending before trial court,considering and ruli ,
ng on that motion is a ministerial act and mandamus may issue to comp .
el    trial court       to act).


         Petitioner          has given trial court proper notice by way of motion
to     reopen        punishment where this courts judgement of two 40 year fee^s
terms     consecutive          violate       Article        1       ss     15,Tx.Const.By removal of
from a felony altogether and violates Art.26.14 VACCP'S prohibition
of sentencing in any manner than by assessment of an absolute fixed
term,or empanelinq a iurv to assess the punishment.


         This court has the power and authority to correct an illega
1 sentence at any time,see MIZELL V.STATE                                119 SW 3rd 804,806-807(2003
and it is mandatory the. court correct its void,it has no discretion
whether it wants to hear the issue,see METROPOLITAN TRANSIT AUTHORITY
VS. JACKSON 212 SW 3rd 797,802 (HOUSTON APP-2006).


                                                (1)
                                                       -2-

                                    GROUND OF ERROR No.                  1


                             INEFFECTIVE ASSISTANCE OF TRIAL
                               COUNSEL IN PUNISHMENT STAGE


          1. The sixth amendment of the U.S.Constitution guarentees every
accused          the     right           of    effective assistance of counsel in a criminal
proceeding             against           him;and        the accused must demostrate counsel acts
or omission failed to meet the prevailing professional norms expected
of     competent             counsel,          STRICKLAND              -V.WASHINGTON       104    S.Ct. 2052 At
2066       (1980).He              must     also        demostrate he was prejudiced by counsels
deficient          performance,ID                 at     2067."Prejudiee              is    demostrated      when
reasonable             probability             exists           that     the . outcome of proceeding may
have      been    different:, ID at             2068"       .



       2. An attorney is responsable for knowing the laws and procedures
of the State he practices in and how those laws and practices apply,
FIELDING          V.     STATE           719    SW     2nd 361,367 (APP.Dallas 1986);                    EX PARTE
WELBURN,          785        SW     2nd 391,393-394 (Crim.App.1980)(Trial Counsel must
have      a      firm        grip on the applicable law.) When he fails to properly
prepare,argue or object co proceedings not authorized by iaw,deffenda
nt has been prejudiced by incompetency!


     3.       In •the instant case               trial          counsel      failed   to   famalarize himself

with       the     laws           governing          plea        proceedings;         that failure resulted
in     defendant             not being told he was constitutionally prohibited from
entering          into        contract         with the State to accept a 40 year sentence
under     Art.     5    ss    10,TX.Const.            And       the    Criminal   laws     of   Texas.
                                                      (3)


       4.    Defendant         was       never    admonished       Texas       Law,Art.26.14     VACCP


limited       punishment            to    the    minimum    term    for    a    first   deqree   felony

 (5)    Years and if the court                     refused to follow leqeslative fixed

terms,defendant                had        the     right to withdraw his plea and proceed
to trial by jury.
       5.    Defense counsels ignorance the plea practice developed
in the District Courts violate defendant's right of trial by

jury        under     Art.          1     ss     15 Tx.Const,by unlawful removal of jury
from a felony matter,conduct an unlawful bench trial not provided
by     law and was prejudiced by entering into an unlawful agreement
to surrender liberty before a judge having no authority to assess
punishment           beyond             the     absolute     fixed        term established by the
legislature; thus violate Art. 1 ss 15,TX.Const, and Art. 26.14
VACCP.

       6.     Defense          counsels           blind     acceptance of plea practices in
the     District          Court           without     having        examined Art.          26.14 VACCP,
requiring           absolute             fixed     terms or jury punishment has been law
since        1965,not          to        understand        this     caused           defendant to waive
his     liberty           in    violation of common law and suffer imprisonment
of 3 years beyond the 5 years prescribed by legislature.


                                        GROUND OF ERROR No.2

                               PROSECUTORIAL         MISCONDUCT       IN       THE

                                    SENTENCING STAGE OF TRIAL


      7.Prosecution, like defense counsel/is responsible for knowing
the     laws        and        procedures          of the State he practices in,FIELDING
V. STATE, supra (1986);. EX PARTE WELBURN, supra (1990).
                                                     (4)




       8.        Prosecution,like               defense              counsel,failed          to   understand
the constitutional provisions and statutory limitations governing
plea        proceedings;             that faailure caused prosecution to mis advise
the judge of proper punishment range fixed by legislature (5)yea
rs     that        limited           judges      authority to assess punishment;causing
judge        to     enter        a     void        judgement of sentence beyond statutory
maximum,Art.26.14 VACCP And violate right of trial by jury under
Art.l       ss    15.Tx.Const,          and     conduct            an    unlawful    bench    trial..

        9.        Had    prosecution             a       firm grip on the common law base of
all     Texas           Law,defendant            would             not     have   been   allowed    to   enter

agreement to voluntarily surrender is liberty because prosecution
like        defendant,is             prohibited               from       seeking .loss of liberty at
its discretion,punishment is beyond the scope of either party
and duly placed in the hands of a jury or fixed term by legislati
tion.                                                         .,                                         ,


       10.       Prosecution's ignorance of the unlawfulness of punishment
in     this matter,and refusal                       to activate its mandatory ministerial
duty        under        Art.44.02 (A)(6)VACCP to reopen punishment when made
aware        such       was      illegal         shows             bad faith sufficient to deprive
defendant of due process of law by refusing to render corrective
process available under law to leave defendant in an unconstituti
onal imprisonment beyond punishment established by the
legislature of Texas.


                                     * GROUND      OF    ERROR- No . 3


                          VOID       JUDGEMENT          AND        ILLEGAL   PUNISHMENT




        11.        Defendant           motioned          this court for issuance of an order
that prosecution file for reopening of the punishment to correct
an otherwise void punishment beyond statutory maximums for plea
proceedings;              in     this        the        court has not address the motion for
ordered           prosecution           to      commence                correction       authorized      under
                                -5-



Art. 44:02 (A)(6) VACCP., to leave defendant under a void iudqeme
nt as discussed in the motion to 'reqpen, as such', this court has
shown little regard for its oath of office and less for the
rights of the citizen ...under State or U.S. Constitutional law
of due process, .or due course of law. ...     .   ,., -.   ;..   . ,,j;/t
   12. Because.none appear aware Texas Law does not allow removal
of jury from', a felony case with the exception when punishment
is absolutely fixed by the 'legislature,defendant submits the
current practice allowing full bench trial on a plea is based
on an erroneous presumtion a. 1966 change in Article^.07 ss2         ^;
VACCP. Allowing.' jury to find guilt and judge to assess punishment
has" been misconstrued' deliberately to subvert the mandatory
minimum sentence authorized in Art.26.14~VACCP without concern
trial judge usurps jury authority in, ,violaton of Art.l ss 15.TX,
Const.(Jusy- to. remain inviolate in a felony matter). Void punishm
ent" is a'.'* structural .error raisable at any .time, MATH V. STATE
817 SW 2nd, 335, 3.36 (1991) Cf.EX PARTE BECK 922 SW 2nd 18\,182_ ;
(Tc. Crim.App.199.6) And. the court of .Criminal Appeals
has. ruled ^Habeas relief .will issue; to .person in custody of a
void sentence because, punishment •as unauthorized,see EX PARTE
Mciver: 586 SW 2nd 851,854 (1979).


    13 Defendant is entitled to Habeas Corps relief and dischar
 ge for time, served because failure of defense counsel,prosecution
 and trial .judge to .conduct itself within the confines of the
 law have prejudiced defendant where he has lost witnesses,evid
 ence and confidence his rights will be adheared to where custom
 and practice superceeds legal knowledge what is allowable under
 common   law.
       For the -reasons stated above,habeas corpus shoullbe granted
 and defendant be ordered release from further restraint for time
 served.




                                                        Respectfully Submit
                                                        ted,

                                              RODOLFO Garcia       768418
                                              Lynaugh Unit 1098 S.
                                              Highway 2037
                                              FT.STOCKTON,TX 79735_




                                UNSWORN   DECLARATION



       I,Rodolfo A.Garcia,being incarcerated in the Texas Departme
nt of Criminal Justice Lynaugh Unit on Pecos County Texas.,Hereby
swear the. facts and statements     in this document       are   true:and
correct. Sworn to under penalty of perjury,this                   day of
     •fcL />? 2015.

                              CERTIFICATE   OF   SERVICE



       I certify I have placed a document entitled brief in suppor
t of Habeas Corpus in the United States Mail,postage pre-paid and
addressed to Gayle Henderson/District clerk,83rd District Court,
400 S.Nelson,Fort Stockton,Texas 79735 on this date the                /g
DAY OF -/~g.jb« / f?   2015 Sworn to under penalty of perjury.



                                              ^J<kdafLfa Jimwifd
                                  (6)
                                  CAUSE     2154       &   2156



THE   STATE     OF   TEXAS                                        IN THE 83rd DISTRICT COURT
         VS.                                                      OF PECOS COUNTY,TEXAS
RODOLFO    GARCIA                                                 FT.STOCKTON,TEXAS     79735




                      MOTION      FOR   DISTRICT           ATTORNEY
                             TO   REOPEN     PUNISHMENT


         COMES NOW RODOLFO GARCIA AND MOTIONS THIS HONORABLE COURT TO
ORDER     THE       DISTRICT        ATTORNEY FOR THE 83rd JUDICIAL DISTRICT OF PECOS
COUNTY     TEXAS       TO     REOPEN PUNISHMENT IN THE ABOVE NUMBERED CAUSE WHERE
THE RECORD REFLECTS PUNISHMENT RECOMMENDED BY PROSECUTION AND ASSESSED
BY THE COURT WAS OUTSIDE STATUTORY RANGE GOVERNING PLEA PROCEEDINGS.

                             JURISDICTION TO REOPEN



         PROSECUTION HAS AUTHORITY TO REOPEN PUNISHMENT BECAUSE:
ART. 1 ss 13 TX CONST.PROVIDES IN PART EVERY PERSON,FOR AN INJURY DONE
HIM...    IN HIS PERSON SHALL HAVE A REMEDY BY DUE COURSE OF LAW.

               ART.l ss 19 TX. CONST. PROVIDES NO CITIZEN OF
               THIS STATE SHALL BE DEPRIVED OF ... LIBERTY...OR
               IN ANY MANNER DISFRANCHISED WITHOUT DUE COURSE
               OF    LAW.


               ART.44-01       (a)    VACCP PROVIDES THE STATE AUTHORITY
               TO APPEAL       SENTENCES          IF   ILLEGAL.


                             LAWS    GOVERNING         ISSUE


               ART.l SS 15 TX.CONST.PROVIDES TRIAL BY JURY SHALL
               REMAIN       INVIOLATE.


               ART.5 ss 10 TX.CONST.PROHIBITS PARTIES IN FELONY CASES
               FROM VOLUNTARILY GIVING UP HIS LIFE OR LIBERTY UNDER
               COMMON LAW,          WHICH    IS   CODIFIED IN:

               ART.26J.4 VACCP LIMITING SENTENCING IN PLEA PROCEEDINGS
               TO AN ABSOLUTE FIXED TERM BY LEGISLATION OR SENTENCING
               BY    JURY.




                                            (1)                           J®- CRIMINAL AB
                                                                                    v., AP

                                                                           fta ?3 201^
                                               (2)


           Petitioner        asks     this   court    to render a      decision on his       motion

for     District       Attorney        to    reopen punishment within 15 working days
from receipt of this Motion;                 otherwise petitioner will seek Mandamus
to compell performance.




                                                             Respectfully Submitted,




                                                                    Rodolfo    Garcia    768418




                                    CERTIFICATE      OF   SERVICE




      Icertify I have a document titled Motion for ruling on pending
motion       to     reopen     punishment         in the U.S.       Mail postage pre-paid and
addressed to Gayle Henderson,District Clerk,400 S.                            Nelson Fort Stockt
on    ,Texas      79735.



      On     this     the-     /s     -day   of      Feb.2015       sworn to under penalty of
perjury.


                                                                     Rodolfo    Garcia    768418




                                                                     Lynaugh Unit
                                                                     1098 S.Highway 2037
                                                                     Ft.Stockton,TX       79735
